Federal Register Vol. 48, No. 64 Friday, April 1, 1983 ... · Federal Register / Vol. 48, No. 64 /...

Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 122, 123, 124, 125, 144,145, 146, 233, 260, 261,262, 263, 264,265, 270, and 271

[FRL 2293-51

Environmental Permit Regulations:RCRA Hazardous Waste; SDWAUnderground Injection Control; CWANational Pollutant DischargeElimination System; CWA Section 404Dredge or Fill Programs; and CAAPrevention of Significant Deterioration

AGENCY: Environmental ProtectionAgency.ACTION: Final Rule.

SUMMARY: This rule reorganizes thepresentation of permit programrequirements governing the HazardousWaste Management program under theResource Conservation and RecoveryAct (RCRA), the Underground InjectionControl (UIC) program under the SafeDrinking Water Act (SDWA), theNational Pollutant DischargeElimination System (NPDES) and theDredge or Fill (§ 404) programs underthe Clean Water Act (CWA), and thePrevention of Significant Deterioration(PSD) program under the Clean Air Act.This rule makes no substantive changesto any of the affected sections. TheAgency is simply physicallydeconsolidating its Consolidated PermitRegulations in response to thePresident's Task Force on RegulatoryRelief which asked that theEnvironmental Protection Agencyreview the Consolidated PermitRegulations. Our intent is to make theregulations easier to understand and touse.

a Part 122 of the Consolidated PermitRegulations is split into portionsapplicable specifically to RCRA (newPart 270), UIC (new Part 144), 404 (newPart 233), and NPDES (mostly remainingin Part 122).

e Part 123 of the Consolidated PermitRegulations is split into portionsapplicable specifically to RCRA (newPart 271), UIC (new Part 145), 404 (newPart 233), and NPDES (remaining in Part123).

e Part 124 of the Consolidated PermitRegulations remains applicable to allpermit programs (RCRA, State 404programs, UIC, NPDES, PSD) and ismodified only as necessary to revise thecross-references to former Parts 122 and123.DATES: Effective date: April 1, 1983,except for those portions of § § 122.2,122.21, and 122.29 that are suspended.

Comment date: To assist EPA incorrecting typographical errors,incorrect cross-references and similartechnical errors, submit comments of atechnical and nonsubstantive nature onthe final regulations on or before May31, 1983.ADDRESS: Address comments of atechnical and nonsubstantive nature to:John Chamberlin, PM-220, U.S.Environmental Protection Agency,Washington, D.C. 20460.FOR FURTHER INFORMATION CONTACT.The following individuals at the U.S.Environmental Protection Agency,Washington, D.C. 20460:

e On RCRA issues-Deborah Wolpe,Office of Solid Waste (WH-563); (202)382-4754

* On UIC issues-Thomas E. Belk;Office of Drinking Water (WH-550);(202) 426-3934;

* On NPDES issues-George Young,Permits Division (EN-336); (202) 426-4793;

* On 404 issues-Michael Privitera,Office of Federal Activities (A-104);(202)382-5053;

* On issues relating to coordinationamong all the revisions to theConsolidated Permit Regulations for thePresident's Task Force on RegulatoryRelief-John Chamberlin, Office ofPolicy Analysis (PM-220); (202)382-2762.SUPPLEMENTARY INFORMATION:

I. Background

On May 19, 1980, EPA promulgatedthe Consolidated Permit Regulations(CPR) governing five separate permitprograms (40 CFR Parts 122-124, 45 FR33290-33588). The five permit programscovered by the CPR are: the HazardousWaste Management (HWM) programunder Subtitle C of the ResourceConservation and Recovery Act(RCRA); the Underground InjectionControl (UIC) progiam under Part C ofthe Safe Drinking Water Act; theNational Pollutant DischargeElimination System (NPDES) programunder Section 402 of the Clean WaterAct; the state "dredge or fill" programunder Section 404 of the dean WaterAct; and the Prevention of SignificantDeterioration (PSD) program underregulations implementing Section 165 ofthe Clean Air Act.

Part 122 established definitions andbasic permit requirements for EPA-administered RCRA, UIC, and NPDESprograms. It also provided certainrequirements applicable to stateprograms, including state 404 programs,but only to the extent Part 123 explicitlyreferred to Part 122 requirements. Part122 spelled out in detail who must applyfor a permit; contents of the

applications; what conditions must beincorporated into permits; when permitsmay be revised, reissued, or terminated;and other requirements.

Part 123 established the requirementsfor state programs operated in lieu ofEPA, after a program has received theapproval of the Alministrator. Inaddition to the RCRA hazardous waste,UIC, and NPDES programs, Part 123governed state Section 404 programs fordischarges of dredged or fill materialinto certain waters of the United States.After receiving the approval of theAdministrator, a state may issue Section404 permits, in lieu of the United StatesArmy Corps of Engineers, basically in socalled "Phase II and 11" waters(sometimes referred to as traditionallynon-navigable waters). In addition, Part123 contained the procedures for EPAapproval, revision, and withdrawal of astate program.

Part 124 established the commonprocedures to be followed in makingpermit decisions under the RCRAhazardous waste, UIC, PSD, and NPDESprograms. It included procedures forpublic participation, for consolidatedreview and issuance of two or morepermits to the same facility or activity,and for appealing permit decisions.Mostrequirements in Part 124 are onlyapplicable where EPA is the permit-issuing authority. However, Part 123requires states to comply with some ofthe Part 124 provisions, such as thebasic public participation requirementsof permit issuance.

Technical regulations containingrequirements and criteria which apply todecisionmaking under the RCRA, UIC,NPDES, 404, and PSD programs weredeveloped separately and do not appearin Parts 122-124. These other regulationsset the substantive standards for thecontents of permits issued pursuant toParts 122-124 and provide some of thetechnical bases for determining theadequacy of state programs andindividual permit decisions.

In the CPR, the Agency intended toencourage consolidated permitting inthree ways:

(1) It adopted procedures to allowcoordinated processing of multiplepermits for a single facility. A singleshort application form was developed toprovide basic information needed by allpermit programs. Procedures wereestablished to allow joint public notice,hearings, and issuance for multiplepermits.

(2) It established uniform proceduresand permit requirements across EPApermit programs to provide moreconsistency and predictability to theregulated community. We hope that an

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applicant who had obtained one EPApermit would find it easier to obtainother EPA permits'by following similarprocedures and meeting similarrequirements.

(3) The regulations adopted aconsolidated format. They interspersedrequirements for one permit programamong requirements for other permitprograms. The regulations wereorganized both by topic (e.g. whoapplies for a permit, or standard permitconditions) and by permit program. Forthe most part, an effort was made todescribe fully the requirements on atopic to the extent that the requirementswere common across permit programs,and then subsequently to describeprogram-specific variations on the topic..

Subsequent to promulgation of theCPR, industry, states, and otherinterested parties have extensivelycriticized them. Petitioners representingmajor industrial trade associations,several of their member companies, theNatural Resources Defense Council,several states, and others filed petitionsfor judicial review of the regulations.Ultimately all petitions wereconsolidated in the U.S. Court ofAppeals for the District of Columbia(NRDC v. EPA, No. 80-1607 andconsolidated cases, filed June 2, 1980).Amendments resulting from thislitigation are discussed in Section II ofthis preamble.• In addition, many individuals,

including some of EPA's own regionalofficials charged with implementing theCRP, complained that the regulationswere excessively complex and difficultto understand and to implement.

Consequently, the President's TaskForce on Regulatory Relief designatedthe CPR as one of seven EPA regulationsfor Agency Review. Since late 1981 theAgency has ben re-assessing theseregulations with the following objectivesin mind:

- Reduce the burden the regulationsimpose in terms of monitoring,recordkeeping, testing, reporting, andgeneral paperwork.

9 Increase the flexibility with whichEPA can transfer permittingresponsibilities to the states.

* Provide the Agency and states withmore efficient ways of managingpermitting workloads.

a Settle the litigation outstandingagainst the regulations.

* Make the regulations easier to useand less complex.

In general, the Agency has not foundthe benefits of permit consolidation, inany of the three senses listed above, tobe as extensive as expected.Consolidated processing of multiplepermits has been very rare. The fact that

the various permit programs regulateinherently different activities and thusmust impose generally different sorts ofrequirements has limited commonalitiesacross permit programs. Finally, theconsolidated format of the regulationshas made them unnecessarily difficult touse.

For example, the consolidated formatfor Part 122 tended to make an applicantinterested in meeting the requirementsfor a single permit do two undesirablethings:

% Read unrelated material pertainingto other permits not of interest to him;and

* Flip back and forth between twosubparts of the regulations.Althougth Subpart A contained mostlymaterial common to all permit programs,it also contained material applicable toindividual programs. That materialproved to be distracting. In addition, thefrequent necessity to proceed back andforth between Subpart A and Subpart B,C, or D caused confusion. Part 123 (stateprogram requirements) of the .CPR wasorganized similarly-it too tended tomake an individual or state interested ina single permit program read irrelevantmaterial and flip back and forthbetween subparts.

Today's deconsolidation is intendedto correct the problems created by theconsolidated format. It will also make iteasier to implement othe'r, moresubstantive changes underconsideration to meet our objective ofproviding regulatory relief.

II. Relationship of This Promulgation toOther Changes in the CPR

Today's promulgation of"deconsolidated" regulations is only oneof several steps we have taken or willtake, to meet our regulatory reliefobjectives. The Agency has alreadycompleted two rule-makings to meetthese objectives:

(1) Amendments dealing with issuesaddressed in the settlement agreementon the UIC-related issues of the CPRwere promulgated in the FederalRegister on August 27 1981 (46 FR 43156)and on February 3, 1982 (47 FR 4992).

(2) Technical amendments dealingwith some of the issues addressed in thesettlement agreement on the RCRA-related issues of the CPR werepromulgated on April 8, 1982 (47 FR15304).

These changes are reflected in today'sdeconsolidated regulations.

In addition, the Agency has proposedother regulatory changes:

(1) Amendments dealing with nearlyall of the issues addressed in thesettlement agreement on the NPDES-

related issues of the CPR were proposedon November 18, 1982 (47 FR 52072).

(2) An amendment dealing with one ofthe issues addressed in the settlementagreement on the RCRA-related issuesin the CPR was proposed on July 23,1982 (47 FR 32038).

(3) Amendments dealing with issuesaddressed in the settlement agreementthat were common to more than onepermit program (the "common issuessettlement") and 3 issues specific to theNPDES program were proposed on June14, 1982 (47 FR 25546).

The Agency plans to propose morechanges to the deconsolidated CPR overthe next few months:

(1) Additional changes addressing theremaining issues dealt with in thesettlement agreement on the RCRA-related issues in the CPR.

(2) Substantive changes to reform theNPDES program beyond those changesresulting from litigation, including finalaction on several provisions of theNPDES regulations which are currentlysuspended.

(3) Substantive changes to encourageassumption of the 404 permit program bystates.

(41 FPA may also propose a set ofchanges to streamline the permittingprocedures common to all programsfound in Part 124.These proposed changes will bereflected in the appropriate programregulations when rulemaking iscomplete.

The Agency believes that thesechanges will respond to nearly all of thecriticisms that have been directedagainst the CPR. The regulations thatresult should be substantially lessonerous for all concerned-permitters,permittees, states, citizens, and EPA-and will only very minimally, if at all,reduce the environmental protectionthat the regulations are intended toachieve.

III. Description of Today's Amendments

In today's amendments, we are simplyrevising the consolidated format of theregulations. We are deconsolidating Part122 (permit requirements) and Part 123(state program requirements) of the CPR.We aer leaving Part 124 (commonpermitting procedures) in its currentconsolidated format. Each part of thenew regulations (122, 123, 144, 145, 233,270, 271) will pertain solely to onepermit program. The reader interested inonly one permit program will not haveto read irrelevant material pertaining toanother program. Furthermore, EPA hasattempted to order the subparts withineach part in a logical sequence so that'reading can be done sequentially.

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Today's amendments simply reiteratethe existing content of the regulations ina new format, with two narrowexceptions. First, several provisionshave been deleted because theyduplicate other provisions in theregulations or explain the consolidatedformat of the regulations and thus are nolonger necessary. Deleted provisions areidentified in the tables in the Appendix.Second, a few technical amendmentshave been made. They are describedbelow.

In addition to the organizationalchanges resulting from deconsolidating,the Agency has made minor wordingchanges to UIC permitting requirementsin selected sections of Part 144 (old Part122). These changes essentially involveamending language to clarify the scopeand enforceability of the proceduralrequirements which were previouslyoutlined in 40 CFR Part 122, but they inno way extend the scope of theregulations. For example, in severalsections the language has been changedfrom an indirect description of whatstandard a program must require anowner/operator meet, to langage thatsimply states that an owner/operator "isrequired" to meet the standard. Theseminor wording changes, in addition tomaking the existing requirements morespecific, will also enable EPA, whereappropriate, to incorporate theseregulations by reference directly intoeach federally implemented program theAgency promulgates, since therequirements will be couched inlanguage that makes them directlyenforceable against owner/operators.

Thelanguage changes do not alter thefact, however, that the requirements ofParts 144 and 145 are simply minimumrequirements for all UIC programs. Theold regulations in § 122.1(b)(1)(i) and§ 122.31(a) have always made clear thatthe regulations were to serve asminimum requirements for EPAadministered programs as well asapproved state programs. Theseregulations do not impose requirementsdirectly on owner/operators. Therequirements set forth in theseregulations will become binding onowner/operators only when they areincluded in a specific state program.Each state program will be approved (inthe case of a state administeredprogram) or promulgated (in the case ofan EPA administered program) pursuantto appropriate procedural requirements.

The Agency has also made a minortechnical change in the § 404 permittingrequirements at § 233.18, Confidentialityof Information. In the existingregulations, the denial of request forconfidentiality of the application form

and the permit appears only in theNPDES section; it should have alsoappeared in the 404-specific section inaccordance with Section 404(o) of theClean Water Act. This technical changein today's regulations corrects thatomission.

The Agency has also incorporatedinto today's regulations previouslyissued suspensions of several provisionsof the NPDES permitting requirements.The text of these suspensions, and thedate of their original issuance, areindicated at the end of those sections ofthe regulations where the suspendedportions are located.

The first two suspensions affectdefinitions found in § 122.2. On July 21,1980, the last sentence of the definitionof "waters of the United States," whichaffects the exclusion of certain wastetreatment systems from the definition ofwaters of the U.S., was suspended. OnOctober 15, 1980, the definition of "newdischarger" was suspended only as itapplies to offshore mobile drilling rigsoperating in areas other than thoseclassified as environmentally sensitive.

Several suspensions have been madewhich limit the mandatory testingrequirements of the NPDES applicationform 2C for primary industry categories.These suspensions are explained indetail in the notes following § 122.21, aswell as the revised Table I of AppendixA to Part 122. In addition, portions of thefootnotes to the table in §122.21(d)(2),which explain the requirements forsubmission of applications andaccompanying effluent data, have beensuspended. This suspension is explainedin note 5 following §122.21.

Also, paragraphs (b)(1) and (b)(2) of§ 122.29 have been suspended. Thesesections explain the difference betweena new source and a modification of anexisting source.

Final Agency action on each of thesesuspensions will be taken in subsequentAgency rulemakings. For example, onJune 14,1982, at FR 25526, et seq, EPAproposed amendments to the "newdischarger" definition as it affectsmobile drilling rigs. The suspension ofthe definition made on October 15, 1980will be withdrawn once final regulationson this proposal are published.

Finally, the Agency has also madeseveral minor corrections to RCRA Parts270 and 271.

Reorganization and renumbering ofold Parts 122 and 123 necessitatesrevising the cross-references to formerParts 122 and 123 found elsewhere in theCode of Federal Regulations. Cross-references have thus been revised in 40CFR Parts 124, 125, 146, 260, 261, 262,263, 264, and 265.

As an appendix to this preamble, EPAhas prepared a table illustrating how theAgency has reorganized the CPR. Notethat since the Agency is onlyreorganizing the CPR, we are making nochanges to any of the permit applicationforms that were published with theregulations. These forms remain in effectand we are not reprinting them here.Also note that since the Agency is notnow modifying Part 124 of theregulations, the procedures of that Partallowing consolidated processing ofapplications for multiple permits remainin effect. As indicated previously, EPAis considering separate rulemaking torevise Part 124.

IV. Effective Date and FinalPromulgation

This promulgation does not changethe substance of the regulations at all; it'merely changes their location in theCode of Federal Regulations.Accordingly, we are proceeding directlyto promulgation without previouslyhaving proposed the reguation. EPA'further believes that this is not the typeof regulation that Congress had in mindwhen it provided a delay between thepromulgation and the effective date ofrevisions to regulations. Making thechanged format effective immediatelywill benefit those who use theregulation. Consequently, EPA believesit has good cause to make these ruleseffective immediately.

V. Executive Order 12291

This regulation is not major because itwill not result in an annual effect on theeconomy of $100 million or more, norwill it result in an increase in costs orprices to industry. There will be noadverse impact on the ability of theU.S.-based enterprises to compete withforeign-based enterprises in domestic orexport markets. The regulation merelychanges the location of the permit andstate authorization requirements in theCode of Federal Regulations.

EPA submitted this rule to the Officeof Management and Budget for reviewas required by Executive Order 12291.Any comments from OMB to EPA andany EPA response to those commentsare available through: John Chamberlin,PM-220, U.S. Environmental ProtectionAgency, Washington, D.C.

VI. Regulatory Flexibility Act

Today's promulgation does not changeany substantive requirements of thepermitting regulations.

Accordingly, I hereby certify that thisregulation will not have a significanteconomic impact on a substantialnumber of small entities.

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Federal Register / Vol. 48, No. 64 / Friday, April* 1, 1983 / Rules and Regulations

List of Subjects

40 CFR Part 122

Administrative practice andprocedure, Reporting and recordkeepingrequirements, Water pollution control,Confidential business information.

40 CFR Part 123

Indians-lands, Reporting andrecordkeeping requirements, Waterpollution control, Intergovernmentalrelations, Penalties, Confidentialbusiness information.

40 CFR Part 124

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

40 CFR Part 125

Water pollution control, Wastetreatment and disposal.

40 CFR Part 144Administrative practice and

procedure, Reporting and recordkeepingrequirements, Confidential businessinformation, Water supply.

40 CFR Part 145

Indians-lands, Reporting andrecordkeeping requirements,Intergovernmental relations, Penalties,Confidential business information,Water supply.

40 CFR Part 146

Hazardous materials, Reporting andrecordkeeping requirements, Wastetreatment and disposal, Water supply.

40 CFR Part 233

Administrative practice andprocedure, Reporting and recordkeepingrequirements, Confidential businessinformation, Water supply, Indians-lands, Intergovernmental relations,Penalties, Confidential businessinformation.

40 CFR Part 260

Administrative practice andprocedure, Confidential businessinformation, Hazardous materials,Waste treatment and disposal.

40 CFR Part 261

Hazardous materials, Wastetreatment and disposal, Recycling.

40 CFR Part 262

Hazardous materials, Imports,Labeling, Packaging and containers,Reporting and recordkeepingrequirements, Waste treatment anddisposal.

40 CFR Part 263

Hazardous materials transportation,Waste treatment and disposal.

40 CFR Part 264

Hazardous materials. Packaging andcontainers, Reporting and recordkeepingrequirements, Security measures, Suretybonds, Waste treatment and disposal.

40 CFR Part 265

Hazardous materials, Packaging andcontainers, Reporting and recordkeepingrequirements, Security measures, Suretybonds, Waste treatment and disposal,Water supply.

40 CFR Part 270

Administrative practice andprocedure, Reporting and recordkeepingrequirements, Hazardous materials,Waste treatments and disposal, Waterpollution control, Water supply,Confidential business information.

40 CFR Part 271

Hazardous materials, Reporting andrecordkeeping requirements, Wastetreatment and disposal, Water pollutioncontrol, Water supply,Intergovernmental relations, Penalties,Confidential business information.

Dated: March 16, 1983.John W. Hernandez,Acting Administrator.

Authority: Clean Water Act, Safe DrinkingWater Act, Clean Air Act, ResourceConservation and Recovery Act: 42 U.S.C.6905, 6912, 6925, 6927, 6974.

Appendix

This appendix describes thereorganization of former Parts 122 and123. Four tables follow--one for eachprogram: NPDES, RCRA, UIC, 404. Eachtable lists all provisions of former Parts122 and 123 applicable to the particularprogram and the new location at whichthe provisions are now presented.

NPDES Program

Below is a list of the NPDES-relatedsections in former Parts 122 and 123 andtheir corresponding sections in newParts 122 and 123.

Name and old New

What are the consolidated permitregulations?

§ 122.1 ............... . ............(a) ....................................................(b) .....................................................(c) ......................................................(d) ......................................................(e) ....... ... . ..............(1) .................. ....................................

Purpose and scope of Part 122

§ 122.2 ......................................... ; ...............(a) ....................................................

122.1(a).122.1(c).122.1(d).122.1(g).122.1(e).122.1().

Removed.

Name and old New

(b) .......... ..............

Definitions§ 122.3 .......................................................

Application for a permit§ 122.4 ..........................................................

(a) ......................................................(b) ......................................................(C) ...............................(d) ......................................................(a) ......................................................

Continuation of expiring permits§ 122.5 ............................................... _ -.....

Signatories to permit applications andreports

§ 122 6 ....................

Conditions applicable to all permits

§ 122,7 .............................................................

Establishing permit conditions§122.8 -. .... ..................................................

Duration of permits§ 122.9 .......................................................

(a) ................. . ............(b) ........... . ........... ....... .

(c) .....................................................(d) .....................................................(a) .....................................................

Schedules of compliance§ 122.10 ....................................................

Requirements for recording and reporting-of monitoring results

§ 122.11 ...........................................................

Considerations under Federal law§122.12 ..... ..........................................

Effect of a permit

§ 122.13 .......................................................

Transfer of permits .

§ 122.14 ...........................................................Modification or revocation and

rmissuance of permits§ 122.15 ..................................

(a)(5)(i) .............................................(a)(5) (ii)-( m .....................................

(a)(6) ...............................................Termination of permits

§ 122.16 ...........................................................Minor modifications of permits

§122.17 .......................................................(9) .............................................

Noncompliance and program reporting bythe Director

§ 122.18 .................(b) ...... ............ ........(c) ....................(d) ........... ... .........(a) ....................

Confidentiality of information§ 122.19 .............................

Purpose and scope of Subpart D

§ 122.51 ...........................................................

(a) ...........................(b) ................................................ .(c)(1) ................................................(c)(2) .................................................

Prohibitions

§ 122.52 ...........................................................

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

(a) ......................................................(b) .....................................................(c) ......................................................(d) ...................................................(a) ......................................................( ) .................................................(g) . . .................(h) ................................................') ...............................

(k) .... . . ..............

Removed.

122.2.

122.21 (a).122.21(b).122.21 (e).122.21(9.122.21(o).

122.6..

122.22-

122.41.(All sections are

sameparagraphs.)

122.43.

122.46(aRemoved.Removed.122.46(b).122.46(c).

122.47

122.48.

122.47.

122.5

122.61

122.62.122.62(a)(5).122.62(a) (6)-

(15).Removed.

122.64.

122.63.(a).

123.45.Removed.123.45(b).Removed.123.45(c)

122.7.

Removed,122.1(g).122.1(b).122.3.

122.4.

122.21(a).122.21(c).122.21(d).122.21(g).122.21(h).122.21(i).122.21().122.21(k).122.21(l).122.21(m).122.21(n).

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Name and old New

Concentrated animal feeding operations§ 122.54 ..........................................................

Concentrated aquatic animal productionfacilities

§ 122.55 ..........................................................

Aquaculture projects

§ 122.56 ..........................................................Separate storm sewers

§ 122.57 ..........................................................

Silvicultural activities

§ 122.58 ..........................................................

General permits

§ 122.59 ..........................................................Additional conditions applicable to all

NPDES permits§ 122.60 .........................................................

(a) ....................................................(b) . .................(c) .....................................................(d) .....................................................(a) ......................................................() ......................................................(g) .....................................................(h) ......................................................

Additional conditions applicable tospecified categories of NPDES permits

§ 122.61 ...........................................................

Establishing NPDES permit conditions§ 122.62 ..........................................................

Calculating NPDES permit conditions

§ 122.63 .......................................... ...........

Duration of certain NPDES permits

§122.64 .............................(a) ......................................................(b) ......................................................(c) ......................................................

Disposal of pollutants into wells, intopublicly Owned treatment works or byland application

§ 122.65 ............................ . ........

New sources and new dischargers

§ 122.66 ...........................................................Purpose and scope

§ 123.1 ..............................(8) ......................................................(b) ......................................................(c) ......................................................(d) ......................................................(a) ......................................................() .......................................................(g) ......................................................(h) ......................................................(i) .......................................................

0) .......................................................(k) .....................................................

Definitions§ 123.2 .............................................................

Elements of a program submission

I 123.3 ............................................................

Program description§ 123.4 .............................................................

Attorney General's statement

§ 123.5 ................................................. : ...........Memorandum of agreement with regional

administrator

§ 123.6 .............................................................(a) ......................................................(g) ......................................................

Requirements for permitting

§ 123.7 .............................................................(a)(1) .................................................(2) ......................................................(3) ......................................................(4) ......................................................(5) ......................................................(6) ...........................(7) ......................................................(8) ......................................................(9) ...........................(10) ....................................................(11) ..............................................(12) .................... . .... ......................(13) ....................................................

122.23.

122.24.

122.25.

122.26.

122.27.

122.28.

122.41.122.41(a).122.41 (c).122.41(j)(4), (5).122.41 (k).122.41(I)(3).122.41 (l)(6).122.41 (m).122.41 (n).

122.42.

122.44.

122.45.

122.46(d).122.46(e).122.46(f).

122.50.

122.29.

123.1 (a), (c).Removed.Removed.Removed.123. 1(a).123.1(c).123.1(d).123.1().Removed.123.1(h).123.1(i).

123.2.

123.21.

123.22.

123.23.

123.24(d).123.24(e).

123.25.(a)(4).(5).(12).(14).(17).(18).(19).(2).(21).(22).(23).§ 123.45.123.25(a)(3).

Name and old New

(14) ....................................................(15) ....................................................(16) ....................................................(17) ....................................................(18) ....................................................(19) ....................................................(20) ....................................................(21) ....................................................(b) ......................................................(c) ......................................................(d)(1) .................................................(2) ......................................................(3) ......................................................(4) ......................................................(5) ......................................................(6) .....................................................(7) ......................................................(8) ...............................................(9) ......................................................(10) ....................................................(11) ....................................................(12) ..........................(13) ....................................................(14) ....................................................(15) ....................................................(16) ....................................................(17) ....................................................( )....................................................( 9)....................................................(e)......................................................

Requirements for compliance evaluationprograms

§ 123.8 ............... ...............Requirements for enforcement authority

§ 123.9 ......................................................(a)(3)(iiil(A) ................................(a)(3)(iii)(8) .................................(a)(3)(iii)(C) .......................................

Sharing of information

§ 123.10 .........................................................

Coordination with other programs

§ 123.11 ..........................................................

Approval process

§ 123.12 ..........................................................

Procedures for. revision of Stateprograms

§ 123.13 ..........................................................(g) .....................................................

Criteria for withdrawal of State programs

§ 123,14 ..........................................................

Procedures for withdrawal of Stateprograms

§ 123.15 ..........................................................

Purpose and scope§ 123.71 ..........................................................

(a) ......................................................(b) .....................................................(c) ..........................(d) .....................................................

Control of disposal of pollutants intowells

§ 123.72 .........................................................Receipt and use of Federal information

§ 123.73 ..........................................................

Transmission of information to EPA

§ 123.74 ..........................................................

EPA review of and objections to Statepermits

§ 123.75 ..........................................................

Prohibitions

§ 123.76 ..........................................................

Approval process

§ 123.77 ..........................................................

(24).(25).(26).(27).(28).(29).(30).(31).Removed.Removed.(a)(1).(4).(6).(7).(8).(9).(10).(11).(12).(13).(15).(16).(17).(20).(32).(33).(34).(36).(37).(b).

123.26.

123.27.(a)(3)(i).(a)(3)(ii).(a)(3)(iii).

123.41.

123.3.

123.61.

123.62(e).

123.63.

123.64.

123.1(a).123.1(b).123.1(g).123.1(d).

123.28.

123.42.

123.43.

123.44.

123.29.

123.61.

UIC Program

Below is a list of the UIC relatedsections in Parts 122 and 123 and theircorresponding sections in Parts 144 and145: Part 122=144.

Name and old New

What are the consolidated regulations

§ 122.1 ...........................................................

Purpose and scope of part 122

§ 122.2 ...........................................................

Definitions

§ 122.3 ...........................................................

Application for a permit

§ 122.4 ...........................................................§ 122.4(a) ......................................................§ 122.4(b) ......................................................§ 122.4(c) ......................................................§ 122.4(d) ......................................................§ 122.4(e) ......................................................

Continuation of expiring perimits

§ 122,5 ...........................................................Signatories to permit applications and

reports

§ 122.6 ...........................................................

Conditions applicable to all permits§ 122.7 ...........................................................

Establishing permit conditions

§ 122.8 ...........................................................§ 122.8(a) ......................................................§ 122.8(b)(1)-(3) .................... ...................§ 122.8(c) ......................................................

Duration of permits

§ 122.9 ..........................................................§ 122.9(c) .....................................................§ 122.9(d) ............................§ 122.9(e) .....................................................

Schedule of compliance

§ 122.10 ............................§ 122.10(a)(1)(ii).: ........................................§ 122.10(a)(3) ...............................................§ 122.10(a)(4) ................................................

Requirements for recording andreporting of monitonng results

§ 122.11 ........................................................

Considerations under Federal law

§ 122.12 ........................................................

Effects of a permit§ 122.13 ........................................................

Transfer of permits§ 122.14 .........................................................

Modification of revocation andreissuance of permits

§ 122.15 ........................................................Termination of permits

§ 122.16 .........................................................

Minor modification of permits

§ 122.17 ........................................................§ 122.17()(1) .................................................§ 122,17(f)(2)) ..............................................§ 122.17()(3)) ..............................................

Noncompliance and program reportingby the director

§ 122.18 .........................................................§ 122.18(c) ...................................................§ 122.18(c)(4) ................................................§ 122.18(e) .. .................. .........................

Confidentiality of information

§ 122.19 .........................................................

Purpose and scope of subpart C(rewritten)

§ 122.31 .............................Classification of wells

§ 122.32 ....... . .............

Prohibition of unauthorized injection

§ 122.33 ........................................................Prohibition of movement of fluid into

underground sources of drinking water

§ 122.34 .......................... .......................

Identification of underground sources ofdrinking water and exempted aquifers

§ 122.35 ........................................................Elimination of certain class IV wells

§ 122.36 ............................Authorization of underground injection

by rule§ 122.37 ........................................................

14150

§ 144.1.

§144.1.

§ 144.3.

§ 144.31.Removed.§ 144.31(b).§ 144.31(d).§ 144.31(e).§ 144.31().

§ 144.37.

§ 144.32.

§ 144.51(a)-(1).

§ 144.52(a).§ 144.52(b)(1)--(3).§ 144.52(c).

§ 144.36.§ 144.36(a).§ 144.36(b).§ 144.36(c).

§ 144.53.§ 144.53(a)(1)(i).§ 144.53(a)(2).§ 144.53(a)(3).

§ 144.54,

§ 144.4.

§ 144.35.

§ 144.38,

§ 144.39.

§ 144.40.

§ 144.41.§ 144.41(e).§ 144.41(Q.§ 144.41(9).

§ 144.8.§ 144.8(b).§ 144.8(b)(2).§ 144.8(c).

§ 144.5.

§ 144.1.

§ 144.6.

§ 144.11.

§ 144.12.

§ 144.7.

§ 144.13.



Federal Register' / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations

Name and old New

§ 122.37(a)(1) .. ..................................5 122.37(a)(2) ................................................§ 122.37(a)(3) ........................5 122.37(a)(4) ................................................o 122.37(b) ............ ..................................§ 122.37(c) ............ . ..............5 122.37(d) ...................................................Application for a permit; authorization

by permit -§ 122.38 .........................................................§ 122.38(a) ...................................................§ 122.38(b) ...................................................§ 122.38(c) ...................................................

Area permits§ 122.39 ........................................................

Emergency permits5 122.40 ........................................................

Additiomal conditions applicable to allUIC permits

5 122.41 ........................................................§ 122.41(a) ..................................................5 122.41(b) ...................................................§ 122.41(c) ...................................................§ 122 .41(d) ...................................................5 122.41(e) ...................................................

Establishing UIC permit conditions

§ 122.42 ............ ......................................§ 122.42(a) ...................................................§ 122.42(b) ...................................................§ 122.42(c) ...................................................§ 122.42(d) ...................................................§ 122.42(e) ...................................................§ 122.42(tQ ...................................................§ 122.42(g) ...................................................§ 122.42(h) ..................................................§122.42(i) .........................

Waiver of requirements by director

§ 122.43 ........................................................

Corrective action

§ 122.4. ........................................................Reguirements for wells injecting

hazardous waste.§ 122.45 ........................................................

Promulgation of class II programs forIndian lands

§ 122.46 ........................................................

Purpose and scope§ 123.1 ........................... : ..............................§ 123.1(a) .....................................................§ 123.1(b) ......................................................§ 123.1(c) .................................................§ 123.1(d) ......................................................§ 123.1(e) ......................................................§ 123.1() .......................................................§ 123.1(g) ............. . . .............§ 123.1(h) ......................................................§ 123.1(i) ........................................................§ 123.10) ........................................................§ 123.1(k) .................................................

Definitions5 123.2 ...........................................................

Elements of a program submission.

5 123.3 ..........................................................Program description

§ 123.4 ...........................................................5123.4(g) ......................................................


5123.5 ...........................................................Memorandum of agreement with the

regional administrator

§ 123.6 ...........................................................Requirements for permitting

§ 123.7 ..........................................................§ 123.7(a)(1)-(21) ........................................

§ 144.31(a).§ 144.31(c).§ 144.31(g).

§ 144.33.

§ 144.34.

* 144.51(a).§ 144.510j)(2)(ii).§ 144.51(m).§ 144.51(1)(6).§ 144.51(n).

§ 144.52(a)(1).§ 144.52(a)(2).§ 144.52(a)(3).§ 144.52(a)(4).5 144.52(a)(5).§ 144.52(a)(6).§ 144.52(a)(7).§ 144.52(a)(8).§ 144.52(b)(1).

§ 144.16.

§ 144.55.

§ 144.14.

§ 144.2.

§ 145.1(a).Deleted.§ 145.1(b).§ 145.1(c).§ 145.1(d).§ 145.31(d).§ 145.21(e).§ 145.1(9.Deleted.§ 145.21(Q).§ 145.1(g).

§ 145.2.

§ 145.21.

§ 145.22.§ 145.22().

§ 145.23.

§ 145.24.

§ 145.11.§ 145.1 (a)(1)-

(21).

Name and old New

§ 123.7(c)(1)-(12) ......................................... § 145.11(a)(22)-(33).

Requirements for compliance evaluationprograms

§ 123.8 ........................................................... § 145.12.

Requirements for enforcement authority

5123.9 .......................................................... § 145.13.§ 423.9(a)(3)(h)(A) ........................................ § 145.13(a)(3i).§ 123.9(a)(3)(ii)(B) ........................................ § 145.13(a)(3)(i).

Sharng of information

§ 123.10 ........................................... ............ § 145.14.


5123.11 ........................................................ Removed.

Approval process

§ 123.12 ........................................................ § 145.31.

Procedure for revision of Stateprograms

§ 123.13 ........................................................ 145.32.§ 123.13(f) ................................................... 145.32(e).

Criteria for withdrawal of Stateprograms

§ 123.14 ........................................................ § 145.33.

Procedures for withdrawal of Stateprograms .

§ 123.15 ...................... § 145.34.§ 123.15(a) ................................................... § 145.34(a).

Purpose and scope of subpart C

§ 123.51 ........................................................ § 145.1.§ 123.51(a) ................................................... Deleted.§ 123.51(b) ................................................... § 145.21(a).§ 123.51(c)., ................................................ § 145.21(c).§ 123.51(d) ................................................... § 145.21(d).§ 123.51(e) ............ § 145.21(e),

Requirement to obtain a permit§ 123.52 .. ............................................. § 145.11(a)(27).

Progress reports§ 123.53 ........................................................ § 145.21(b).

Approval process5123.54 ......................................................... §145.31.I 123.54(a)-(c) .................. § 145.31(a)-(c).§ 123.54(d) .................................................... § 145.31(e).

Procedures for withdrawal of State UICprograms

§ 123.55 ........................................................ § 145.34.§ 123.55(a) ................................................... § 145.34(b)(1).§ 123.55(b) ..................... § 145.34(b)(2).§ 123.55(c) ................................................... § 145.34(b)(3).

404 Program

Below is a list of the 404 relatedsections in Parts 122 and 123 and theircorresponding sections in Part 233.

Old name

What are the consolidated permit regu-lations? (Purpose and scope of Part233).

122.1 ..............................................................122.1(a) .........................................................122.1(b)(1) (i)-(iii) .........................................I122.1(b) (2)-(4) .............................................122.1(c) (1)-(2) ..........................122.1(d) .........................................................122.1(e) ........................................................122.1(0 ..........................................................

Purpose and scope

233.1.233.1 (a).233.1(b) (1)-(4).Removed.233.1(c) (1)-(2).Removed.233.1 (d).233.1 (e).

122.2 .............................................................. 233.2.122.2(a) ......................................................... 233.2.

Name and old New

122.2(b) ............................

Definitions122.3 ..............................................................

Application for a permit

122.4 ............. ..........122.4(a) ........................................................122.4(b) ........................................................122.4(c) ..................................................122.4(d) ..................................................122.4(e) ........................................................

Continuation of expiring permits122.5 .............................................................122.5 (aH c) ................................................122.5(d) . ... . . .... .......

Signatories to permit application andreports

122.6 ..................... .................................122.6 (a)-(d) ..................

Conditions appliciable to all permits

122.7 .............................................................122.7 (a)-(I) ..................................................

Establishing permit conditions122.8 .............. ........................................122.8 (a)-(b) ................................................122.8(c) ........................................................

Duration of permits122.9 ............................................................122.9(a) ........................................................122.9 (b)-(c) ................................................122.9 (d)-(e) ................................................

Schedules of compliance122.10 ...........................................................122.10(a) ......................................................122.10(a)(1) .................................................122.10(a)(1) (i) and (ii) ...............................122.10(a)(2) ........................122.10(a)(3) .............................................122.10(a)(4) ...................122.10(b) .............. ..................................

Requirements for recording andreporting of monitoring results

122.11 ...........................................................122.11 (a)-(c) ............................ " ..................

Consideration under Fedbral law

122.12 .........................................................

Effect of a permit122.13 ...........................................................122.13 (a)-(b) ....................122.13(c) ................. ..............

Transfer of permits

122.14 ...................... ..............122.14(a) ......................................................122.14(b) ......................................................

Modification or revocation andreissuance of permits

122.15 ...........................................................122.15(a)(1)-(2) ...........................................122.15(a)(3)(i)-(ii) ........................................122.15(a)(3)(iii) .............................................122.15(a)(4) .................................................122.15(a)(5) .................................................122.15(a)(6) .................................................122.15(b) ......................................................122.15(c) ......................................................

Termination of permits

122.16 ... ..................... .........................122.16(a)(1) .................................................122.16(a)(2) .................................................122.16(a)(3) .................................................122.16(a)(4) .................................................122.16(b) ......................................................

Minor modification of permits122.17 ...........................................................122.17(a)-(d) ................................................122.17(e)-(g) .................................................122.17(h) ......................................................

14151

Removed.

233.3.

233.4.233.4(b).233.4(c).233.4(d).233.4(e).233.4(0.

233.5.Removed.233.5.

233.6.233.6 (a)-(d).

233.7.233.7 (a)-(I).

233.8.233.8 (a)-(b).233.8(d).

233.9.233.9(a).Removed.233.9 (b)-(c).

233.10.233.10(a).233.10(a)(1).Removed.Removed.233.10(a)(2).233.10(a)(3).Removed.

233.11.233.11 (a)-(c).

Removed.

233.12.233.12 (a)-(b).Removed.

233.13.233.13.Removed.

233.14.233.14(a)(l1)-(2).233.14(a)(3)(i)-(ii).Removed.233.14(a)(4).Removed.233.14(a)(5).233.14(b).Removed.

233.15.233.15(a).233.15(b).233.15(c).233.15(d).Removed.

233.16.233.16(a)-(d).Removed.233.16(e).




Old name New

Noncompliance and program reportingby the director

122.18 . ........................... ...........................122.18( ........................................................122.18(b) ...................................122.18(c) ......................................................122.18(d) ............. . . . ............122.18(e) . .... . . ..............

Confidentiaity of information

122.19 ............................................................122.19(a) .......................................................122.19(b)(1) ........ . .........122.19(b)(2)-(3) ...........................................122.19(b)(4) . ... . ..........................................

122.19(c)-(d) ...............................................

Purpose and scope123 1 ....................................................... .123.1(a) .......................... .............123.1(b) ......................... ..............123.1(c) .......................................................123.1(d) .......................................................123.1(e) ......................................................123.1(f) ....................................................123.1(g) ..................................................123.1(h) ........................ . .............-123.1 (i) ............ ......... .....................123.10") . ........ . . ...........123.1(k) . ... . .............

Definitions123.2 . ......... ..................................


123.3 ....................... ........................123.3(a)-(d) .......................

Program description

123.4: ......... ...................................123.4[e)-(e) ............................123.4(-(g) ... ... . ..............123.4(h)(1)-(8) . ... . . .............


123.5 ............................. . . ............123.5(a)-(b) ..................................................123.5(9) .......................................................123.5(d) ............................................. ..

Memorandum of agreement with theRegional Administrator

123.6 ..............................................................123.6(a) .....................................................123.6(b)(1) ................................................123.6(b)(2)-(3) ................ .............123.6(b)(4) ................................................123.6(b)(5) ......... .........................................123.6(b)(6) ............... .....................................

123.6(c) . ... . ..............123.6(d) ..123.6(e) ................... ............123.6(9 .......123.6(g) ......................................


123.7 . ............. ..............123.7(a) .................... ..... ........123.7(b)-(d) .....-... ..... ...............123.7(e) .... ......... ........... ...... ........

Requirements for enforcementevaluation programs

123.8 . ....... . ...............123.8(a)-(d) . ....................................12 3 .8 (e ) ........................................................Requirements for enforcement authority123.9 .............. ...... ........................................123.9(a)(3) ....................................................123.9(a)(3)(i)-( ) ................................

123.9(a)(3)(w) .. ......................................


123.10 .................................

Coordination with other programs123.11 . .................

Approval process

123.12 ...........................................................Procedures for revision of State

programs

233.17.Removed.233.17(a).Removed.233.17(b).233.17(c).

233.18.Removed.233.18(a)(1).Removed.233. 1(a)(3).Removed.

233.20.233.20(a).Removed.233.20(b).233.20(c).233.20(d).233.20(e).233.20(f).233.20(g).233.20(h).233.20(i).233.200).

Removed.

233.21.233.21(a)-(d).

233.22.233.22(a)-(e).Removed.233.22(fHm).

233.23.233.23(a)-(b).Removed.233.23(c).

233.24.233.24(a).Removed.233.24(b)(1)-(2).233.24(b)(3.)Removed.233.24(b)(4.)233.24(c).Removed.Removed.233.24(d).233.24(e).

233.21.233.26(a).Removed.233.26(b).

233.27.233.27(a)-(d).Removed.

233.28.233.28(a)(4).Removed.233.28(a)(4(i).

233.29.

233.30.

233.31.

123.13 ........................................................... 233.32.

Old name New

123.13(a)-(d) ................................................ 233.32(a)-(d.)123.13(e)-(g) ................................................ Removed.123.13(h) ....................... .. 233.32(e).

Crteria for withdrawal of Stateprograms

123.14 ........................................................- 233.33.


123.15 ....................... 233.34.

Purpose and scope

123.91 ...........................................................123.91(a) ................................................... Removed.123.91(b) ...................................................... Removed.123.91(c) ....................................................... 233.20(i).123.91(d) ....................................................... 233.37(d).

Activities not requiring pernits123.92 ..................................................... 233.35.

Prohibitions123.93 ............................................................ 233.36.

Applications for a permit123.94 ............................................................ 233.4.123.94(a) ............... 233.4(a).123.94(b) ...................................................... 233.4(b).123.94(c) .................................................... 233.4(e).

General permits123.95 .................................................... 233.37.

Emergency permits123.96 ..................... : ..................................... 233.38,

Permit conditions

123.97 ...................................................... 233.7.123.97(a)-(d) ............. ..... ...... .. 233.7(m)-(p).


123.98 ........................................................... .233.8.'123.98(a)-(g) ............................................... 233.8(c)(1)-(7).

Memorandum of agreement with theSecretary

123.99 ........................................................... 233.25.Transmission of information to EPA and

other Federal agencies123.100 ........................................................ 233.39.

EPA review of and objections to Statepermits

123.101 ................. 233.40.

Coordination requirements123.102 .......................... . . . 233.41.

Enforcgment authority123.103 . .... ... .................. 233.28(a)(3)

Approval process123.104 ........................................................ 233.31

Index of Changes to Parts 122 and 123

Below is a list of the RCRA relatedsections in Parts 122 and 123, and theircorresponding sections in Parts 270 and271:

Part 122= Part 270

Name and old New

What are the consolidated permitreguttions? -

§122.1 .......................................... 270.1.( a)(1) ................................. ................ W t 1.

(a)(ii)-(e) .......................................... I Removed.Purpose and scope of Part 122

§ 122.2 ................................. ............ 270.1.(b) ...................................................... Rem oved.

Definitions§ 122.3 .............................................................. 270.2.

Name and old

Application for a pennit

§ 122.4 ..............................................................(a)-(c) ................................................(d) .....................................................(d)(1)-(d)(4) .....................(d')(5) .................................................(d)((d)() .. ..................

(a) ................................................Continuation" of pinrn permits

§ 122.5 ............................

Signatories to permit applications andreports

§ 122.6 ..............................................................Conditions applicable to all permits

§ 122.7 ..............................................................(1)(7)-[1)(8) ......................................


§ 122.8 ..............................................................(a)-(b) ...............................................(b)(2)-(3) .................... ...........(c) ....................... ........

Duration of permits§ 122.9 . .. .... ............... ..

(b) ..................... ..........(d ) ......................................................(e) ....................

Schedules of compliance§122.10 ...................

(a)(3)-(4). .

Requiremerts for recording and reportingof moritoring results

§122.11 ..................... . . . ............

Consideration under Federal law

§ 122.12 ...................

Effect of a permit§122.13 ...........................................

Transfer of permits

§ 122.14 ..........................................

Modification or revocation andreissuance of permits

§122.15 ............................................(a)(7) .....................................

Teryinaion of permits

§122.16 ........ .. ........................

Minor modifications of permits

§122.17 .........................................................(e)1)-( ) ....................................

Noncompliance and program reporting bythe Director

8122.18 . ...........................(c) ......................................

(c(3).................... .......( e ) -. ..- . .-- -- ......... .. ..... ..

Confidentiality of information§ 122.19 .............................

(b)(1) ................................................References

§ 122.20 ..........................................................

Purpose and scope of Subpart 8

§ 122.2 1 ...........................................................(a) ...... . .............

(b)(8) .... ......(c)-(d) ...............................................(d)(2)(v) ............................................(d)(2)(vi)-(vif) ..................................Application for a permit

§ 122.22 ...........................................................

(a)-(d) ..............................................Interim status

§ 122.23 ...........................................................

Qualifying for interim status

(a) ....................... .........

Coverage(b) ......................................................

14152

New

270.10.(aH).(d).

270.13(a)-(d).270.13(f).270. 13(k)-(m).270.10(i).

270.51.

270.11.

270.30.(1)(10)-(1(11).

270.32.(a).(c)-(d).(e).

270.50.(a).(b).(c).

270.33.(a)(2)-(3).

270.31.

270.3.

270.4.

270.40.

270.41.

(a)(5).

270.43.

270.42.(e)-(n).

270.5.(b). '(b)(2).(c).

270.12.(b).

270.6.

270.1.Removed.(a)(3).(a)(2).(b)-(c).Removed.(c)(2)(v)-(vi).

270.10.

(e)-(h).

270.70-270.73.

270.70

270.71 (a).




Name and old New

Ctanges during Interim status(c) ......................................................

Interim status standarda(d) ...........................Grounds for termination(e) ............. .............

Contents of Part A of the RCRA permitapplication

§ 122.24 ...........................................................(a) .....................................................(b) .....................................................(c)-(g) ...............................................

Contents of Part B of the RCRA permitapplication

§ 122.25 ...........................................................(a) .....................................................(a) .....................................................(b)(1) ................................................(i)-(vi) ...............................................(b)(2) ................................................(l)-(v) .......................(b)(3) ................................................(r)-Qx) .......................(b)(4) ................................................()-0 .................................. .(b)(5) ................................................(i)- v) ...............................................(b)(6) ................................................(i)-(viii) .......................(b)(7) ................................................( -(x) ................................................(c) ......................................................

Permits by rule§122.26 ............................................................

Short term permits§ 122.27 ............................................................

Emergency permits(a) ......................................................

Hazardous waste incinerator permits(b) ......................................................

Permits for land treatmentdemonstrations

(c) .....................................................Additional conditions applicable to all

RCRA permits§ 122.28 ...........................................................

(b) .....................................................(c) .....................................................(d) .....................................................(e)(1)-(3) ..........................................

Establishing RCRA permit conditions§122.29 ....... ...............

Interim permits for UIC wells

270.72.

270.71(b).

270.73.

270.13.(b).(0).(g)-A).

270.14-270.29.270.14.(b)-270.15.(a)-(d).270.16.(a)-(f).270.17.(a)-(i).270.18.(a)-(i).270.19.(a)-(d).270.20.(a)-(h).270.21.(a)-(i).270.14(c).

270.60.

270.61-270.63.

270.61.

270.62.

270.63.

270.30.(j)(2).(1)(2).(1)(6).

270.32()-(b).

§ 122.30 ........................................................... 270.64.

Part 123=Part 271

Name and old New

Subpart A-General ProgramReqirements

Retitled: Requirements for final authoriza-tion.

Purpose and scope

§ 123.1 .....................................................(a)(2)-(4) ..........................................(0 ) .....................................................(c)-(k) ...............................................Note .................................................

Definitions§123.2 .............................................................


§123.3 ..............................................................Program description

§123.4 ..............................................................f)......................................................

(0(1)--(3) ... ........................................

(f)(4) ..................................................(g) and (h) ........................................

§271.1.Removed.Removed.(b)-(i).Removed.

§ 271.2.

§271.5.

§ 271.6.Removed.(f)1(h).Removed.Removed.

Name and old New

I Attorney General's statement§123.5 .............................................................

(c) and (d) .......................................

Memorandum of agreement

§ 123.6 .............................................................(b)(1) ................................................(b)(2) ................................................(b)(3) .................................................(b)(4) .................................................(b)(5) .................................................(b)(6) .................................................(d) ......................................................(d)(1) .................................................(d)(2) .................................................(d)(3) .................................................(d)(4) .................................................(d)(5) .................................................(e)-(g) ...............................................


§ 123.7 ..............................................................(a) ......................................................(a)(1) .................................................(a)(2) .................................................(a)(3) ................................................(a)(4) ................................................(a)(5) ................................................(a)(6) ................................................(a)(7) ................................................(a)(8) ................................................(a)(9) ................................................(a)(10) ..............................................(a)(1 1) ..............................................(a)(12) ..............................................(a)(13) ..............................................(a)(14)-(21) .......... . ....................(b) .....................................................(b)(1) .... ........................... .............(b)(2) ................................(b)(3) .................................(b)(4)'. ..............................................(b)(5) .................................................(b)(6) .................................................(b)(7) .................................................(b)(8) .................................................(b)(9) .................................................

Requirements for sompliance evaluationprogram

§123,8 ..............................................................(e) ...............................................

Requirements for enforcement authority

§ 123.9 ..............................................................(a)(3)(i) ..............................................(a)(3)(i)(A) and (B) ...........................(a)(3)(ii) .............................................(a)(3)(iih) ............................................

Sharing of Information

§ 123.10 ..............................


§123.11 ........................................ : ...................

Approval process

§ 123.12 ............................................................Procedures for revision of State

programs

§ 123.13 ....................................................., (0-(h) ........................

Criteria for withdrawal of State programs

§ 271.7.Removed.

§271.8.(b)(6).(b)(7).(b)(2).(b)(3).(b)(8).(b)(1 1).Removed.(b)(4).(b)(5).(b)(9).(b)(1).(b)(10).Removed.

§271.14.Removed,(d).(e).(I).(k).(p).

(b).(m).(n).(o).(c).(0(t)-(aa).Removed.(a).(d).(g).(h).(q).(r).(i).(k).(s).

§271.15.Removed.

§ 271.16.Removed.(a)(3)(i) and (ii).Removed.Removed.

§271.17.

§ 271.18.

Removed.

§271.21.1 Removed.

§ 123.14 ............................................................1 §271.22.Retitled: Procedures for withdrawing approval of State pro-

grams.


§123.15 .............. ....................... .... §271.23.Retitled: Procedures for withdrawing approval of State pro.

grams.

Subpart B-Additional Requirements for State HazardousWaste Programs

Sections 123.31-123.39 are now included in Subpart A, as

follows.

Retitled: Avatlability of final authorization

§ 123.31 ............................................................ §271.3.(a) ..................................................... Removed.(b)-(e) ............................................... (a)-(d).

Name and old New

Consistency§ 123.32 ...........................................................Requirements for identification and listing

of hazardous wastes

§ 123.33...........................................................Requirements for generators of

hazardous wastes

§123.34 ....................................................Requirements for transporters of

hazardous wastes

§ 123.35 ...........................................................Requirements for hazardous waste

management facilities

§ 123.36 ...........................................................Requirements with respect to permits

and permit applications

§ 123.37 ...........................................................EPA review of State permits

§ 123.38 ...........................................................Approval process

§ 123.39 ...........................................................

§271.4.

§ 271.9.

§271.10.

§271.11.

§ 271.12.

§ 271.13.

§ 271.19.

§ 271.20

Subpart F-Requirements for Interim authorization of Statehazardous waste programs

Retitled: Subpart B-Requirements for interim authorization

Purpose and scope

§123.121 .........................................................

Schedule

§123.122 .........................................................Elements of a program submission

§123.123 .............................Program descripqon

§ 123.124 ................................ : ........................Attorney General's statement

§ 123.125 . ..................................................Memorandum of agreement

§ 123.126 ................................. .......

Authorization plan

§ 123.127 .................... t .................................

Program requirements for interimauthorization for phase I

§ 123.128 ........................................................Additional program requirements for

interim authorization for phase II

§ 123.129 ........................................................

Interstate movement of hazardous waste

§ 123.130 .........................................................

Progress reports

§ 123.131 ........................................................


§ 123.132 ................ .............


§ 123.133 ..................................................

EPA review of State permits

§ 123.134 ........................................................Approval process

§ 123.135 ........................................................

Withdrawal of State programs

§ 123.136 ........................................................Reversion of State programs

§ 123.137 ........................................................

§271.121.

§ 271.122.

§ 271.123.

§271.124.

§ 271.125.

§271.126.

§ 271.127.

§ 271.128.

§ 271.129.

§271.130.

§271.131.

§ 271.132.

§271.133.

§ 271.134.

§271.135

§ 271.136.

§ 271.137.

Part 122 is revised to read as follows:

PART 122-NATIONAL POLLUTANTDISCHARGE ELIMINATION SYSTEM

Subpart A-Definitions and GeneralProgram Requirements

Sec.122.1 Purpose-and Scopi.122.2 Definitions.122.3 Exclusions.

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Sec.122.4 Prohibitions (applicable to State

NPDES Programs, see § 123.25).122.5 Effect of a permit.122.6 Continuation of expiring permits.122.7 Confidentiality of information.

Subpart B-Permit Application and SpecialNPDES Program Requirements122.21 Application for a permit (applicable

to State programs, see § 123.25).122.22 Signatories to permit applications

and reports (applicable to Stateprograms, see § 123.25).

122.23 Concentrated animal feedingoperations (applicable to State NPDESprograms, see § 123.25).

122.24 Concentrated aquatic animalproduction facilities (applicable to StateNPDES programs, see § 123.25].

122.25 Aquaculture projects (applicable toState NPDES programs, see § 123.25).

122.26 Separate storm sewers (applicable toState NPDES programs, see § 123.25).

122.27 Silvicultural activities (applicable toState NPDES programs, see § 123.25).

122.28 General permits (applicable to StateNPDES programs, see § 123.25).

122.29 New sources and new discharges.

Subpart C-Permit Conditions122.41 Conditions applicable to all permits

(applicable to State programs, see§123.25).

122.42 Additional conditions applicable tospecified categories of NPDES permits(applicable to State NPDES programs,see § 123.25).

122.43 Establishing permit conditions(applicable to State programs, see§ 123.25).

122.44 Establishing limitations, standardsand other permit conditions (applicableto State NPDES programs, see § 123.25).

122.45 Calculating NPDES permit conditions(applicable to State NPDES programs.see § 123.25).

122.46 Duration of permits (applicable toState programs, see § 123.25).

122.47 Schedules of compliance.122.48 Requirements for recording and

reporting of monitoring results(applicable to State programs, see§ 123.25).

122.49 Considerations under Federal law.122.50 Disposal of pollutants into wells, into

publicly owned treatment works or byland application (applicable to Stateprograms, see § 123.25].

Subpart D-Transfer, modification,revocation and reissuance, and terminationof permits122.61 Transfer of permits (applicable to

State programs, see § 123.25).122.62 Modification or revocation and

reissuance of permits (applicable to Stateprograms, see § 123.25).

122.63 Minor modifications of permits.122.64. Termination of permits (applicable

to State programs, see § 123.25).Authority: The Clean Water Act, 33 U.S.C.

§ 1251 et seq.Appendix A-NPDES Primary Industry

Categories.Appendix B-Criteria for Determining a

Concentrated Animal Feeding Operation(§ 122.23).

Appendix C-Criteria for Determining aConcentrated Aquatic Animal ProductionFacility (122.24).

Appendix D-NPDES Permit ApplicationTesting Requirements (122.21).

Subpart A-Definitions and General

Program Requirements

§ 122.1 Purposeand scope.(a) Coverage. (1) These regulations

contain provisions for the NationalPollutant Discharge Elimination System(NPDES) Program under sections 318,402, and 405(a) of the Clean Water Act(CWA) (Pub. L. 92-500, as amended byPub. L. 95-217, Pub. L. 95-576, Pub. L. 96-483, and Pub. L. 97-117; 33 U.S.C. 1251 etseq.).

(2) These regulations cover basic EPApermitting requirements (Part 122), whata State must do to obtain approval tooperate its program in lieu of a Federalprogram and minimum requirements foradministering the approved Stateprogram (Part 123), and procedures forEPA processing of permit applicationsand appeals (Part 124). Part 124 is alsoapplicable to other EPA permittingprograms, as detailed in that Part.

(b) Scope of the NPDES permitrequirement. (1) The NPDES programrequires permits for the discharge of"pollutants" from any "point source"into "waters of the United States." Theterms "pollutant", "point source" and"waters of the United States" aredefined in § 122.2.

(2) The following are point sourcesrequiring NPDES permits for discharges:

(i) Concentrated animal feedingoperations as defined in § 122.23;

(ii) Concentrated aquatic animalproduction facilities as defined in§ 122.24;

(iii) Discharges into aquacultureprojects as set forth in § 122.25;

(iv) Discharges from separate stormsewers as set forth in § 122.26; and

(v) Silvicultural point sources asdefined in § 122.27.

(c) State Programs. Certainrequirements set forth in Parts 122 and124 are made applicable to approvedState programs by reference in Part 123.These references are set forth iii§ 123.25. If a section or paragraph of'Parts 122 or 124 is applicable to States,through reference in § 123.25, that fact issignaled by the following words at theend of the section or paragraph heading:(applicable to State programs, see§ 123.25). If these words are absent, thesection (or paragraph) applies only toEPA administered permits.

(d) Relation to other requirements. (1)Permit application forms. Applicants forEPA issued permits must submit theirapplications on EPA's permit applicationforms when available. Most of the

information requested 'on theseapplication forms is required by theseregulations. The basic informationrequired in the general form (Form 1)and the additional information requiredfor NPDES applications (Forms 2a-d)are listed in § 122.21. Applicants forState issued permits must use Stateforms which must require at a minimumthe information listed in these sections.

(2) Technical regulations. The NPDESpermit program has separate additionalregulations that contain technicalrequirements. These separateregulations are used by permit issuingauthorities to determine whatrequirements must be placed in permits,if they are issued. These separateregulations are located at 40 CFR Parts125, 129, 133, 136 and 40 CFR subchapterN (Parts 400-460).

(e) Public participation. This ruleestablishes the requirements for publicparticipation in EPA and State permitissuance and enforcement and relatedvariance proceedings, and in theapproval of State NPDES programs.These requirements carry out thepurposes of the public participationrequirements of 40 CFR Part 25 (PublicParticipation), and supersede therequirements of that Part as they applyto actions covered under Parts 122, 123,and 124.

(f) State authorities. Nothing in Parts122, 123, or 124 precludes more stringentState regulation of any activity coveredby these regulations, whether or notunder an approved State program.

(g) Authority. (1) Section 301(a) ofCWA provides thet "Except as incompliance with this section andsections 302, 306, 307, 318, 402, and 404of this Act, the discharge of anypollutant by any person shall beunlawful."

(2) Section 402(a)(1) of CWA 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 requiremerits under sections301, 302, 306, 307, 308, and 403 of thisAct, or prior to the taking of necessaryimplementing actions relating to all such .requirements, such conditions as theAdministrator determines are necessaryto darry out the provisions of this Act."

(3) Section 318(a) of CWA providesthat "The Administrator is authorized,after public hearings, to permit thedischarge of a specific pollutant orpollutants under controlled conditionsassociated with an approvedaquaculture project under Federal or

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State supervision pursuant to section402 of this Act."

(4) Section 405 of CWA provides, inpart, that "Where the disposal ofsewage sludge resulting from theoperation of a treatment works asdefined in section 212 of this Act(including the removal of in-placesewage sludge from one location and itsdeposit at another location) would resultin any pollutant from such sewagesludge entering the navigable waters,such disposal is prohibited except inaccordance with a permit issued by theAdministrator under section 402 of thisAct."

(5) 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.

(6) Section 304(i) of CWA providesthat the Administrator shall promulgateguidelines establishing uniformapplication forms and other minimumrequirements for the acquisition ofinformation from dischargers inapproved States and establishingminimum procedural and other elementsof approved State NPDES programs.

(7) Section 501(a) of CWA providesthat "The Administrator is authorized toprescribe such regulations as arenecessary to carry out his functionsunder this. Act."

(8) Section 101(e) of CWA providesthat "Public participation in thedevelopment, 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"

§ 122.2 Definitions.The following definitions apply to

Parts 122, 123, and 124. Terms notdefined in this section have the meaninggiven by.CWA. When a defined termappears in a definition, the defined termis sometimes placed in quotation marksas an aid to readers.

Administrator means theAdministrator of the United StatesEnvironmental Protection Agency, or anauthorized representative.

Applicable standards and limitationsmeans all State, interstate. and Federalstandards and linitations to: which a"discharge" or a related actity issubject under the CWA, including"effluent limitations," water quality

standards, standards of performance,toxic effluent standards or prohibitions,"best management practices," andpretreatment standards under sections301, 302, 303, 304. 306, 307, 308, 403, and405 of CWA.

Applicatian means the EPA standardnational forms for applying for a permit,including any additions, revisions ormodifications to the forms; or formsapproved by EPA for use in "approvedStates," includirg any approved.modifications or revisions.

Approved program or approved Statemeans a State or interstate programwhich has been approved or authorizedby EPA under Part 123.

Average monthly discharge limitationmeans the highest allowable average of"daily discharges" over a calendarmonth, calculated as the sum of all"daily discharges" measured during'a

-calendar month divided by the numberof "daily discharges" measured duringthat month.

Average weekly discharge limitationmeans the highest allowable average of"daily discharges" over a calendarweek, calculated as the sum of all "dailydischarges" measured during a calendarweek divided by the number of '"dailydischarges" measured during that week.

Best management practices ("BMPs")means schedules of activities,prohibitions of practices, maintenanceprocedures, and other managementpractices to prevent or reduce thepollution of "waters of the UnitedStates." BMPs also include treatmentrequirements, operating procedures, and'practices to control plant site. runoff,spillage or leaks, sludge or wastedisposal, or drainage from raw materialstorage.,

BMPs means "best managementpractices."

Contiguous zone means the entirezone established by the United Statesunder Article 24 of the Conventi3n onthe Territorial Sea and the ContiguousZone.

Continuous discharge means a"discharge" which occurs withoutinterruption throughout the operatinghours of the facility, except forinfrequent shutdowns for maintenance,process changes, or other similaractivities.

CWA means the Clean Water Act(formerly referred to as the FederalWater Pollution Control Act or FederalWater Pollution Control ActAmendments of 19721 Pub. L-9z-500, asamended by Pub. L. 95-217, PUb7L. 95-576, Pub. L. 96-483 and Pub. L. 97-117, 33U.S.C. 1251 etseq.

CWA and regulations means. theClean Water Act (CWA} and applicableregulations promulgated thereunder. In

the case of an approved State program,it includes State program requirements.

Daily discharge means the "dischargeof a pollutant" measured during acalendar day or any 24-hour period thatreasonably represents the calendar dayfor purposes of sampling. For pollutantswith limitations expressed in units ofmass, the "daily discharge" is calculatedas the total mass of the pollutantdischarged over the day. For pollutantswith limitations expressed in otherunitsof measurement, the "daily discharge" iscalculated as the average measurementof the pollutant over the day.

Direct discharge means the"discharge of a pollutant."

Director means the RegionalAdministrator or the State Director, asthe context requires, or an authorizedrepresentative. When there is no"approved State program," and there isan EPA administered program,"Director" means the RegionalAdministrator. When there is anapproved State program, "Director"normally means the State Director. Insome circumstances, however, EPAretains the authority to take certainactions even when there is an approvedState program. (For example, when EPAhas issued an NPDES permit prior to theapproval of a State program, EPA mayretain jurisdiction aver that permit afterprogram approval, see §,123.1.) In suchcases, the term "Director" means theRegional Administrator and not theState Director.

Discharge when used withoutqualification means, the "discharge of apollutant."

Discharge of apoflutan4 means:(a). Any addition of any "pollutant" or

combination of pollutants to "waters ofthe United States" from any "pointsource," or

(b) Any addition of any pollutant orcombination of pollutants to the watersof the "contiguous zone" or the oceanfrom any point source other than avessel or other floating craft which isbeing used as a means of transportation.This definition includes additions ofpollutants into waters of the UnitedStates from: surface runoff which iscollected or channelled by man;discharges through pipes, sewers, orother conveyances owned by a State,municipality, or other person which donot lead to a treatment works; and.discharges through pipes, sewers, orother conveyances, leading intoprivately owned treatment works. Thisterm does not include an addition ofpollutaits by any "indirect discharger."

Discharge' Monitoring Report("DMR") means the EPA uniformnational form, including any subsequent

14155




additions, revisions, or modifications forthe reporting of self-monitoring resultsby permittees. DMRs must be used by'approved States" as well as by EPA.EPA will supply DMRs to any approvedState upon request. The EPA nationalforms may be modified to substitute theState Agency name, address, logo, andother similar information, asappropriate, in place of EPA's.

DMR means "Discharge MonitoringReport."

Draft permit means a documentprepared under § 124.6 indicating theDirector's tentative decision to issue ordeny, modify, revoke and reissue,terminate, or reissue a "permit." Anotice of intent to terminate a permit,and a notice of intent to deny a permit,as discussed in § 124.5, are types of"draft permits." A denial of a request formodification, revocation and reissuance,or termination, as discussed in § 124.5, isnot a "draft permit." A "proposedpermit" is not a "draft permit."

Effluent limitation means anyrestriction imposed by the Director onquantities, discharge rates, andconcentrations of "pollutants" which are"discharged" from "point sourcfs" into"waters of the United States," thewaters of the "contiguous zone," or theocean.

Effluent limitations guidelines meansa regulation published by theAdministrator under section 304(b) ofCWA to adopt or revise "effluentlimitations."

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

EPA means the United States"Environmental Protection Agency."

Facility or activity means any NPDES"point source" or any other facility oractivity (including land orappurtenances thereto) that is subject toregulation under the NPDES program.

Generalpermit means an NPDES"permit" issued under § 122.28authorizing a category of dischargesunder the CWA within a geographicalarea.

Hazardous substance means anysubstance designated under 40 CFR Part116 pursuant to section 311 of CWA.

Indirect discharger means anondomestic discharger introducing"pollutants" to a "publicly ownedtreatment works."

Interstate agency means an agency oftwo 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 Administratorunder the CWA and regulations.

Major facility means any NPDES"facility or activity" classified as suchby the Regional Administrator, or, in thecase of "approved State programs," theRegional Administrator in conjunctionwith the State Director.

Maximum daily discharge limitationmeans the highest allowable "dailydischarge."

Municipality means a city, town,borough, county, parish, district,association, or other public bodycreated by or under State law andhaving jurisdiction over disposal ofsewage, industrial wastes, or otherwastes, or an Indian tribe or anauthorized Indian tribal organization, ora designated and approved managmentagency under section 208 of CWA.

National Pollutant DischargeElimination System (NPDES) means thenational program for issuing, modifying,revoking and reissuing, terminating,monitoring and enforcing permits, andimposing and enforcing pretreatmentrequirements, under sections 307, 402,318, and 405 of CWA. The term includesan "approved program."

New discharger means any building,structure, facility, or installation:

(a) From which there is or may be anew or additional "discharge ofpollutants" at a "site" at which onOctober 18, 1972 it had never dischargedpollutants; and"(b) Which has never received a finallyeffective NPDES "permit" for dischargesat that site; and

(c) Which is not a "new source."This definition includes an "indirect

discharger" which commencesdischarging into "waters of the UnitedStates." It also includes any existingmobile point source,-such as an offshoreoil drilling rig, seafood processing rig,seafood processing vessel, or aggregateplant, that begins discharging at alocation for which it does not have anexisting permit. [See Note 2 of thissection.]

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

(a) After promulgation of standards ofperformance under section 306 of CWAwhich are applicable to such source, or

(b) After proposal of standards ofperformance in accordance with section306 of CWA which are applicable tosuch source, but only if the standardsare promulgated in accordance withsection 306 within 120 days of theirproposal.

NPDES means "National.,PollutantDischarge Elimination System."

Owner or operator means the owneror operator of any "facility or activity"

subject to regulation under the NPDESprogram.

Permit means an authorization,license, or equivalent control documentissued by EPA or an "approved State" toimplement the requirements of this Partand Parts 123 and 124. "Permit" includesan NPDES "general permit" (§ 122.28].Permit does not include any permitwhich has not yet been the subject offinal agency action, such as a "draftpermit" or a "proposed permit."

Person means an individual,association, partnership, corporation,municipality, State or Federal agency, oran agent or employee thereof.

Point source means any discernible,confined, and discrete conveyance,including but not limited to any pipe,ditch, channel, tunnel, conduiti 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 irrigated agriculture.

Pollutant means dredged spoil, solidwaste, incinerator residue, filterbackwash, sewage, garbage, sewagesludge, munitions, chemical wastes,biological materials, radioactivematerials (except those regulated underthe Atomic Energy Act of 1954, asamended (42 U.S.C. 2011 et seq.)), heat,wrecked or discarded equipment, rock,sand, cellar dirt and industrial,municipal, and agricultural wastedischarged into water. It does not mean:

(a) Sewage from vessels; or(b) Water, gas, or other material

which is injected into a well 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 theState determines -that the injection ordisposal will not result in thedegradation of ground or surface waterresources.

[Note.-Radioactive materials covered bythe Atomic Energy Act are thoseencompassed in its definition of source,byproduct, or special nuclear materials.Examples of materials not covered includeradium and accelerator-produced isotopes.See Train v. Colorado Public InterestResearch Group, Inc., 426 U.S. 1 (1976].]

POTW means "publicly ownedtreatment works."

Primary industry category means anyindustry category listed in the NRDCsettlement agreement (NaturalResources Defense Council et a. v.Train, 8 E.R.C. 2120 (D.D.C. 1976),

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Federal Register I Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations

modified 12 E.R.C. 1833 (D.D.C- 1979));also listed in Appendix A of Part 122.

Privately owned treatment worksmeans any device or system which is (a)used to treat wastes from any facilitywhose operator is not the operator of thetreatment works and (b) not a "POTW."

Process wastewater means any waterwhich,, during manufacturing orprocessing comes into direct contactwith or results from the production oruse of any raw material, intermediateproduct, finished product, byproduct, orwaste product.

Proposedpermit means a StateNPDES "permit'prepared after theclose of the public comment period (and,when applicable, any public hearing andadministrative appeals) which is sent toEPA for review before final issuance bythe State. A "proposed permit" is not a"draft permit."

Publicly owned treatment works("POTW') means any device or systemused in the treatment (includingrecycling and reclamation) of municipalsewage or industrial wastes. of a liquidnature which is owned by a "State" or"municipality." This definition includessewers, pipes, or other conveyancesonly if they convey wastewater to aPOTW providing treatment

Recommencing dischagermeans asource Which recommences discharge.after terminating operations.

Regional Administrator means theRegional. Administrator of theappropriate Regional Office of theEnvironmental Protection Agency or theauthorized representative of theRegional Administrator.

Schedule of compliance means aschedule of remedial measures includedin a "permit',. including an enforceablesequence of interim requirements (forexample, actions. operations, ormilestone events) leading to compliancewith the CWA and regulations.

Secondary industry category meansany industry category which is not a"primary industry category."

Secretary means the Secretary of theArmy, acting through the Chief ofEngineers.

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 CWA, except thatwith respect to commercial vessels onthe 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

treatment works." "Sewage" as used inthis definition means any wastes,including wastes from humans,households, commercial establishments,industries, and storm water runoff, thatare discharged to or atherwise, enter apublicly owned treatment works.

Site means the land or water areawhere any "facility or activity" isphysically located or conductedincluding adjacent land used inconnection with the facility or activity.

State means any of the 50- States, theDistrict of Columbia. Guam, theCommanwealth of Puerto Rico. theVirgin Islands,, American: Samoa, andthe Trust Territory of the Pacific Islands.

State Director means the chiefadministrative officer of any State orinterstate agency operating an"approved program," or the delegatedrepresentative of the State Direator. Ifresponsibility is divided among two ormore State or interstate agencies, "StateDirector" means the. chief administrativeofficer of the State or interstate agencyauthorized to, perform the particularprocedure or function to which referenceis made

State/EPA Agreement means anagreement between the RegionalAdministrator and the State whichcoordinates, EPA and State activities,responsibilities. and programs includingthose under the CWA programr.

Total dissolved solids. means the totaldissolved (filterablel solids asdetermined by use of'the methodspecified in 40 CFR Part 136.

Toxic-pollutant means any pallutantlisted as toxic. under' section 307(aJ(1) ofCWA.

Variance means any mechanism orprovision under sections 301 or 3.1 ofCWA or under 40. CFR Part 125, or in theapplicable "effluent limitations.guidelines" which allows modificationto or waiver of the generally applicableeffluent limitation requirements or timedeadlines of CWA. This includesprovisions which allow theestablishment of alternative limitationsbased on fundamentally differentfactors or on sections 301(c), 301(g),301(h), 301(i), or 316(a) of'CWA.

Waters- of the United States or watersof the U.S. means:

(a) 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;

(b) All interstate waters;, includinginterstate "wetlands;"

(c) All other waters such as intrastatelakes, rivers, streams (includingintermittent streams), mudflats,sandflats, "wetlands," sloughs, prairie

potholes, wet meadows, playa lakes, ornatural 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 or foreign travelers forrecreational or other-purposes;

(2): From which fish or shellfish are orcould be taken and sold in interstate orforeign commerce; or

(3] Which are used or could be usedfor industrial purposes by industries ininterstate commerce;

(d) All impoundments of watersotherwise defined as waters of theUnited States under this definition,

(e) Tributaries of waters. identified inparagraphs (a)-(d) of this definition;

(f) The. territorial sea; and(g) "Wetlands" adjacent to. waters

(other than waters that are themselveswetlands) identified in paragraphs (a)-(f) of this definition.

Waste treatment systems, includingtreatment ponds or lagoons designed tomeet the requirements of CWA (otherthan cooling ponds as defined in 40 CFR§ 423.11(m) which also meet the criteriaof this definitionj are not waters of theUnited States. This exclusion appliesonly to manmade bodies of water whichneither were originally created in watersof the United, States (such as disposalarea in wetlands) nor resulted from theimpoundment of waters of the UnitedStates. [See Note I of this section.]

Wetlands means those areas that areinundated or saturated by surface orgroundwater at a frequency andduration sufficient to support, and thatunder normal circumstances do support,a prevalence of vegetation typicallyadapted for life in saturated soilconditions. Wetlands generally includeswamps, marshes, bogs, and similarareas.

[Note 1.-At45 FR 48620, July 21, 1980, theEnvironmental Protection Agency suspendeduntil further notice in § 122.2, in the definitionof "Waters of the United States." Thisrevision continues that suspension.]. [Note 2.-At 45 FR 68391, Oct. 15, 1980.

effective Oct. 15, 1980; the EnvironmentalProtection Agency suspended until furthernotice the NPDES "new discharger"definition as it applies to offshore mobiledrilling rigs operating in offshore areasadjacent to the Gulf Coast, Atlantic Coast,California and Alaska, except for the FlowerGarden area in the Gulf of Mexico and otherareas identified as environmentally sensitiveby the Bureau of Land Management. Thisrevision continues that suspension.]§ 122.3 Exclusions.. The following discharges do not

require NPDES permits:

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(a) Any discharge of sewage fromvessels, 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 used as anenergy or mining facility, a storagefacility or a seafood processing facility,or when secured to a storage facility ora seafood processing facility, or whensecured to the bed of the ocean,contiguous zone or waters of theUnited States for the purpose of mineralor oil exploration or development.

(b) Discharges of dredged or fillmaterial into waters of the United Stateswhich are regulated under section 404 ofCWA.

(c) The introduction of sewage,industrial wastes or other pollutants intopublicly owned treatment works byindirect dischargers. Plans oragreements to switch to this method ofdisposal in the future do not relievedischargers of the obligation to have andcomply with permits until all dischargesof pollutants to waters of the UnitedStates are eliminated. (See also§ 122.47(b)). This exclusion does notapply to the introduction of pollutants toprivately owned treatment works or toother discharges through pipes, sewers,or other conveyances owned by a State,municipality, or other party not leadingto treatment works.

(d) Any discharge in compliance withthe instructions of an On-SceneCoordinator pursuant to 40 CFR Part1510 (The National Oil and HazardousSubstances Pollution Plan) or 33 CFR153.10(e) (Pollution by Oil andHazardous Substances).

(e) Any introduction of pollutantsfrom non point-source agricultural andsilvicultural activities, including runofffrom orchards, cultivated crops,pastures, range lands, and forest lands,but not discharges from concentratedanimal feeding operations as defined in§ 122.23, discharges from concentratedaquatic animal production facilities asdefined in § 122.24, discharges toaquaculture projects as defined in§ 122.25, and discharges fromsilvicultural point sources as defined in§ 122.27.

(f) Return flows from irrigatedagriculture.

(g) Discharges into a privately ownedtreatment works, except as the Directormay otherwise require under§ 122.44(m).

§ 122.4 Prohibitions (applicable to StateNPDES programs, see § 123.25).

No permit may be issued:(a) When the conditions of the permit

do not provide for compliance with theapplicable requirements of CWA, orregulations promulgated under CWA;

(b) When the applicant is required toobtain a State or other appropriatecertification under section 401 of CWAand § 124.53 and that certification hasnot been obtained or waived;

(c) By the State Director where theRegional Administrator has objected toissuance of the permit under § 123.44;

(d) When the imposition of conditionscannot ensure compliance with theapplicable water quality requirements ofall affected States;

(e) When, 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 inconsistentwith a plan or plan amendmentapproved under section 208(b) of CWA;

(h) For any discharge to the territorialsea, the waters of the contiguous zone,or the oceans in the followingcircumstances:

(1) Before the promulgation ofguidelines under section 403(c) of CWA(for determining degradation of thewaters of the territorial seas, thecontiguous zone, and the oceans) unlessthe Director determines permit issuanceto be in the public interest; or

(2) After promulgation of guidelinesunder section (403(c) of CWA, wheninsufficient information exists to make areasonable judgment whether thedischarge complies with them.

(i) To a new source or a newdischarger, if the discharge from itsconstruction or operation will cause ofcontribute to the violation of waterquality standards. The owner oroperator of a new source or newdischarger proposing to discharge into awater segment which does not meetapplicable water quality standards or isnot expected to meet those standardseven after the application of the effluentlimitations required by section301(b)(1)(A) and 301(b)(1)(B) of CWA,and for which the State or interstateagency has performed a pollutants loadallocation for the pollutant to bedischarged, must demonstrate, beforethe close of the puublic comment period,that:

(1) There are sufficient remainingpollutant load allocations to allow forthe descharge; and

(2) The existing dischargers into thatsegment are subject to complianceschedules designed to bring the segmentinto compliance with applicable waterquality standards.

§ 122.5 Effect of a permit(a) Applicable to State programs, see

§ 123.25. Except for any toxic effluentstandards and prohibitions imposedunder section 307 of the CWA,compliance with a permit during its termconstitutes compliance, for purposes ofenforcement, with section 301, 302, 306,307, 318, 403, and 405 of CWA. However,a permit may be modified, revoked andreissued, or terminated during its termfor cause as set forth in § § 122.62 and122.64.

(b) Applicable to State programs, See§ 123.25. The issuance of a permit doesnot convey any property rights of anysort, or any exclusive privilege.

(c) The issuance of a permit does notauthorize any injury to persons orproperty or invasion of other privaterights, or any infringement of State orlocal law or regulations.

§ 122.6. Continuation of expiring permits.(a) EPA permits. When EPA is the

permit-issuing authority, the conditionsof an expired permit continue in forceunder 5 U.S.C. 558(c) until the effectivedate of a new permit (see § 124.15) if:

(1) The permittee has submitted atimely application under § 122.21 whichis a complete (under § 122.21(e))application for a new permit; and

(2] The Regional Administrator,through no fault of the permittee doesnot issue a new permit with an effectivedate under § 124.15 on or before theexpiration date of the previous permit(for example, when issuance isimpracticable due to time orresourceconstraints).

(b) Effect. Permits continued underthis section remain.fully effectively andenforceable.

(c) Enforcement. When the permitteeis not in compliance with the conditionsof the expiring or expired permit theRegional Administrator may choose todo any or all of the following:

(1) Initiate enforcement action basedupon the permit which has beencontinued;

(2) Issue a notice of intent to deny thenew permit under § 124.6. If the permit isdenied, the owner or oprator would thenbe required to cease the activitiesauthorized by the continued permit or besubject to enforcement action foroperating without a permit;

(3) Issue a new permit under Part 124with appropriate conditions; or

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(4) Take other actions authorized bythese regulations.

(d) State continuation. (1) An EPA-issued permit does not continue in forcebeyond its expiration date underFederal law if at that time a State is thepermitting authority. States authorizedto administer the NPDES program maycontinue either EPA or State-issuedpermits until the effective date of thenew permits, if State law allows.Otherwise, the facility or activity isoperating without a permit from the timeof expiration of the old permit to theeffective date of the State-issued newpermit.

§ 122.7 Confidentiality of Information.(a) In accordance with 40 CFR Part 2,

any information submitted to EPApursuant to these regulations may beclaimed as confidential by the submitter.Any such claim must be asserted at thetime of submission in the mannerprescribed on the application form orinstructions or, in the case of othersubmissions, by stamping the words"confidential business information" oneach page containing such information.If no claim is made at the time ofsubmission, EPA may make theinformation available to the publicwithout further notice. If a claim isasserted, the information will be treatedin accordance with the procedures in 40CFR Part 2 (Public Information).

(b) Applicable to State programs, see§ 123.25. Claims of confidentiality for thefollowing information will be denied:

(1) The name and address of anypermit applicant or permittee;

.t2) Permit applications, permits, andeffluent data.

(c) Applicable to State programs, see§ 123.25. Information required by NPDESapplication forms provided by theDirector under § 122.21 may not beclaimed confidential. This includesinformation submitted on the formsthemselves and any attachments used tosupply information required by theforms.

Subpart B-Permit Application andSpecial NPDES Program Requirements

§ 122.21 Application for a permit(applicable to State programs, see§ 123.25).

(a) Duty to apply. Any person whodischarges or proposes to dischargepollutants and who does not have aneffective permit, except persons coveredby general permits under § 122.28,excluded under § 122.3, or a user of aprivately owned treatment works unlessthe Director requires otherwise under§ 122.44(m), shall submit a completeapplication (which shall include a BMP

program if necessary under 40 CFR125.102) to the Director in accordancewith this section and Part 124.

(b) Who applies? When a facility oractivity is owned by one person but isoperated by another person, it is theoperator's duty to obtain a permit.

(c) Time to apply. Any personproposing a new discharge shall submitan application at least 180.days beforethe date on which the discharge is tocommence, unless permission for a laterdate has been granted by the Director.Persons proposing a new discharge areencouraged to submit their applicationswell in advance of the 180 day

requirement to avoid delay. See alsoparagraph (k) of this section.

(d) Duty to reapply. (1) Any POTWwith a currently effective permit shallsubmit a new application at least 180days before the expiration date of theexisting permit, unless permission for alater date has been granted by theDirector. (The Director shall not grantpermission for applications to besubmitted later thati the expiration dateof the existing permit.)

(2) All other permittees with currentlyeffective permits shall submit a newapplication in accordance with the tablebelow:

Permit expires Application requirement Deadline for submission

On or before Nov. 30. 1980 . (1) If applicant has submitted new application before Apr. Not applicable.(230, 1980, new application b Is not required.s(2) If applicant has not submitted now application before Date on which ermit expres.

Apr. 30, 1980, applicant must submit new application.'.Dec. 1, 1980-May 31. 1981 New applicationI .............................. ......................................... 90 days before permit expires.

23

On or after Jung 1, 1981 .......... I New application I .................................................. 1 180 days before 3 permit expires.

'The new application requirements are set forth in paragraphs (f), (g), and (h) this section. Apptcants for EPA-i.sued permitsmust use Forms 1 and either 2b or 2c of EPA's consolidated permit application forms to apply under those sections.

2Applicants may request additional time for the submission of information required by paragraphs (d)(7), (9) and (10) of thissection. The request must be in writing and must state the reasons this information could not be submitted on time. Basedupon this request, the Director may extend the time to submit all or some of the information up to sbx months beyond thedeadline for submission or June 30, 1981, whichever is earlier.

3The Director may grant permission to submit an application later than this date, but no later than the expiration date of thepermit..

[See Note 5.]

(e) Completeness. The Director shallnot issue a permit before receiving acomplete application for a permit exceptfor NPDES general permits. Anapplication for a permit is completewhen the Director receives anapplication form and any supplementalinformation which are completed to hisor her satisfaction. The completeness ofany application for a permit shall bejudged independently of the status ofany other permit application or permitfor the same facility or activity. For EPAadministered NPDES programs, anapplication which is reviewed under§ 124.3 is complete when the Directorreceives either a complete application orthe information listed in a notice ofdeficiency.

(f) Information requirements. Allapplicants for NPDES permits shallprovide the following information to theDirector, using the application formprovided by the Director (additionalinformation required of applicants is setforth in paragraphs (g)-(k)) of thissection.

(1) The activities conducted by theapplicant which require it to obtain anNPDES permit.

(2) Name, mailing address, andlocation of the facility for which theapplication is submitted.

(3) Up to four SIC codes which bestreflect the principal products or servicesprovided by the facility.

(4) The operator's name, address,telephone number, ownership status,and status as Federal, State, private,public, or other entity.

(5) Whether the facility is located onIndian lands.

(6) A listing of all permits orconstruction approvals received orapplied for under any of the followingprograms:

(i) Hazardous Waste Managementprogram under RCRA.

(ii) UIC program under SDWA.(iii) NPDES program under CWA.(iv) Prevention of Significant

Deterioration (PSD) program under theClean Air Act.

(v) Nonattainment program under theClean Air Act.

(vi) National Emission Standards forHazardous Pollutants (NESHAPS)preconstruction approval under theClean Air Act.

(vii) Ocean dumping permits under theMarine Protection Research andSanctuaries Act.

(viii) Dredge or fill permits undersection 404 of CWA.

(ix) Other relevant environmentalpermits, including State permits.

(7) A topographic map (or other map ifa topographic map is unavailable)extending one mile beyond the propertyboundaries of the source, depicting thefacility and each of its intake anddischarge structures; each of its

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hazardous waste treatment, storage, ordisposal facilities; each well wherefluids from the facility are injectedundergromd; and those wells, springs,other surface water bodies, and drinkingwater wells listed in public records orotherwise known to the applicant in themap area.

(8) A brief description of the nature ofthe business.

(g) Application requirements forexisting manufacturing, commercial,mining, and silviculiural dischargers.Existing manufacturing, commercial,mining, and silvicultural dischargersapplying for NPDES permits shallprovide the following information to theDirector, using application formsprovided by the Director:

(1) Outfalllocation. The latitude andlongitude to the nearest 15 seconds andthe name of the receiving water.

(2) Line Drawing. A line drawing ofthe water flow through the facility witha water balance, showing operationscontributing wastewater to the effluentand treatment units. Similar processes,operations, or production areas may beindicated as a single unit, labeled tocorrespond to the more detailedidentification under paragraph (g)(3) ofthis section. The water balance mustshow approximate average flows atintake and discharge points andbetween units, including treatment units.If a water balance cannot be determined(for example, for certain'miningactivities), the applicant may provideinstead a pictorial description of thenature and amount of any sources ofwater and any collection and treatmentmeasures.

(3) Average flows and treatment. Anarrative identification of each type ofprocess, operation, or production areawhich contributes wastewater to theeffluent for each outfall. includingprocess wastewater, cooling water, andstormwater runoff; the average flowwhich each process contributes; and adescription of the treatment thewastewater receives, including theultimate disposal of any solid or fluidwastes other than by discharge.Processes, operations or productionareas may be described in general terms(for example, "dye-making reactor","distillation tower".) For a privatelyowned treatment works, thisinformation shall include the identity ofeach user of the treatment works.

(4) Intermittent flows. If any of thedischarges described in paragraph (g)(3)of this section are intermittent orseasonal, a description of the frequency,duration and flow rate of each dischargeoccurrence (except for stormwaterrunoff, spillage or leaks).

(5) Maximum production If aneffluent guideline promulgated undersection 304 of CWA applies to theapplicant and is expressed in terms ofproduction (or other measure ofoperation), a reasonable measure of theapplicant's actual production reported inthe units used in the applicable effluentguideline. The reported measure mustreflect the actual production of thefacility as required by § 122.45(b)'2).

(6) Improvements. If the applicant issubject to any present requirements orcompliance schedules for construction,upgrading or operation of wastetreatment equipment, an identificationof the abatement requirement, adescription of the abatement project,and a listing of the required andprojected final compliance dates..

(7) Effluent characteristics.Information on the discharge ofpollutants specified in this paragraph.When "quantitative data" for a pollutantis required, the applicant must collect a.sample of effluent and analyze it for thepollutant in accordance w.ith analyticalmethods approved under 40 CFR Part136. When no analytical method isapproved the applicant may use anysuitable method but must provide adescription of the method. When anapplicant has two or more outfalls withsubstantially identical effluents, theDirector may allow the applicant to testonly one outfall and report that thequantitative data also applies to thesubstantially identical outfalls. Therequirements in paragraphs (g)(7) (iii)and (iv) of this section that an applicantmust provide quantitative data forcertain pollutants known or believed tobe present does not apply to pollutantspresent in a discharge solely as theresult of their presence in intake water;however, an applicant must report suchpollutants as present. Grab samplesmust be used for pH, temperature,cyanide, total phenols, residual chlorine,oil and grease, and fecal coliform. Forall other pollutants, 24-hour compositesamples must be used.An applicant is expected to "know orhave reason to believe" that a pollutantis present in an effluent based on anevaluation of the expected use,production, or storage of the pollutant,or on any previous analyses for thepollutant. (For example, any pesticidemanufactured by a facility may beexpected to bd present in contaminatedstorm water runoff from the facility.)

(i)(A) Every applicant must reportquantitative data for every outfall forthe following pollutants:

"Biochemial Oxygen Demand (BOD.)Chemical Oxygen DemandTotal Organic Carbon

Total Suspended SolidsAmmonia (as N)Temperature (both winter and summer)pH

(B) At the applicant's request, theDirector may waive the reportingrequirements for one or more of thepollutants listed in paragraph (g)(7)(i)(A)of this section.

(i) Each applicant with processes inone or more primary industry category(see Appendix A to Part 122]contributing to a discharge must reportquantitative data for the followingpollutants in each outfall containingprocess wastewater:

(A) The organic toxic pollutants in thefractions designated in Table I ofAppendix D of this Part for theapplicant's industrial category orcategories unless the Applicant qualifiesas a small business under paragraph(d)(8) of this section. Table II ofAppendix D of this Part lists the organictoxic pollutants in each fraction. Thefractions result from the samplepreparation required by the analyticalprocedure which uses gaschromotography/mass spectrometry. Adetermination that an applicant fallswithin a particular induistrial categoryfor the purposes of selecting fractionsfor testing is not conclusive as to theapplicant's inclusion in that category forany other purposes. [See Notes 2, 3, and4 of this section.]

(B) The pollutants listed in Table III ofAppendix D of this Part (the toxicmetals, cyanide, and total phenols.

(iii) Each applicant must report foreach outfall quantitative data for the.following pollutants, if the applicantknows or has reason to believe that thepollutant is discharged from the outfall:

(A) All pollutants listed in Table II orTable III of Appendix D of this Part (thetoxic pollutantsl for which quantitativedata is not otherwise required underparagraph (g)(71(ii) of this section exceptthat an applicant qualifying as a smallbusiness under paragraph (g)(8) of thissection is not required to analyze for thepollutants listed in Table II of AppendixD of this Part (the organic toxicpollutants).

(B) All pollutants in Table IV ofAppendix D of this Part (certainconventional and nonconventionalpollutants).

(iv) Each applicant must indicatewhether it knows or has reason tobelieve that any of the pollutants inTable V of Appendix D of this Part(certain hazardous substances andasbestos] is discharged from eachoutfall. For every pollutant expected tobe discharged, the applicant must brieflydescribe the reasons the pollutant is

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expected to be discharged, and reportany quantitative data it has for anypollutant.

(v) Each applicant must reportqualitative data, generated using a-screening procedure not calibrated withanalytical standards, for 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) ifit:

(A) Uses or manufactures 2,4,5-trichlorophenoxy acetic acid (2,4,5,-T); 2-(2,4,5-trichlorophenoxy) propanoic acid(Silvex, 2,4,5,-TP); 2-(2,4,5-trichlorophenoxy) ethyl, 2,2-dichloropropionate (Erbon); 0,0-dimethyl 0-(2,4,5-trichlorophenyl)phosphorothioate (Ronnel); 2,4,5-trichlorophenol (TCP); orhexachlorophene (HCP); or

(B) Knows or has reason to believethat TCDD is or may be present in aneffluent.

(8) Small business exemption. Anapplicant which qualifies as a smallbusiness under one of the followingcriteria is exempt from the requirementsin paragraphs (g)(7)(ii)(A) or (g)(7)(iii)(A)of this section to submit quantitativedata for the pollutants listed in Table IIof Appendix D of this Part (the organictoxic pollutants):

(i) For coal mines, A probable totalannual production of less than 100,000tons per year.

(ii) For all other applicants, gross totalannual sales averaging less than$100,000 per year (in second quarter1980 dollars).

(9) Used or manufactured toxics. Alisting of any toxic pollutant which theapplicant does or expects that it willduring the next 5 years use ormanufacture as an intermediate or finalproduct or byproduct.

(10) Potential discharges. Adescription of the expected levels of andthe reasons for any discharges ofpollutants which the applicant knows orhas reason to believe will exceed twotimes the values reported in paragraph(g)(7) of this section over the next 5years.

(11) Biological toxicity tests. Anidentification of any biological toxicitytests which the applicant knows or hasreason to believe have been madewithin the last 3 years on any of theapplicant's discharges or on a receivingwater in relation to a discharge.

(12) Contract analyses. If a contractlaboratory or consulting firm performedany of the analyses required byparagraph (g)(7) of this section, theidentity of each laboratory or firm andthe analyses performed.

(13) Additional information. Inaddition to the information reported onthe application form, applicants shallprovide to the Director, at his or her

request, such other information as theDirector may reasonably require toassess the discharges of the facility andto determine whether to issue an NPDESpermit. The additional information mayinclude additional quantitative data andbioassays to assess the relative tdxicityof discharges to aquatic life andrequirements to determine the cause ofthe toxicity.

(h) Application requirements for newand existing concentrated animalfeeding operations and aquatic animalproduction facilities. New and existingconcentrated animal feeding operations(defined in § 122.23) and concentratedaquatic animal production facilities(defined in § 122.24) shall provide thefollowing information to the Director,using the application form provided bythe Director:

(1) For concentrated animal feedingoperations:

(i) The type and number of animals inopen confinement and housed underrobf.

(ii) The number of acres used forconfinement feeding.

(iii) The design basis for the runoffdiversion and control system, if oneexists, including the number of acres ofcontributing drainage, the storagecapacity, and the design safety factor.

(2) For concentrated aquatic animalproduction facilities:

(i) The maximum daily and averagemonthly flow from each outfall.

(ii) The number of ponds, raceways,and similar structures.

(iii) The name of the receiving waterand the source of intake water.

(iv) For each species of aquaticanimals, the total yearly and maximumharvestable weight.

(v) The calendar month of maximumfeeding and the total mass of food fedduring that month.

(i) Application requirements for newand existing POTWs. (Reserved.]

(j) Application requirements for newsources and new dischargers.[Reserved.]

(k) Special provisions for applicationsfrom new sources. (1) The owner oroperator of any facility which may be anew source(as defined in § 122.2) andwhich is located in a State without anapproved NPDES program must complywith the provisions of this paragaraph.

(2)(i) Before beginning any on-siteconstruction as defined in § 122.29, theowner or operator of any facility whichmay 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 to

determine whether the facility is a newsource.

(ii) The Regional Administrator shallmake an initial determination whetherthe facility is a new source within 30days of receiving all necessaryinformation under paragraph (k)(2)(i) ofthis section.

(3) The Regional Administrator shallissue a public notice in accordance with§ 124.10 of the new source determinationunder paragraph (k)(2) of this section. Ifthe Regional Administrator hasdetermined that the facility is a newsource, the notice shall state that theapplicant must comply with theenvironmental review requirements of40 CFR 6.600 et seq.

(4) Any interested person maychallenge the Regional Administrator'sinitial new source determination byrequesting an evidentiary hearing underSubpart E of Part 124 within 30 days ofissuance of the public notice of theinitial determination. The RegionalAdministrator may defer the evidentiaryhearing on the determination until aftera final permit decision is made, andconsolidate the hearing on thedetermination with any hearing on thepermit.(1) Variance requests by non-POTWs.

A discharger which is not a publiclyowned treatment works (POTW) mayrequest a variance from otherwiseapplicable effluent limitations under anyof the following statutory or regulatoryprovisions within the times specified inthis paragraph:

(1) Fundamentally different factors. Arequest for a variance based on thepresence of "fundamentally differentfactors" from those on which theeffluent limitations guideline was based,shall be made by the close of the publiccomment period under § 124.10. Therequest shall explain how therequirements of § 124.13 and 40 CFR Part125, Subpart D have been met.

(2) Non-con ventional pollutants. Arequest for a variance from the BATrequirements for CWA section301(b)(2)(F) pollutants (commonly called"non-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, when .thoserequirements were based on effluentlimitation guidelines, must be made by:

(i) Submitting an initial request td theRegional Administrator, as well as tothe State Director if applicable, statingthe name of the discharger, the permitnumber, the outfall number(s), theapplicable effluent guideline, andwhether the discharger is requesting a

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section 301(c) or section 301(g)modification or both. This request musthave been filed not later than:

(A) September 25, 1978, for a pollutantwhich is controlled by a BAT effluentlimitation guideline promulgated before-December 27, 1977; or

(B) 270 days after promulgation of anapplicable effluent limitation guidelinefor guidelines promulgated afterDecember 27, 1977; and

(ii) Submitting a completed request nolater than the Vlose of the publiccomment period under § 124.10demonstrating that the requirements of§ 124.13 and the applicable requirementsof Part 125 have been met.

(iii) Requests for variance fromeffluent limitations not based on effluentlimitation guidelines need only complywith paragraph (1](2)(ii) of this sectionand need not be preceded by an initialrequest under paragraph (1)(2)(i) of thissection.

(3) Delay in construction of POTW.An extension under CWA section301(il{2) of the statutory deadlines insections 301(b)(1)(A) or (b)(1](C} ofCWA based on delay in completion of aPOTW into which the source is todischarge must have been requested onor before June 26, 1978, or 180 days afterthe relevant POTW requested anextension under paragraph (m(2) of thissection, whichever is later, but in noevent may this date have been later thanDecember 25, 1978. The request shallexplain how the requirements of 40 CFRPart 125, Subpart J have been met.

(4) Innovative technology. Anextension under CWA section 301(k)from the statutory deadline of section301(b)(2)(A) for best availabletechnology based on the use ofinnovative technology may be requestedno later than the close of the publiccomment period under § 124.10 for thedischarger's initial permit requiringcompliance with section 301(b)(2)(A).The request shall demonstrate that therequirements of § 124.13 and Part 125,Subpart C have been met.

(5) Water quality related effluentlimitations. A modification undersection 302(b)(2) of requirements undersection 302(a) for achieving waterquality related effluent limitations maybe requested no later than the close ofthe public comment period under§ 124.10 on the permit from which themodification is sought.

(6) Thermal discharges. A varianceunder CWA section 316(a) for thethermal component of any dischargemust be filed with a timely applicationfor a permit under this section, exceptthat if thermal effluent limitations areestablished under CWA Section402(a)(1) or are based on water quality

standards the request for a variancemay be filed by the close of the publiccomment period under § 124.10. A copyof the request as required under 40 CFRPart 125, Subpart H,'shall be sentsimultaneously to the appropriate Stateor interstate certifying agency asrequired under 40 CFR Part 125. (See§ 124.65 for special procedures forsection 316(a) thermal variances.)(m) Variance requests by POTWs. A

discharger which is a publicly ownedtreatment works (POTW) may request avariance from otherwise applicableeffluent limitations under any of thefollowing statutory provisions asspecified in this paragraph:

(1) Discharges into marine waters. Arequest for a modification under CWAsection 301(h) of requirements of CWAsection 301(b)(1)(B) for discharges intomarine waters must be filed inaccordance with the requirements of 40CFR Part 125, Subpart G.

(2) Delay in construction. Anextension under CWA section 301(i)(1)of the statutory deadlines in CWAsection 301(b)(1)(B) or (b)(1}(C) based ondelay in the construction of the POTWmust have been requested on or beforeJune 26, 1978.

(3] Water quality based effluentlimitation. A modification under CWAsection 302(b)(2) of the requirementsunder section 302(a) for achieving waterquality based effluent limitations shallbe requested no later than the close ofthe public comment period under§ 124.10 on the permit from which themodification is sought.

(n) Expedited variance proceduresand time extensions; (1)Notwithstanding the time requirementsin paragraphs (1) and (m) of this section,the Director may notify a permitapplicant before a draft permit is issuedunder § 124.8 that the draft permit willlikely contain limitations which areeligible for variances. In the notice theDirector may require the applicant as acondition of consideration of anypotential variance request to submit arequest explaining how the requirementsof 40 CFR Part 125 applicable to thevariance have been met and mayrequire its submission within a specifiedreasonable time after receipt of thenotice. The notice may be sent beforethe permit application has beensubmitted. The draft or final permit maycontain the alternative limitations whichmay become effective upon final grantof the variance.

(2) A discharger who cannot file a.complete request required underparagraph (l)(2)(ii) or (l)(2](iii) of thissection may request an extension. Theextension may be granted or denied atthe discretion of the Director.

Extensions shall be no more than 6months in duration.

(o) Recordkeeping. Applicants shallkeep records of all data used tocomplete permit applications and anysupplemental information submittedunder this section for a period of at least3 years from the date the application issigned.

[Note 1.-At 46 FR 2046, Jan. 8, 1981, theEnvironmental Protection Agency suspendeduntil further notice § 122.21(g)(7](ii)(A) andthe corresponding portions of Item V-C of theNPDES application Form 2c as they apply tocoal mines. This revision continues thatsuspension.]

[Note 2.-At 46 FR 22585, Apr. 20, 1981, theEnvironmental Protection Agency suspended,until further notice § 122.21(g)(7](iiJ(Al andthe corresponding portions of Item V-C of theNPDES application Form 2c as they apply to:

1. Testing and reporting for all four organicfractions in the Greige Mills Subcategory ofthe Textile Mills industry (Subpart C-Lowwater use processing of 40 CFR Part 4101, andtesting and reporting for the pesticide fractionin all other subcategories of this industrialcategory.

2. Testing and reporting for the volatile,base/neutral and pesticide fractions in theBase and Precious Metals Subcategory of theOre Mining and Dressing industry (Subpart Bof 40 CFR Part 440), and testing and reportingfor all four fractions in all other subcategoriesof this industrial category.

3. Testing and reporting for all four GC/MSfractions in the Porcelain Enameling industry.This revision continues that suspension.]

[Note 3.-At 46 FR 35090, July 1, 1981, theEnvironmental Protection Agency suspendeduntil further notice, § 122.21(g)(7)(ii}(A) andthe corresponding portions of Item V-C of theNPDES application Form 2c as they apply to:

1. Testing and reporting for the pesticidefraction in the Tall Oil Rosin Subcategory(Subpart D) and Rosin-Based DerivativesSubcategory (Subpart F] of the Gum andWood Chemicals industry (40 CFR Part 454),and testing and reporting for the pesticideand base-neutral fractions in all othersubcategories of this industrial category.

2- Testing and reporting for the pesticidefraction in the Leather Tanning and Finishing,Paint and Ink Formulation, and PhotographicSupplies industrial categories.

3. Testing and reporting for the acid, base/neutral and pesticide fractions in thePetroleum Refining industrial category.

4. Testing and reporting for the pesticidefraction in the Papergrade Sulfitesubcategories (Subparts I and U) of the Pulpand Paper industry (40 CFR Part 430); testingand reporting for the base/neutral andpesticide fractions in the followingsubcategories: Deink (Subpart Q, DissolvingKraft (Subpart F), and Paperboard fromWaste Paper (Subpart E) testing andreporting for the volatile, base/neutral andpesticide fractions in the followingsubcategories: BCT Bleached Kraft (SubpartH], Semi-Chemical, (Subparts B and C1, andNonintegrated-Fine Papers (Subpart Rl' andtesting and reporting for-the acid, base/

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neutral, and pesticide fractions in thefollowing subcategories: Fine Bleached Kraft(Subpart I), Dissolving Sulfite Pulp (SubpartK), Groundwood-Fine Papers (Subpart 0),Market Bleached Kraft (Subpart G), Tissuefrom Wastepaper (Subpart T), andNonintegrated-Tissue Papers (Subpart S).

5. Testing and reporting for the base/neutral fraction in the Once-Through CoolingWater, Fly Ash and Bottom Ash TransportWater process wastestreams of the SteamElectric Power Plant industrial category.This revision continues that suspension.]

[Note 4.-At 46 FR 36703, July 15, 1981, theEnvironmental Protection Agency suspendeduntil further notice portions of § 122.21(d)(2),as set forth below:

1. Footnote (2) to the table in § 122.21(d](2).2. In footnote (3) to the table in 40 CFR

§ 122.21(d)(2), the portion which restricts theDirector's authority to extend the applicationdeadline-no later than the permit expirationdate as that restriction applies to thesubmission of data required by § 122.21(d) (7),(9), and [10). Thus, during the suspension,footnote (3) effectively reads as follows:

3. The Director may grant permission tosubmit an application later than this date but(except for information required byparagraph (d) (7), (9), and (10) of this section)no later than the expiration date of thepermit.This revision continues that suspension.]

§ 122.22 Signatories to permit applicationsand reports (applicable to State programs,see § 123.25).

(a) Applications. All permitapplications shall be signed as follows:

(1) For a corporation: by a principalexecutive officer of at least the level of-vice-president;

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

(3) For a municipality, State, Federal,or other public agency: by either aprincipal executive officer or ranking -elected official.

(b) Reports. All reports required bypermits and other information requestedby the Director shall be signed by aperson described in paragraph (a) of thissection, or by a duly authorizedrepresentative of that person. A personis a duly authorized representative onlyif:

(1) The authorization is made inwriting by a person described inparagraph (a) of this section;

(2) The authorization specifies eitheran individual or a position havingresponsibility for the overall operationof the regulated facility or activity, suchas the position of plant manager,operator of a well or a well field,superintendent, or position of equivalentresponsibility. (A duly authorizedrepresentative may thus be either anamed individual or any individualoccupying a named position.) and

(3) The written authorization issubmitted to the Director.

(c) Changes to authorization. If anauthorization under paragraph (b) of thissection is no longer accurate because adifferent individual or position hasresponsibility for the overall operationof the facility, a new authorizationsatisfying the requirements of paragraph(b) of this section must be submitted tothe Director prior to or together with anyreports, information, or applications tobe signed by an authorizedrepresentative.

(d) Certification. Any person signing adocument under paragraph (a) or (b) ofthis section shall make the followingcertification:

"I certify under penalty of law that I havepersonally examined and am familiar withthe information submitted in this documentand all attachments and that, based on myinquiry of those individuals immediatelyresponsible for obtaining the information, Ibelieve that the information is true, accurate,and complete. I am aware that there aresignificant penalties for submitting falseinformation, including the possibility of fineand imprisonment."

§ 122.23 Concentrated animal feedingoperations (applicable to State NPDESprograms, see § 123.25).

(a) Permit requirement. Concentratedanimal feeding operations are pointsources subject to the NPDES permitprogram.

(b) Definitions. (1) "Animal feedingoperation" means a lot or facility (otherthan an aquatic animal productionfacility) 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, orp6st-harvest residues are not sustainedin the normal growing season over anyportion of the lot or facility.

(2) Two or more animal feedingoperations under common ownershipare considered, for the purposes of theseregulations, to be a single animalfeeding operation if they adjoin eachother or if they use a common area orsystem for thb disposal of wastes.

(3) "Concentrated animal feedingoperation" means an "animal feedingoperation" which meets the criteria inAppendix B of this Part, or which theDirector designates under paragraph'(c)of this section.

(c) Case-by-case designation ofconcentrated animal feeding operations.(1) The Director may designate anyanimal feeding operation as aconcentrated animal feeding operationupon determining that it is a significant

contributor, of pollution to the waters ofthe United States. In making thisdesignation the Director shall considerthe 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;

(iii) 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 relevant factors.(2) No animal feeding operation with

less than the numbers of animals setforth in Appendix B of this Part shall bedesignated as a concentrated animalfeeding operation unless:

(i) Pollutants are discharged intowater& of the United States through amanmade ditch, flushing system, orother similar manmade device; or

(ii) Pollutants are discharged directlyinto waters of the United States whichoriginate outside of the facility and passover, across, or through the facility orotherwise come into direct contact withthe animals confined in the operation.

(3) A permit application shall not berequired from a concentrated animalfeeding operation designated under thisparagraph until the Director hasconducted an on-site inspection of theoperation and determined that theoperation should and could be regulatedunder the permit program.

§ 122.24 Concentrated aquatic animalproduction facilities (applicable to StateNPDES programs, see § 123.25).

(a) Permit requirement. Concentratedaquatic animal production facilities, asdefined in this section, are point sourcessubject to the NPDES permit program.

(b) Defintion. "Concentrated aquaticanimal production facility" means ahatchery, fish farin, or other facilitywhich meets the criteria in Appendix Cof this Part, or which the Directordesignates under paragraph (c) of thissection.

(c) Case-by-case designation ofconcentrated aquatic animal productionfacilities. (1) The Director maydesignate any warm or cold wateraquatic animal production facility as aconcentrated aquatic animal productionfacility upon determining that it is asignificant contributor of pollution towaters of the-United States. In makingthis designation the Director shallconsider the following factors:

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(i) The location and quality of thereceiving waters of the United States;

(ii) The holding, feeding, andproduction capacities of the facility;

(iii) The quantity and nature of thepollutants reaching waters of the UnitedStates; and

(iv) Other relevant factors.(2) A permit application shall not be

required from a concentrated aquaticanimal production facility designatedunder this paragraph until the Directorhas conducted on-site inspection of thefacility and has determined that thefacility should and could be regulatedunder the permit program.

§ 122.25 Aquaculture projects (applicableto State NPDES programs, see § 123.25).

(a) Permit requirement. Dischargesinto aquaculture projects, as defined inthis section, are subject to the NPDESpermit program through section 318 ofCWA, and in accordance with 40 CFRPart 125, Subpart B.

(b) Definitions. (1) "Aquacultureproject" means a defined managedwater area which uses discharges ofpollutants into that designated area forthe maintenance or production of'harvestable freshwater, estuarine, ormarine plants or animals.

(2) "Designated project area" meansthe portions of the waters of the UnitedStates within which the permittee orpermit applicant plans to confine thecultivated species, using a method orplan or operation (including, but notlimited to, physical confinement) which,on the basis of reliable scientificevidence, is expected to ensure thatspecific individual organisms comprisingan aquaculture crop will enjoy increasedgrowth attributable to the discharge ofpollutants, and be harvested within adefined geographic area.

§ 122.26 Separate storm sewers(applicable to State NPDES programs, see§ 123.25).

(a) Permit requirement. Separatestorm sewers, as defined in this sectionare point sources subject to the NPDESpermit program. Separate, storm sewersmay be permitted either individually orunder a general permit (See § 122.28).An NPDES permit for discharges intowaters of the United States from aseparate storm sewer covers allconvenyances which are a part of thatseparate storm sewer system, eventhough there may be several owners oroperators of these conveyances.However, discharges into separatestorm sewers from point sources whichare not part of the separate storm sewersystems may also require a permit.

(b) Definition. (1) "Separate stormsewer" means a conveyance or system

of conveyances (including pipes,conduits, ditches, and channels)primarily used for collecting andconveying storm water runoff and whichis either:

(i) Located in an urbanized area asdesignated by the Bureau of the Censusaccording to the criteria in 39 FR 15202(May 1, 1974); or

(ii) Not located in an urbanized areabut designated under paragraph (c) ofthis section.

(2) Except as provided in paragraph(b)(3) of this section, a conveyance orsystem of conveyances operatedprimarily for the purpose of collectingand conveying storm water runoff whichis not located in an urbanized area andhas not been designated by the Directorunder paragraph (c) of this section is notconsidered a point source and is notsubject to the provisions of this section.

(3) Conveyances which dischargeprocess wastewater or storm waterrunoff contaminated by contact withwastes, raw materials, or pollutant-contaminated soil, from lands orfacilities used for industrial orcommercial activities, into waters of theUnited States or into separate stormsewbrs are point sources that mustobtain NPDES permits but are notseparate storm sewers.

(4) Whether a system of conveyancesis or is not a separate storm sewer forpurposes of this section shall have nobearing on whether the system iseligible for funding under Title II ofCWA; see 40 CFR 35.925-21.

(c) Case-by-case designation ofseparate storm sewers. 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 sources 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) The Director determines that astorm sewer is a significant 6ontributorof pollution to the waters of the UnitedStates. In making this determination theDirector shall consider the followingfactors:

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

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

pollutants reaching waters of the UnitedStates; and

(iv) Other relevant factors.

§ 122.27 Silvicultural activities (applicableto State NPDES programs, see § 123.25).

(a) Permit requirement. Silviculturalpoint sources, as defined in this section,as point sources subject to the NPDESpermit program.

(b) Definitions. (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. The term does not include non-point source silvicultural activities suchas nursery operations, site preparation,reforestation and subsequent culturaltreatment, thinning, prescribed burning,pest and fire control, harvestingoperations, surface drainage, or roadconstruction and maintenance fromwhich there is natural runoff. However,some of these activities (such as streamcrossing for roads) may involve pointsource discharges of dredged or fillmaterial which may require a CWAsection 404 permit (See 33 CFR 209.120and Part 233).

(2) "Rock crushing and gravel washingfacilities" means facilities whichprocess crushed and broken stone,gravel, and riprap (See 40 CFR Part 436,Subpart B, including the effluentlimitations guidelines).

(3) "Log sorting and log storagefacilities" means facilities whosedischarges result from the holding of*unprocessed wood, for example, logs orroundwood with bark or after removalof bark held in self-contained bodies ofwater (mill ponds or log ponds) or storedon land where water is appliedintentionally on the logs (wet decking).(See 40 CFR Part 429, Subpart I,including the effluent limitationsguidelines).§ 122.28 General permits (applicable toState NPDES programs, see § 123.25).

(a) Coverage. The Director may issuea general permit in accordance with thefollowing:

(1) Area. The general permit shall bewritten to cover a category of dischargesdescribed in the permit under paragraph(a)(2) of this section, except thosecovered by individual permits, within ageographic area. The area shallcorrespond to existing geographic orpolitical boundaries, such as:

(i) Designated planning areas undersections 208 and 303 of CWA;

(ii) Sewer districts or sewerauthorities;

(iii) City, county, or State politicalboundaries;

(iv) State highway systems;

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(v) Standard metropolitan statisticalareas as defined by the Office ofManagement and Budget;

(vi) Urbanized areas as designated bythe Bureau of the Census according tocriteria in 30 FR .15202 (May 1, 1974); or

(vii) Any other appropriate division orcombination of boundaries.

(2) Sources. The general permit shallbe written to regulate, within the areadescribed in paragraph (a)(1) of thissection, either:

(i) Separate storm sewers; or(ii) A category of minor point sources

other than separate storm sewers if thesources all:

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

(B) Discharge the same types ofwastes;

(C) Require the same effluentlimitations or operating conditions;

(D) Require the same or similarmonitoring; and

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

(b) Administration. (1) In general.General permits may be issued,.modified, revoked and reissued, orterminated in accordance withapplicable requirements of Part 124 orcorresponding State regulations. Specialprocedures for issuance are found at§ 123.44 for States and § 124.58 for EPA.

(2) Requiring an individual permit. (i)The Director may require any personauthorized by a general permit to applyfor and obtain an individual NPDESpermit. Any interested person maypetition the Director to take actionunder this paragraph. Cases where anindividual NPDES permit 'may berequired include the following:

( (A) The discharge(s) is a significantcontributor of pollution as determinedby the factors set forth at § 122.26(c)(2);

(B) The discharger is-not incompliance with the conditions of thegeneral NPDES permit;

(C) A change has occurred in theavailability of demonstrated technologyor practices for the control or abatementof pollutants applicable to the pointsource;

(D) Effluent limitation guidelines arepromulgated for point sources coveredby the general NPDES permit;

(E) A Water Quality Managementplan containing requirements applicableto such point sources is approved; or

(F) The requirements of paragraph (a)of this section are not met.

(ii) For EPA issued general permitsonly, the Regional Administrator may

, require any owner or operatorauthorized by a general permit to applyfor an individual NPDES permit as

provided in paragraph (b)(2)(i) of thissection, only if the owner or operatorhas been notified in writing that apermit application is required. Thisnotice shall include a brief statement ofthe reasons for this decision, anapplication form, a statement setting atime for the owner or operator to file theapplication, and a statement that on theeffective date of the individual NPDESpermit the general permit as it applies tothe individual permittee shallautomatically terminate. The Directormay grant additional time upon requestof the applicant.

(iii) Any owner or operator authorizedby a general permit may request to beexcluded from the coverage of thegeneral permit by applying for anindividual permit. The owner oroperator shall submit an applicationunder § 122.21, with reasons supportingthe request, to the Director no later than90 days after the publication by EPA ofthe general permit in the FederalRegister or the publication by a State inaccordance with applicable State law.The request shall be processed under,Part 124 or applicable State procedures.The request shall be granted by issuingof any individual permit if the reasonscited by the owner or operator areadequate to support the request.

(iv) When an individual NPDESpermit is issued to an owner or operatorotherwise subject to a general NPDESpermit, the applicability of the generalpermit to the individual NPDESpermittee is automatically terminated onthe effective date of the individualpermit.

(v) A source excluded from a generalpermit solely because it already has anindividual permit may request that theindividual permit be revoked, and that itbe covered by the general permit. Uponrevocation of the individual permit, thegeneral permit shall apply to the source.

§ 122.29 New sources and newdischargers.

(a) Definitions.(1) "New source" and "new

discharger" are defined in § 122.2. [SeeNote 2.]

(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" is defined in § 122.2;(5) "Facilities or equipment" means

buildings, structures, process orproduction equipment or machinerywhich form a permanent part of the newsource and which will be used in itsoperation, if these facilities or

equipment are of such value as torepresent a substantial commitment toconstruct. It excludes facilities orequipment used in connection withfeasibility, engineering, and designstudies regarding the source or waterpollution treatment for the source.

(b) Criteria for new sourcedetermination. (1) The followingconstruction activities result in a newsource:

(i) Construction of a source on a siteat which no other source is located, or

(ii) Construction on a site at whichanother source is located of a building,structure, facility; or installation fromwhich there is or may be a discharge ofpollutants if:

(A) the process or productionequipment that causes the discharge ofpollutants from the existing source istotally replaced by this construction, or

(B) the construction results in achange in the nature or quantity ofpollutants discharged.

(2) Construction on a site at which anexisting source is located results in amodification subject to § 122.15 ratherthan a new source if the constructiondoes not create a new building,structure, facility, or installation fromwhich there is or may be a discharge ofpollutants but otherwise alters, replaces,or adds to existing process orproduction equipment.

(3) Construdtion of a new source asdefined as § 122.3 has commenced if theowner or operator has: (i) Begun, orcaused to begin as part a continuous on-site construction program:

(A) Any placement, assembly, orinstallation of facilities or equipment; or

(B) Significant site preparation work-including clearing, excavation, orremoval of existing buildings, structures,of 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 on its operation within areasonable time. Options to purchase orcontracts which can be terminated ormodified without substantial loss, andcontracts for feasibility, engineering,and design studies do not constitute acontractual obligation under theparagraph. [See Note 1 of this section.]

(c) Requirement for an EnvironmentalImpact Statement. (1) The issuance of anNPDES permit to 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. and is subject to the

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environmental review provisions ofNEPA as set out in 40 CFR Part 6,Subpart F. EPA will determine whetheran Environmental Impact Statement(EIS) is required under § 122.21(k)(special provisions for applications fromnew sources) and 40 CFR Part 6, SubpartF;

(ii) By an NPDES approved State isnot a Federal action and therefore doesnot require EPA to conduct anenvironmental review.

(2) An EIS prepared under thisparagraph shall include arecommendation either to issue or denythe permit.

(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, if any, whichthe permittee should take to prevent orminimize any adverse environmentalimpacts;

(3) The Regional Administrator shallissue, condition, or deny the new sourceNPDES permit following a completeevaluation of any significant beneficialand adverse environmental impacts anda review of the recommendationscontained in the EIS or finding of nosignificant impact.

(4)(i) No on-site construction of a newsource for which an EIS is required shallcommence before final Agency action inissuing a final permit incorporatingappropriate EIS-related requirements, orbefore execution by the applicant of alegally binding written agreement whichrequires compliance with all suchrequirements, unless such constructionis determined by the RegionalAdministrator not to cause significant orirreversible adverse environmentalimpact. The provisions of any agreemententered into under this paragraph shallbe incorporated as coditions of theNPDES permit when it is issued.

(ii) No on-site construction of a newsource for which an EIS is not requiredshall commence until 30 days afterissuance of a finding of no significantimpact, unless the construction isdetermined by the RegionalAdministrator not to cause significant orirreversible adverse environmentalimpacts.

(5) The permit applicant must notifythe Regional Administrator of any on-site construction which begins beforethe times specified in paragrah (c)(4) ofthis section. If on-site constructionbegins in violation of this paragraph, theRegional Administrator shall advise theowner or operator that it is proceeding

with construction at its own risk, andthat such construction activitiesconstitute grounds for denial of a permit.The Regional Administrator may seek acourt order to enjoin construction inviolation of this paragraph.

(d) Effect of compliance with newsource performance standards. (Theprovisions of this paragraph do notapply to existing sources which modifytheir pollution control facilities orconstruct new pollution control facilitiesand achieve performance standards, butwhich are neither new sources or newdischargers or otherwise do not meet therequirements of this paragraph.)

(1) Except as provided in paragraph(d)(2) of this section, any newdischarger, the construction of whichcommenced after October 18, 1972, ornew source which meets the applicablepromulgated new source performancestandards before the commencement ofdischarge, may not be subject to anymore stringent new source performancestandards or to any more stringenttechnology-based standards undersection 301(b)(2) of CWA for the soonestending of the following periods:

(i) Ten years from the date thatconstruction is completed;

(ii) Ten years from the date the sourcebegins to discharge process or othernonconstruction related wastewater; or

(iii) The period of depreciation oramortization of the facility for thepurposes of section 167 or 169 (or both)of the Internal Revenue Code of 1954.

(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; for example, conditions based ionwater quality standards, or toxiceffluent standards or prohibitions under-section 307(a) of CWA; or Z

(ii) Additional permit conditions inaccordance with § 125.3 controllingtoxic pollutants or hazardoussubstances which are not controlled bynew source performance standards. Thisincludes permit conditions controllingpollutants other than those identified astoxic pollutants or hazardoussubstances when control of thesepollutants has been specificallyidentified as the method to control thetoxic pollutants or hazardoussubstances.

(3) When an NPDES permit issued to asource with a "protection period" underparagraph (d)(1) of this section willexpire on or after the expiration of theprotection period, that permit shallrequire the owner or operator of thesource to comply with the requirementsof section 301 and any other then

applicable requirements of CWAimmediately upon the expiration of theprotection period. No additional periodfor achieving compliance with theserequirements may be allowed exceptwhen necessary to achieve compliancewith requirements promulgated lessthan 3 years before the expiration of theprotection period.

(4) The owner or operator of a newsource, a new discharger whichcommenced discharge after August 13,1979, or a recommencing dischargershall install and have in operatingcondition, and shall "start-up" allpollution control equipment required tomeet the conditions of its permits beforebeginning to discharge. Within theshortest feasible time (not to exceed 90days), the owner or operator must meetall permit conditions.

(5) After the effective date of newsource performance standards, it shallbe unlawful for any owner or operatorof any new source to operate the sourcein violation of those standardsapplicable to the source.

[Note 1.-§ 122.29, paragraphs (b)(1) and(2) were suspended until further notice at 45FR 59318, Sept. 9, 1980.1

[Note 2.-At 45 FR 68391, Oct. 15, 1980,effective Oct. 15, 1980, the EnvironmentalProtection Agency suspended until furthernotice the NPDES "new discharger"definition as it applies to offshore mobiledrilling rigs operating in offshore areasadjacent to the Gulf Coast, Atlantic Coast,California and Alaska, except for the FlowerGarden area in the Gulf of Mexico and otherareas identified as environmentally sensitiveby the Bureau of Land Management.]

Subpart C-Permit Conditions

§ 122.41 Conditions applicable to allpermits (applicable to State programs, see§ 123.25).

The following conditions apply to allNPDES permits. Additional conditionsapplicable to NPDES permits are in§ 122.42. All conditions applicable toNPDES permits shall be incorporatedinto the permits either expressly or byreference. If incorporated by reference,a specific citation to these regulations(or the corresponding approved Stateregulations) must be given in. the permit.

(a) Duty to comply. The permitteemust comply with all conditions of thispermit. Any permit noncomplianceconstitutes a violation of the CleanWater Act and is grounds forenforcement action; for permittermination, revocation and reissuance,or modification; or denial of a permitrenewal application.

(1) The permittee shall comply witheffluent standards or prohibitionsestablished under section 307(a) of the

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Clean Water Act for toxic pollutantswithin the time provided in theregulations that establish thesestandards or prohibitions, even if thepermit has not yet been modified toincorporate the requirement.

(2) The Clean Water Act provides thatany person who violates a permitcondition implementing sections 301,302, 306, 307, 308, 318 or 405 of the CleanWater Act is subject to a civil penaltynot to exceed $100,000 per day of suchviolation. Any person who willfully ornegligently violates permit conditionsimplementing sections 301, 302, 306, 307or 308 of the Act is subject to a fine ofnot less than $2,500 nor more than$25,000 per day of violation, or byimprisonment for not more than 1 year,or both.

(b) Duty to reapply. If the permitteewishes to continue an activity regulatedby this permit after the expiration dateof this permit, the permittee must applyfor and obtain a new permit.

(c) Duty to halt or reduce activity. Itshall not be a defense for a permittee inan enforcement action that it wouldhave been necessary to halt or reducethe permitted activity in order tomaintain compliance with the conditionsof this permit. Upon reduction, loss, orfailure of the treatment facility, thepermittee shall, to the extent necessaryto maintain compliance with its permit,control production or all discharges orboth until the facility is restored or analternative method of treatment isprovided. This requirement applies, forexample, when the primary source ofpower of the treatment facility fails or isreduced or lost.I (d) Duty to mitigate. The permittee

shall take all reasonable steps tominimize or correct any adverse impacton the environment resulting fromnoncompliance with this permit.

(e) Proper operation and maintenance.The permittee shall at all times properlyoperate and maintain all facilities andsystems of treatment and control (andrelated appurtenances) which areinstalled or used by the permittee toachieve compliance with the conditionsof this permit. Proper operation andmaintenance includes effectiveperformance, adequate funding,adequate operator staffing and training,and adequate laboratory and processcontrols, including appropriate qualityassurance procedures. This provisionrequires the operation of back-up orauxiliary facilities or similar systemsonly when necesssary to achievecompliance with the conditions of thepermit.

( ) Permit actions. This permit may bemodified, revoked and reissued, orterminated for cause. The filing of a

request by the permittee for a permitmodification, revocation and reissuance,or termination, or a notification ofplanned changes or anticipatednoncompliance does not stay any permitcondition.

(g) Property rights. This permit doesnot convey any property rights of anysort, or any exclusive privilege.

(h) Duty to provide information. Thepermittee shall furnish to the Director,within a reasonable time, anyinformation which the Director mayrequest to determine whether causeexists for modifying, revoking andreissuing, or terminating this permit orto determine compliance with thispermit. The permittee, shall also furnishto the Director upon request, copies ofrecords required to be kept by thispermit.

(i) Inspection and entry.-The permitteeshall allow the Director, or anauthorized representative, upon thepresentation of credentials and otherdocuments as may be required by'law,to:

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

(2) Have access to and copy, atreasonable times, any records that mustbe kept under the conditions of thispermit;

(3) Inspect at reasonable times anyfacilities, equipment (includingmonitoring and control equipment),practices, or operations regulated orrequired under this permit; and

(4) Sample or monitor at reasonabletimes, for the purposes of assuringpermit compliance or as otherwiseauthorized by the Clean Water Act, anysubstances or parameters at anylocation.

U) Monitoring and records. (1)Samples and measurements taken forthe purpose of monitoring shall berepresentative of the monitored activity.

(2) The permittee shall retain recordsof all monitoring information, includingall calibration and maintenance recordsand all original strip chart recordings forcontinuous monitoring instrumentation,copies of all reports required by thispermit, and records of all data used tocomplete the application for this permit,for a period of at least 3 years from thedate of the sample, measurement, reportor application. This period may beextended by request of the Director atany time.

(3) Records of monitoring informationshall include:

(i) The date, exact place, and time ofsampling or measurements;

(ii) The individual(s) who performedthe sampling or measurements;

(iii) The date(s) analyses wereperformed;

(iv) The individual(s) who performedthe analyses;

(v) The analytical techniques ormethods used; and

(vi) The results of such analyses.(4) Monitoring must be conducted

according to test procedures approvedunder 40 CFR Part 136, unless other testprocedures have been specified in thispermit.

(5) The Clean Water Act provides thatany person who falsifies, tampers with,or knowingly renders inaccurate anymonitoring device or method required tobe maintained under this permit 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.

(k) Signatory requirement. (1) Allapplications, reports, or informationsubmitted to the Director shall be signedand certified. .(See § 122.22)

(2) The CWA provides that anyperson who knowingly makes any falsestatement, representation, orcertification in any record or otherdocument submitted or required to bemaintained under this permit, includingmonitoring reports or reports ofcompliance or non-compliance 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.

(1) Reporting requirements.. (1)Planned changes. The permittee shallgive notice to the Director as soon aspossible of any planned physicalalterations or additions to the permittedfacility.

(2) Anticipated noncompliance. Thepermittee shall give advance notice tothe Director of any planned changes inthe permitted facility or activity whichmay result in noncompliance withpermit requirements.

(3) Transfers. This permit is nottransferable to any person except afternotice to the Director. The Director mayrequire modification or revocation andreissuance of the permit to change thename of the permittee and incorporatesuch other requirements as may benecessary under the Clean Water Act.(See § 122.61; in some cases,modification or revocation andreissuance is mandatory.)

(4) Monitoring reports. Monitoringresults shall be reported at the intervalsspecified elsewhere in this permit.

(i) Monitoring results must be reportedon a Discharge Monitoring Report(DMR).

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(ii) If the permittee monitors anypollutant more frequently than requiredby the permit, using test pro'eduresapproved under 40 CFR 136 or asspecified in the permit, the results of thismonitoring shall be included in thecalculation and reporting of the datasubmitted in the DMR.

(iii) Calculations Tor all limitationswhich require averaging ofmeasurements shall utilize an arithmeticmean unless otherwise specified by theDirector in the permit.

(5). Compliance schedules. Reports ofcompliance or noncompliance with, orany progress reports on, interim andfinal requirements contained in anycompliance schedule of this permit shall

-be submitted no later than 14 daysfollowing each schedule date.

(6) Twenty-four hour reporting. (i) Thepermittee shall report anynoncompliance which may endangerhealth or the environment. Anyinformation shall be provided orallywithin 24 hours from the time thepermittee becames aware of thecircumstances. A written submissionshall also be provided within 5 days ofthe time the permittee becomes aware ofthe circumstances. The writtensubmission shall contain a descriptionof the noncompliance and its cause; theperiod of noncompliance, includingexact dates and times, and-if thenoncompliance has not been corrected,the anticipated time it is expected tocontinue; and steps taken or planned toreduce, eliminate, and preventreoccurrence of the noncompliance.

(ii) The following shall be included asinformation which must be reportedwithin 24 hours under this paragraph.

(A) Any unanticipated bypass whichexceeds any effluent limitation in thepermit. (See § 122.41(g).

(B) Any upset which exceeds anyeffluent limitation in the permit.

(C) Violation of a maximum dailydischarge limitation for any of thepollutants listed by the Director in thepermit to be reported within 24 hours.(See § 122.44(g).)

(iii) The Director may waive thewritten report on b case-by-case basisfor reports under paragraph (1)(6)(ii) ofthis section if the oral report has beenreceived within 24 hours.

(7) Other noncompliance. Thepermittee shall report all instances ofnoncompliance not reported underparagraphs (1) (4), (5), and (6) of thissection, at the time monitoring reportsare sumbitted. The reports shall containthe information listed in paragraph (1)(6)of this section.

(m) Bypass. (1) Definitions. (i)"Bypass" means the intentional

diversion of waste streams from anyportion of a treatment facility.

(ii) "Severe property damage" meanssubstantial physical damage to property,damage to the treatment facilities whichcauses 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) Bypass not exceeding limitations.The permittee may allow any bypass tooccur which does not cause effluentlimitations to be exceeded, but only if italso is for essential maintenance toassure efficient operation. Thesebypasses are not subject to theprovisions of paragraphs (m)(3) and(m)(4) of this section.

(3) Notice. (i) Anticipated bypass. Ifthe permittee knows in advance of theneed for a bypass, it shall submit priornotice, if possible at least ten daysbefore the date of the bypass.

(ii) Unanticipated bypass. Thepermittee shall submit notice of'anunanticipated bypass as required inparagraph (1)(6) of this section (24-hournotice).

(4) Prohibition of bypass. (i} Bypass isprohibited, and the Director may takeenforcement action against a permitteefor bypass, unless:

(A) Bypass was unavoidable toprevent loss of life, personal injury, orsevere property damage;

(B) There were no feasiblealternatives to the bypass, such as theuse of auxiliary treatment facilities,retention of untreated wastes, ormaintenance during normal periods ofequipment downtime. This condition isnot satisfied if the permittee could haveinstalled adequate backup equipment toprevent a bypass which occurred duringnormal periods of equipment downtimeor preventive maintenance; and

(C) The permittee submitted noticesas required under paragraph (m)(3) ofthis section.

(ii) The Director may approve ananticipated bypass, after considering itsadverse effects, if the Directordetermines that it will meet the threeconditions listed above in paragraph(m)(4)(i) of this section.

(n) Upset. (1) Definition. "Upset"means an exceptional incident in whichthere is unintentional and temporarynoncompliance 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 preventive

maintenance, or careless or improperoperation.

(2) Effect of an upset. An upsetconstitutes an affirmative defense to anaction brought for noncompliance withsuch technology based permit effluentlimitations if the requirements ofparagraph (n)(3) of this section are met.No determination made duringadministrative review of claims thatnoncompliance was caused by upset,and before an action for noncompliance,is final administrative action subject tojudicial review.

(3) Conditions necessary for ademonstration of upset. A permitteewho wishes to establish the affirmativedefense 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 properly operated; and

(iii) The permittee submitted notice ofthe upset as required in paragraph(1)(6)(ii)(B) of this section (24 hournotice).

(iv) The permittee complied with anyremedial measures required underparagraph (d) of this section.

(4) Burden of proof. In anyenforcement proceeding the permitteeseeking to establish the occurrence of anupset has the burden of proof.

§ 122.42 Additional conditions applicableto specified categories of NPDES permits(applicable to State NPDES programs, see§ 123.25).

The following conditions, in additionto those set forth in § 122.41, apply to allNPDES permits within the categoriesspecified below:

(a) Existing manufacturing,commercial, mining, and silvicultural-dischargers. In addition to the reportingrequirements under § 122.41(1), allexisting manufacturing, commercial,mining, and silvicultural dischargersmust notify the Director as soon as theyknow or have reason to believe:

(1) That any activity has occurred orwill occur which would result in thedischarge of any toxic pollutant which isnot limited in the permit, if thatdischarge will exceed the highest of thefollowing "notification levels":

(i) One hundred micrograms per liter(100 g/l);

(ii) Two hundred micrograms per liter(200 Jg/1) for acrolein and acrylonitrile;five hundred micrograms per liter (500jig/l) for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol; and onemilligram per liter (1 mg/I) for antimony;

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(iii) Five (5) times the maximumconcentration value reported for thatpollutant in the permit application inaccordance with § 122.21 (g)[7) or (g)(10); or

(iv) The level established by theDirector in accordance with-§ 122.44(f).

(2) That they have begun or expect tobegin to use or manufacture as anintermediate or final product orbyproduct any toxic pollutant whichwas not reported in the permitapplication under § 122.21(g)(9).

(b) Publicly owned treatment works.All POTWs must provide adequatenotice to the Director of the following:

(1) Any new introduction of pollutantsinto the POTW from an indirectdischarger which would be subject tosections 301 or 306 of CWA if it weredirectly discharging those pollutants;and

(2) 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.

(3) For purposes of this paragraph,adequate notice shall includeinformation on (i) the qualityandquantity of effluent introduced into thePOTW, and (i) any anticipated impact ofthe change on the quantity'or quality ofeffluent to be discharged from thePOTW.

§ 122.43 Establishing permit conditions(applicable to State programs, see§ 123.25).

(a) In addition to conditions requiredin all permits (§§ 122.41 and 122.42), theDirector shall establish conditions, asrequired on a case-by-case basis, toprovide for and assure compliance withall applicable requirements of CWA andregulations. These ,shall includeconditions under § § 122.46 (duration ofpermits), 122.47(a) (schedules ofcompliance), 122.48 (monitoring), and forEPA permits only 122.47(b) (alternatesschedule of compliance) and 122.49(considerations under Federal law).

(b)(1) For a State issued permit, anapplicable requirement is a Statestatutory or regulatory requirementwhich takes effect prior to finaladministrative disposition of a permit.For a permit issued by EPA, anapplicable requirement is a statutory orregulatory requirement (including anyinterim final regulation) which takeseffect prior to the issuance of the permit(except as provided in § 124.86(c) forNPDES permits being processed underSubparts E or F of Part 124). Section124.14 (reopening of comment period)provides a means for reopening EPApermit proceedings at the discretion ofthe Director where new requirements

become effective during the permittingprocess and are of sufficient magnitudeto make additonal proceedingsdesirable. For State and EPAadministered programs, an applicablerequirement is also any requirementwhich takes effect prior to themodification or revocation andreissuance of a permit, to the extentallowed in § 122.62.

(2) New or reissued permits, and tothe extent allowed under § 122.62modified or revoked and reissuedpermits, shall incorporate each of theapplicable requirements.referenced in§ § 122.44 and 122.45.

(c) Incorporation. All permitconditions shall be incorporated eitherexpressly or by reference. Ifincorporated by reference, a specificcitation to the applicable regulations orrequirements must be given in thepermit.

§ 122.44 Establishing limitations,standards, and other permit conditions(applicable to State NPDES programs, see§ 123.25).

In addition to the conditionsestablished under § 122.43(a), eachNPDES permit shall include conditionsmeeting the following requirementswhen applicable.

(a) Technology-based effluentlimitations and standards based oneffluent limitations and standardspromulgated under section 301 of CWAor new source performance standardspromulgated under section 306 of CWA,on case-by-case effluent limitationsdetermined under section 402(a)(1) ofCWA, or on a combination of the two, inaccordance with § 125.3. For newsources or new dischargers, thesetechnology based limitations andstandards are subject to the provisionsof § 122.29(d) (protection period).

(b) Other effluent limitations andstandards under sections 301, 302, 303,307, 318, and 405 of CWA. If anyapplicable toxic effluent standard orprohibition (including any schedule ofcompliance specified in such effluentstandard or prohibition) is promulgatedunder section 307(a) of CWA for a toxicpollutant and that standard orprohibition is more stringent than anylimitation on the pollutant in the permit,the Director shall institute proceedingsunder these regulations to modify orrevoke and reissue the permit toconform to the toxic effluent standard orprohibition. See also § 122.41(a).

(c) Reopener clause: for anydischarger within a primary industrycategory (see Appendix A),requirements under section 307(a)(2) ofCWA as follows:

(1) On or before June 30, 1981: (i) Ifapplicable standards or limitations havenot yet been promulgated, the permitshall include a condition stating that, ifan applicable standard or limitation ispromulgated under sections 301(b)(2) (C)and (D), 304(b)(2), and 307(a)(2) and thateffluent standard or limitation is morestringent than any effluent limitation inthe permit or controls a pollutant notlimited in the permit, the permit shall bepromptly modified or revoked andreissued to conform to that effluentstandard or limitation.

(ii) If applicable standards orlimitations have been promulgated orapproved, the permit shall include thosestandards or limitations. (If EPAapproves existing effluent limitations orproves existing effluent limitations ordecides not to develop new effluentlimitations, it will publish a notice in theFederal Register that the limitations are"approved" for the purpose of thisregulation.)

(2) After June 30. 1981, any permitissued shall include effluent limitationsand a compliance schedule to meet therequirements of sections 301(b)(2) (A),(C), (D), (E) and (F) of CWA, whether ornot applicable effluent limitationsguidelines have been promulgated orapproved. These permits need notincorporate the clause required byparagraph (c)(1) of this section.

(3) The Director shall promptly modifyor revoke and reissue any permitcontaining the clause required underparagraph (c)(1) of this section toincorporate an applicable effluentstandard or limitation under sections301(b)(2) (C) and (D), 304(b)(2), and307(a)(2) which is promulgated orapproved after the permit is issued ifthat effluent standard or limitation ismore stringent than any effluentlimitation in the permit, or controls apollutant not limited in the permit.

(d) Water quality standards and Staterequirements: any requirements inaddition to or more stringent thanpromulgated effluent limitationsguidelines or standards under sections301, 304, 306, 307, 318, and 405 of CWAnecessary 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 which meet the requirements of§ 124.53 when EPA is the permit issuingauthority; however, if a Statecertification is stayed by a court ofcompetent jurisdiction or appropriate

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State board or agency, EPA shall includeconditions in the permit which may benecessary to meet EPA's obligationunder section 301(b)(1)(C) of CWA;

(4) Conform to applicable waterquality requirements under section401(a)(2) of CWA when the dischargeaffects a State other than the certifyingState;

(5) Incorporate any more stringentlimitations, treatment standards, orschedule of compliance requirementsestablished under Federal or State lawor regulations in accordance withsection 301(b)(1)(C) of CWA;

(6) Ensure consistency with therequirements of a Water QualityManagement plan approved by EPAunder section 208(b) of CWA;

(7) Incorporate section 403(c) criteriaunder Part 125, Subpart M, for oceandischarges;

(8) Incorporate alternative effluentlimitations or standards wherewarranted by "fundamentally differentfactors," under 40 CFR Part 125, SubpartD;

(9) Incorporate any otherrequirements, conditions, or limitationsinto a new source permit under theNational Environmental Policy Act 42U.S.C. 4321 et seq. and section 511 ofCWA, when EPA is the permit issuingauthority (see § 122.29).

(e) Toxic pollutants: limitationsestablished under paragraphs (a), (b), or(d) of this section, to control pollutantsmeeting the criteria listed in paragraph(e)(1) of this section. Limitations will beestablished in accordance withparagraph (e)[2) of this section. Anexplanation of the development of theselimitations shall be included in the factshee-t under § 124.56(e)(2).

(1) Limitations must control all toxicpollutants which:

(i) The Director determines (based oninformation reported in a permitapplication under § 122.21(g)(7) or (10)or in a notification under § 122.42(a)(1)or on other information) are or may bedischarged at a level greater than thelevel which can be achieved by thetechnology-based treatmentrequirements appropriate to thepermittee under § 125.3(c); or

(ii) The discharger does or may use ormanufacture as an intermediate or finalproduct or byproduct.

(2) The requirement that thelimitations control the pollutantsmeeting 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 judgment of the Director,will provide treatment of the pollutantsunder paragraph (e)(1) of this section tothe levels required by § 125.3(c).

(f) Notification level: a "notificationlevel" which exceeds the notificationlevel of § 122.42(a)(1)(i), (ii), or (iii), upona petition from the permittee or on theDirector's initiative. This newnotification level may not exceed thelevel which can be achieved by thetechnology-based treatmentrequirements appropriate to thepermittee under § 125.3(c)

(g) Twenty-four hour reporting:Pollutants for which the permittee mustreport violations of maximum dailydischarge limitations under§ 122.41(1)(6)[ii)(C)(24-hour reporting)shall be listed in the permit. This listshall include any toxic pollutant orhazardous substance, or any pollutantspecifically identified as the method tocontrol a toxic pollutant or hazardoussubstance.

(h) Durations for permits, as set forthin § 122.46.

(i) Monitoring requirements: Inaddition to § 122.48, the followingmonitoring requirements:

(1) To assure compliance with permitlimitations, requirements to monitor:

(i) The mass (or other measurementspecificed in the permit) for eachpollutant limited in the permit,

(ii) The volume of effluent dischargedfrom each outfall;

(iii) Other measurements asappropriate; including pollutants ininternal waste streams under § 122.45(i),pollutants in intake water for netlimitations under § 122.45(f); frequency,rate of discharge, etc., for noncontinuousdischarges under § 122.45(e); andpollutants subject to notificationrequirements under § 122.42(a).

(iv) According to test proceduresapproved under 40 CFR Part 136 for theanalyses of pollutants having approvedmethods under that Part, and accordingto a test procedure specified in thepermit for pollutants with no approvedmethods.

(2) Requirements to report monitoringresults with a frequency dependent onthe nature and effect of the discharge,but in no case less than once a year.

(j) Pretreatment program for POTWs:requirements for POTWs to:

(1) Identify, in terms of character andvolume of pollutants, any significantindirect dischargers into the POTWsubject to pretreatment standards undersection 307(b) of CWA and 40 CFR Part403.

(2) Submit 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. The program shall require all

indirect dischargers to the POTW tocomply with the reporting requirementsof 40 CFR Part 403.

(k) Best management practices tocontrol or abate the discharge ofpollutants when:

(1) Authorized under section 304(e) ofCWA for the control of toxic pollutantsand hazardous substances fromancillary industrial activities;

(2) Numeric effluent limitations areinfeasible, or

(3) The practices are reasonablynecessary to achieve effluent limitationsand standards or to carry out thepurposes and intent of CWA.

(1) Reissued permits. (1) Except asprovided in paragraph (1)(2) of thissection when 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 J 122.62).

(2) When 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:

(i) 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 renewed orreissued permit may reflect the level ofpollutant control actually achieved (butshall not be less stringent than requiredby the subsequently promulgatedeffluent limitation guidelines);

(ii) In the case of an approved State,State law prohibits permit conditionsmore stringent than an applicableeffluent limitation guideline;

(iii) The subsequently promulgatedeffluent guidelines are based on bestconventional pollutant controltechnology (section 301(b)(2)(E) ofCWA);

(iv) The circumstances on which theprevious permit was based havematerially and substantially changedsince the time the permit was issued andwould constitute'cause for permitmodification or revocation andreissuance under § 122.62; or

(v) There is increased production atthe facility which results in significant

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reduction in treatment efficiency, inwhich case the permit limitations will b(adjusted to reflect any decreasedefficiency resulting from increasedproduction and raw waste loads, but inno event shall permit limitations be lessstringent than those required bysubsequently promulgated standardsand limitations.

(in) Privately owned treatment works:For a privately owned treatment works,any conditions expressly applicable toany user, 9s a limited co-permittee, thatmay be necessary in the permit issued t(the treatment works to ensurecompliance with applicablerequirements under this Part.Alternatively, the Director may issueseparate permits to the treatment worksand to its users, or may require aseparate permit application from anyuser. The Director's decision to issue apermit with no conditions applicable toany user, to impose conditions on one oimore users, to isslie separate permits, orto require separate applications, and thebasis for that decision, shall be stated inthe fact sheet for the draft permit for thetreatment works.

(n) Grants: Any conditions imposed ingrants made by the Administrator toPOWs under sections 201 and 204 ofCWA which are reasonably necessaryfor the achievement of effluentlimitations under section 301 of CWA.

[o) Sewage sludge: Requirementsunder section 405 of CWA governing thedisposal of sewage sludge from publiclyowned treatment works, in accordancewith any applicable regulations.

(p) Coast Guard: when a permit isissued to a facility that may operate atcertain times as a means oftransportation over water, a conditionthat the discharge shall comply with an3applicable regulations promulgated bythe Secretary of the department inwhich the Coast Guard is operating, thaestablish specifications for safetransportation, handling, carriage, andstorage of pollutants.

(q) Navigation: any conditions thatthe Secretary of the Army considersnecessary to ensure that navigation andanchorage will not be substantiallyimpaired, in accordance with § 124.58.

§ 122.45 Calculating NPDES permitconditions (applicable to State NPOESprograms, see § 123.25).

(a) Outfalls and discharge points. Allpermit effluent limitations, standardsand prohibitions shall be established foieach outfall or discharge point of thepermitted facility, except as-otherwiseprovided under § 122.44j{)(2) (BMPswhere'limitations are infeasible) andparagraph (i) of this section (limitationson internal waste streams).

(b) Production-based limitations. (1)In the case of POTWs, permitlimitations, standards, or prohibitionsshall be calculated based on designflow.

(2) Except in the case of POTWs, -calculation of any permit limitations,standards, or prohibitions which arebased on production (or other measureof operation) shall be based not uponthe designed production capacity butrather upon a reasonable measure ofactual production of the facility, such asthe production during the high month ofthe previous year, or the monthlyaverage for the highest of the previous 5years. For new sources or newdischargers, actual production shall beestimated using projected production.The time period of the measure ofproduction shall correspond to the timeperiod of the calculated permitlimitations; for example, monthlyproduction shall be used to calculateaverage monthly discharge limitations.

(c) Metals. All permit effluentlimitations, standards, or prohibitionsfor a metal shall be expressed in termsof the total metal (that is, the sum of thedissolved and suspended frictions ofthe metal) unless:

(1) An applicable effluent standard orlimitation has been promulgated underCWA and specifies the limitation for themetal in the dissolved or valent form; or

(2) In establishing permit limitationson a case-by-case basis under § 125.3, it

is necessary to express the limitation onthe metal in the dissolved or valent formin order to carry out the provisions ofCWAA.

(d) Continuous discharges. Forcontinuous discharges all permit effluentlimitations, standards, and prohibitions,including those necessary to achievewater quality standards, shall unlessimpracticable be 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.

(e) Non-continuous discharges.Discharges which are not continuous, asdefined in § 122.2, shall be particularlydescribed and limited, considering thefollowing factors, as appropriate:

(1) Frequency (for example, a batchdischarge shall not occur more thanonce every 3 weeks);

(2) Total mass (for example, not toexceed 100 kilograms of zinc and 200kilograms of chromium per batchdischarge);

(3) Maximum rate of discharge ofpollutants during the discharge (for

example, not to exceed 2 kilograms ofzinc per minute); and

(4) Prohibition or limitation ofspecified pollutants by mass,concentration, or other appropriatemeasure (for example, shall not containat any time more than 0.1 mg/1 zinc ormore than 250 grams (Y4 kilogram) ofzinc in any discharge).

(f) Mass limitations. (1) All pollutantslimited in permits shall have limitations,standards or prohibitionlt expressed interms of mass except:

(i) For pH, temperature, radiation, orother pollutants which cannotappropriately be expressed by mass;

(ii) When applicable standards andlimitations are expressed in terms ofother units of measurement; or

(iii) If in establishing permitlimitations on a case-by-case basisunder § 125.3, limitatiohs expressed interms of mass are infeasible because themass of the pollutant discharged cannotbe related to a measure of operation (forexample, discharges of TSS from certainmining operations), and permitconditions ensure that dilution will notbe used as a substitute for treatment.

(2) Pollutants limited in terms of massadditionally may be limited in terms ofother units of measurement, and thepermit shall require the permittee tocomply with both limitationi.

(g) Pollutants in intake water. Exceptas provided in paragraph (h) of thissection, effluent limitations imposed inpermits may not be adjusted forpollutants in the intake water.

(h) Net limitations.(1) Upon request of the discharger,

effluent limitations or standardsimposed in a permit shall be calculatedon a "net" basis; that is, adjusted toreflect credit for pollutants in thedischarger's intake water, if thedischarger demonstrates that its intakewater is drawn from the same body ofwater into which the discharge is madeand if:

(i)(A) The applicable effluqntlimitations and standards contained in40 CFR Subchapter N specificallyprovide that they shall be applied on anet basis; or

(B) The discharger demonstrates thatpollutants present in the intake waterwill not be entirely removed by thetreatment systems operated by thedischarger; and

(ii) The permit contains conditionsrequiring:

(A) The permittee to conductadditional monitoring (for example, forflow and concentration of pollutants) asnecessary to determine continuedeligibility for and compliance with anysuch adjustments; and

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(B) The permittee to notify theDirector if eligibility for an adjustmentunder this section has been altered or nolonger exists. In that case, the permitmay be modified accordingly under§ 122.62.

(2) Permit effluent limitations orstandards adjusted under this paragraphshall be calculated on the basis of theamount of pollutants present after anytreatment steps have been performed onthe intake water by or for thedischarger. Adjustments under thisparagraph shall be given only to theextent that pollutants in the intakewater which are limited in the permitare not removed by the treatmenttechnology employed by the discharger.In addition, effluent limitations orstandards may not be adjusted to theextent that the pollutants in the intakewater vary physically, chemically, orbiologically ,from the pollutants limitedin the permit. Nor may effluentlimitations or standards be adjusted tothe extent that the dischargersignificantly increases concentrations ofpollutants in the intake water, eventhough the total amount of pollutantsmight remain the same.

(i) Internal waste streams. (1) Whenpermit effluent limitations or standardsimposed at the point of discharge areimpractical or infeasible, effluentlimitations or standards for discharges.of pollutants may be imposed oninternal waste streams before mixingwith other waste streams or coolingwater streams. In those instances, themonitoring required by § 122.44(i) shallalso be applied to the internal wastestreams.

(2) Limits on internal waste streamswill be imposed only when the factsheet under § 124.56 sets forth theexceptional circumstances which makesuch limitations.necessary, such aswhen the final discharge point isinaccessible (for example, under 10meters of water), the wastes atthe pointof discharge are so diluted as to makemonitoring impracticable, or theinterferences among pollutants at thepoint pf discharge would make detectionor analysis impracticable.

(j) Disposal of pollutants into wells,into POTWs or by land application.Permit limitations and standards shallbe calculated as provided in § 122.50.§ 122.46 Duration of permits (applicable toState programs, see § 123.25).

(a) NPDES permits shall be effectivefor a fixed term not to exceed 5 years.

(b) Except as provided in § 122.5, theterm of a-permit shall riot be extendedby modification beyond the maximumduration specified in this section.

(c) The Director may issue any permitfor a duration that is less than the fullallowable term under this section.

(d) On or before June 30, 1981, anypermit issued to a discharger in aprimary industry category (seeAppendix A of this Part):

(1) Shall meet one of the followingconditions:

(i) Expire on June 30, 1981;(ii) Incorporate effluent standards and

limitations applicable to the dischargerwhich have been promulgated orapproved under sections 301(b)(2) (C)and (D), 304(b)(2), and 307(a)(2) of CWA;or

(iii) Incorporate the "reopener clause"required by § 122.44(c)(1), and effluentlimitations to meet the requirements ofsections 301(b)(2) (A), (C), (D), (E), and(F) of CWA.

(2) Shall not be written to expire afterJune 30, 1981 unless the discharger hassubmitted to the Director theinformation required by § 122.21(g)(7)(ii).

(e) After June 30, 1981, a permit maybe issued for the full term if the permitincludes effluent limitations and acompliance schedule to meet therequirements of sections 301(b)(2) (A),(C), (D), (E), and (F) of CWA, whether ornot applicable effluent limitations-guidelines have been promulgated orapproved.(f) A determination that a particular

discharger falls within a given industrialcategory for purposes of setting a permitexpiration date under paragraph (e) ofthis section is not conclusive as to thedischarger's inclusion in that industrialcategory for any other purposes, anddoes not prejudice any rights tochallenge or change that inclusion at thetime that a permit based on thatdetermination is formulated.

§ 122.47 Schedules of compliance.(a) General (applicable to State

programs, see § 123.25). The permit may,when appropriate, specify a schedule ofcompliance leading to compliance withCWA and regulations.

(1) Time for compliance. Anyschedules of compliance under thissection shall require compliance as soonas possible, but not later than theapplicable statutory deadline under theCWA.

(2) The first NPDES permit issued to anew source, a new discharger whichcommenced discharge after Augustl13,1979, or a recommencing discharger maynot contain a schedule of complianceunder this section. See also§ 122.29(d)(4).

(3) Interim dates. Except as providedin paragraph (b)(1)(ii), if a permitestablishes a schedule of compliancewhich exceeds 1 year from the date of

permit issuance, the schedule shall setforth interim requirements and the datesfor their achievement.

(i) The time between interim datesshall not exceed 1 year.

(ii) If the time necessary forcompletion of any interim requirement(such as the construction of a controlfacility) is more than I year and is notreadily 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.

[Note.-Examples of interim requirementsinclude: (a) submit a complete Step 1construction grant (for POTWs); (b) let acontract for construction of requiredfacilities; (c) commence construction ofrequired facilities; (d) complete constructionof required facilities.]

(4) Reporting. The permit shall bewritten to require that no later than 14days following each interim date andthe final date of compliance, thepermittee shall notify- the Director inwriting of its compliance ornoncompliance with the interim or finalrequirements, or submit progress reportsif paragraph (a)(1)(ii) is applicable.

(b) Alternative schedules ofcompliance. An NPDES permit applicantor permittee may cease conductingregulated activities (by terminating ofdirect discharge for NPDES sources)rather than continuing to operate andmeet permit requriements as follows:

(1) If the permittee decides to ceaseconducting regulated activities at agiven time within the term of a permitwhich has already been issued:

(i) The permit may be modified tocontain a new or additional scheduleleading to timely cessation of activities;or

(ii) The permittee shall ceaseconducting permitted activities beforenon-compliance with any interim orfinal compliance schedule requirementalready specified in the permit.

(2) If the decision to cease conductingregulated activities is made beforeissuance of a permit whose term willinclude the termination date, the permitshall contain a schedule leading totermination which will ensure timelycompliance with applicablerequirements no later than the statutorydeadline.

(3) If the permittee is undecidedwhether to cease conducting regulatedactivities, the Director may issue ormodify a permit to contain twoschedules. as follows:

(il Both schedules shall contain anidentical interim deadline requiring afinal decision on whether to cease

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Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations 7

conducting regulated activities no laterthan a date which ensures sufficienttime to comply with applicablerequirements in a timely manner if thedecision is to continue conductingregulated activities;

(ii) One schedule shall lead to timelycompliance with applicablerequirements, no later than the statutorydeadline;

(iii) The second schedule shall lead tocessation of regulated activities by adate which will ensure timelycompliance with applicablerequirements no later than the statutorydeadline.

(iv) Each permit containing twoschedules shall include a requirementthat after the permittee has made a finaldecision'under paragraph (b)(3)(i) of thissection it shall follow the scheduleleading to compliance if the decision isto continue conducting regulatedactivities, and follow the scheduleleading to termination if the decision isto cease conducting regulated activities.

(4) The applicant's or permittee'sdecision to cease conducting regulatedactivities shall be evidenced by a firmpublic -commitment satisfactory to theDirector, such as a resolution of theboard of directors of a corporation.

§ 122,48 Requirements for recording andreporting of monitoring results (applicableto State programs, see § 123.25).

All permits shall specify:(a) Requirements concerning the

proper use, maintenance, andinstallation, when appropriate, ofmonitoring equipment or methods(including biological monitoringmethods when appropriate);

(b) Required monitoring includingtype, intervals, and frequency sufficientto yield data which are representative ofthe monitored activity including, whenappropriate, continuous monitoring;

(c) Applicable reporting requirementsbased upon the impact of the regulatedactivity and as specified in § 122.44.Reporting shall be no less frequent thanspecified in the above regulations.

§ 122.49 Considerations under Federallaw.

Permits shall be issued in a mannerand shall contain conditions consistentwith requirements of applicable Federallaws. These laws may include:

(a) The Wild and Scenic Rivers Act,16 U.S.C. 1273 et seq. Section 7 of theAct prohibits the RegionalAdministrator from assisting by licenseor otherwise the construction of anywater resources project that would havea direct, adverse effect on the values forwhich a national wild and scenic riverwas established.

(b) The National HistoricPreservation Act of 1966, 16 U.S.C. 470et seq. Section 106 of the Act andimplementing regulations (36 CFR Part800) require the Regional Administrator,before issuing a license, to adoptmeasures when feasible to mitigatepotential adverse effects of the licensedactivity and properties listed or eligiblefor listing in the National Register ofHistoric Places. The Act's requirementsare to bp implemented in cooperationwith State Historic Preservation Officersand upon notice to, and whenappropriate, in consultation with theAdvisory Council on HistoricPreservation.

(c) The Endangered Species Act, 16U.S.C. 1531 et seq. Section 7 of the Actand implementing regulations (50 CFRPart 402) require the RegionalAdministrator to ensure, in consultationwith the Secretary of the Interior orCommerce, that any action authorizedby EPA is not likely to jeopardize thecontifiued existence of any endangeredor threatened species or adversely affectits critical habitat.

(d) The Coastal Zone ManagementAct, 16 U.S.C. 1451 et seq. Section 307(c)of the Act and implementing regulations(15 CFR Part 930) prohibit EPA fromissuing a permit for an activity affectingland or water use -in the coastal zoneuntil the applicant certifies that theproposed activity complies with theState Coastal Zone Managementprogram, and the State or its designatedagency concurs with the certification (orthe Secretary of Commerce overridesthe State's nonconcurrence).

(e) The Fish and WildlifeCoordination Act, 16 U.S.C. 661 et seq.,requires that the RegionalAdministrator, before issuing a permitproposing or authorizing theimpoundment (with certain exemptions),diversion, or other control ormodification of any body of water,consult with the appropriate Stateagency exercising jurisdiction overwildlife resources to conserve thoseresources.

(f) Executive orders. [Reserved.](g) The National Environmental

Policy Act, 33 U.S.C. 4321 et seq., mayrequire preparation of an EnvironmentalImpact Statement and the inclusion ofEIS-related permit conditions, asprovided in § 122.29(c).

§ 122.50 Disposal of pollutants Into wells,into publicly owned treatment works or byland application (applicable to State NPDESprograms, see § 123.25).

(a) When part of a discharger'sprocess wastewater is not beingdischarged into waters of the UnitedStates or contiguous zone because it is

disposed into a well, into a POTW, or byland application thereby reducing theflow or level of pollutants beingdischarged into waters of the UnitedStates, applicable effluent standardsand limitations 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 beeliminated from calculation of permiteffluent limitations or standards.

(2) In all cases other than thosedescribed in paragraph (a)(1) of thissection, effluent limitations shall beadjusted by multiplying the effluentlimitation derived by applying effluentlimitation guidelines to the total wastestream by the amount of wastewaterflow to be treated and discharged intowaters of the United States, anddividing the result by the totalwastewater flow. Effluent limitationsand standards so calculated may befurther adjusted under Part 125, SubpartD to make them more stringent ifdischarges to wells, publicly ownedtreatment works, or by land applicationchange the character or treatability ofthe pollutants being discharged toreceiving waters.

This method may be algebraicallyexpressed as:

- NP El X -

T

where 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) of this section doesnot apply to the extent that promulgatedeffluent limitations guidelines:

(1) Control concentrations ofpollutants discharged but not mass; or

(2) Specify a different specifictechnique for adjusting effluentlimitations to account for well injection,land application, or disposal intoPOTWs.

(cJ Paragraph (a) of this section doesnot alter a discharger's obligation tomeet any more stringent requirements

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14174 Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations

established under § § 122.41, 122.42,122.43, and 122.44.

Subpart D-Transfer, Modification,Revocation and Reissuance, andTermination of Permits

§ 122.61 Transfer of permits (applicable toState programs, see § 123.25).

(a) Transfers by modification. Except/as provided in paragrdph (b) of thissection, a permit may be transferred bythe permittee to a new owner oroperator only if the permit has beenmodified or revoked and reissued (under§ 122.62(b)(2)), or a minor modificationmade (under § 122.63(d)), to identify thenew permittee and incorporate suchother requirements as may be necessaryunder CWA.

(b) Automatic transfers. As analternative to transfers under paragraph(a) of this section, any NPDES permitmay be automatically transferred to anew permittee if:

(1) The current permittee notifies theDirector at least 30 days in advance ofthe proposed transfer date in paragraph(b)(2) of this section;

(2) The notice includes a writtenagreement between the existing andnew'permittees containing a specificdate for transfer of permit responsibility,coverage, and liability between them;and

(3) The Director does not notify theexisting permittee and the proposed newpermittee of his or her intent to modifyor revoke and reissue the permit. Amodification under ths subparagraphmay also be a minor modification under§ 122.63. If this notice is not received,the transfer is effective on the datespecified in the agreement mentioned inparagraph (b)(2) of this section.

§ 122.62 Modification or revocation andreissuance of permits (applicable to Stateprograms, see § 123.25).

When the Director receives anyinformation (for example, inspects thefacility, receives information submittedby the permiltee as required in thepermit (see § 122.41), receives a requestfor modification or revocation andreissuance under § 124.5, or conducts areview of the permit file) he or she maydetermine whether or not one or more ofthe causes listed in paragraphs (a) and(b) of this section for modification orrevocation and reissuance or both exist.If cause exists, the Director may modifyor revoke and reissue the permitaccordingly, subject to the limitations ofparagraph (c) of this section, and mayrequest an updated application ifnecessary. When a permit is modified,only the conditions subject tomodification are reopened. If a permit is

revoked and reissued, the entire permitis reopened and subject to revision andthe permit is reissued for a new term.See § 124.5(c)(2). If cause does not existunder this section or § 122.63, theDirector shall not modify or revoke andreissue the permit. If a permitmodification satisfies the criteria in§ 122.63 for "minor modifications" thepermit may be modified without a draftpermit or public review. Otherwise, adraft permit must be prepared and otherprocedures in Part 124 (or procedures ofan approved State program) followed.

(a) Causes for modification. Thefollowing are causes for modificationbut not revocation and reissuance ofpermits except when the permitteerequests or agrees.

(1) Alterations. There are material andsubstantial alterations or additions tothe permitted facility or activity whichoccurred after permit issuance whichjustify the application of permitconditions that are different or absent inthe existing permit.

[Note.--Certain reconstruction activitiesmay cause the new source provisions of§ 122.29 to be applicable.]

(2) Information. The Director hasreceived new information. Permits maybe modified during their terms for thiscause only if the information was notavailable at the time of permit issuance(other than revised regulations,guidance, or test methods) and wouldhave justified the application ofdifferent permit conditions at the time ofissuance. For NPDES general permhits(§ 122.28) this cause includes anyinformation indicating that cumulativeeffects on the environment areunacceptable.

(3) New regulations. The standards orregulations on which the permit wasbased have been changed bypromulgation of amended standards orregulations or by judicial decision afterthe permit was issued. Permits may bemodified during their terms for thiscause only as follows:

(i) For promulgation of amendedstandards or regulations, when:

(A) The permit condition requested tobe modified was based on apromulgated effluent limitation guidelineor EPA approved or promulgated waterquality standard; and

(B) EPA has revised, withdrawn, ormodified that portion of the regulationor effluent limitation guideline on whichthe permit condition was based, or hasapproved a State action with regard to awater quality standard on which thepermit condition was based; and

(C) A permittee requests modificationin accordance with § 124.5 within ninety

(90) days after Federal Register notice ofthe action on which the request is based.

(ii) For judicial decisions, a court ofcompetent jurisdiction has remandedand stayed EPA promulgatedregulations or effluent limitationguidelines, if the remand and stayconcern that portion of the regulationsor guidelines on which the permit -condition was based and a request isfiled by the permittee in accordancewith § 124.5 within ninety (90) days ofjudicial remand.

(iii) For changes based upon modifiedState certifications of NPDES permits,see § 124.55(b).

(4) Compliance schedules. TheDirector determines good cause existsfor modification of a complianceschedule, such as an act of God, strike,flood, or materials shortage or otherevents over which the permittee haslittle or no control and for which there isno reasonably available remedy.However, in no case may an NPDEScompliance schedule be modified toextend beyond an applicable CWAstatutory deadline. See also § 122.63(c)(minor modifications) and paragraph(a)(14) of this section (NPDES innovativetechnology).

(5) Variances. When the permittee hasfiled a request for a variance underCWA section 301(c), 301(g), 301(h),301(i), 301(k), or 316(a) or for"fundamentally different factors" withinthe time specified in § 122.21, and theDirector processes the request under theapplicable provisions of § § 124.61124.62, and 124.64.

(6) 307(a) toxics. When required toincorporate an applicable 307(a) toxiceffluent standard or prohibition (see§ 122.44(b)).

(7) Reopener. When required by the"reopener" conditions in a permit, whichare established in the permit under§ 122.44(b) (for CWA toxic effluentlimitations) or 40 CFR 403.10(e)(pretreatment program).

.(8)(i) Net limits. Upon request of apermittee who qualifies for effluentlimitations on a net basis under§ 122.45(h).

(ii) When a discharger is no longereligible for net limitations, as providedin § 122.45(h)(1)(ii)(B).

(9) Pretreatment. As necessary under40 CFR 403.8(e) (compliance schedulefor development of pretreatmentprogram).

(10) Failure to notify. Upon failure ofan approved State to notify, as requiredby section 402(b)(3), another Statewhose waters may be affected by adischarge from the approved State.

(11) Non-Limitedpollutants. When thelevel of discharge of any pollutant which



Federal Register I Vol. 48, No. 64 I Friday, April 1, 1983 I Rules and Regulations 14175is not limited in the permit exceeds thelevel which can be achieved by thetechnology-based treatmentrequirements appropriate to thepermittee under § 125.3(c).

(12) Use or manufacture of toxics.When the permittee begins or expects tobegin to use or manufacture as anintermediate or final product orbyproduct any toxic pollutant whichwas not reported in the permitapplication under § 122.21(g)(9).

(13) Notification levels. To establish a"notification level" as provided in§ 122.44(f).

(14) Compliance schedules. To modify.a schedule of compliance to reflect thetime lost during construction of aninnovative or alternative facility, in thecase of a POTW which has received agrant under section 202(a)(3) of CWA for100% of the costs to modify or replacefacilities constructed with a grant forinnovative and alternative wastewatertechnology under section 202(a)(2). In nocase shall the compliance schedule bemodified to extend beyond anapplicable CWA statutory deadline forcompliance.

(b) Causes for modification orrevocation and reissuance. Thefollowing are causes to modify or,alternatively, revoke and reissue apermit:

(1) Cause exists for termination under§ 122.64, and the Director determinesthat modification or revocation andreissuance is appropriate.

(2) The Director has receivednotification (as required in the permit,see § 122.41(1)(3)) of a proposed transferof the permit. A permit also may bemodified to reflect a transfer after theeffective date of an automatic transfer(§ 122.61(b)) but will not be revoked andreissued after the effective date of thetransfer except upon the request of thenew permittee.

§ 122.63 Minor modifications of permits.Upon the consent of the permittee, the

Director may modify a permit to makethe corrections or allowances forchanges in the permitted activity listedin this section, without following theprocedures of Part 124. Any permitmodification not processed as a minormodification under this section must bemade for cause and with Part 124 draftpermit and public notice as required in§ 122.62. Minor modifications may only:

(a) Correct typographical errors;(b) Require more frequent monitoring

or reporting by the permittee;(c) Change an interim compliance date

in a schedule of compliance, providedthe new date is not more than 120 daysafter the date specified in the existing

permit and does not interfere withattainment of the final compliance daterequirement; or

(d) Allow for a change in ownershipor operational control of a facility wherethe Director determines that no otherchange in the permit is necessary,provided that a written agreementcontaining a specific date for transfer ofpermit responsibility, coverage, andliability between the current and newpermittees has been submitted to theDirector.

(e)(1) Change the constructionschedule for a discharger which is a newsource. No such change shall affect adischarger's obligation to have allpollution control equipment installedand in operation prior to discharge'under § 122.29.

(2) Delete a point source outfall whenthe discharge from that outfall isterminated and does not result indischarge of pollutants from otheroutfalls except in accordance withpermit limits.

§ 122.64 Termination of permits(applicable to State programs, see§ 123.25).

(a) The following are causes forterminating a permit during its term, orfor denying a permit renewalapplication:. *(1) Noncompliance by the permitteewith any condition of the permit;

(2) The permittee's failure in theapplication or during the permitissuance process to disclose fully allrelevant facts, or the permittee'smisrepresentation of any relevant factsat any time; or

(3) A determination that the permittedactivity endangers human health or theenvironment and can only be regulatedto acceptable levels by permitmodification or termination.

(4) A change in any condition thatrequires either a temporary or apermanent reduction or elimination ofany discharge controlled by the permit(for example, plant closure ortermination of discharge by connectionto a POTW).

(b) The Director shall follow theapplicable procedures in Part 124 orState procedures in terminating anyNPDES permit under this section.

Appendix A-NPDES Primary IndustryCategories

Any permit issued after June 30, 1981 todischargers in the following categories shallinclude effluent limitations and a complianceschedule to meet the requirements of section301(b)(2)(A), (C), (D), (E) and (F) of CWA,whether or not applicable effluent limitationsguidelines have been promulgated. See§ § 122.44 and 122.46.

Industry Category

Adhesives and SealantsAluminum FormingAuto and Other LaundriesBattery ManufacturingCoal Mining-Coil CoatingCopper FormingElectrical and Electronic ComponentsElectroplatingExplosives ManufacturingFoundriesGum and Wood ChemicalsInorganic Chemicals ManufacturingIron and Steel ManufacturingLeather Tanning and FinishingMechanical Products ManufacturingNonferrous Metals ManufacturingOre MiningOrganic Chemicals ManufacturingPaint and Ink FormulationPesticidesPetroleum RefiningPharmaceutical PreparationsPhotographic Equipment and SuppliesPlastics ProcessingPlastic and Synthetic Materials

ManufacturingPorcelain EnamelingPrinting and PublishingPulp and Paper MillsRubber ProcessingSoap and Detergent ManufacturingSteam Electric Power PlantsTextile MillsTimber Products Processing

Appendix B-Criteria. for Determining aConcentrated Animal Feeding Operation(§ 122.23)

An animal feeding operation Is aconcentrated animal feeding operation forpurposes of § 122.23 if either of the followingcriteria are met.

(a) More than the numbers of animalsspecified in any of the following categoriesare confined:

(1) 1,000 slaughter and feeder cattle,(2) 700 mature dairy cattle (whether milked

or dry cows),(3) 2,500 swine each weighing over 25

kilograms (approximately 55 pounds),(4) 500 horses,(5) 10,000 sheep or lambs,

, (6) 55,000 turkeys,(7) 100,000 laying hens or broilers (if the

facility has continuous overflow watering),(8) 30,000 laying hens or broilers (if the

facility has a liquid manure system),(9) 5,000 ducks, or(10) 1,000 animal units; or(b) More than the following number and

types of animals are confined:(1) 300 slaughter or feeder cattle,(2) 200 mature dairy cattle (whether milked

- or dry cows),(3) 750 swine each weighing over 25

kilograms (approximately 55 pounds),(4) 150 horses,(5) 3,000 sheep or lambs,(6) 16,500 turkeys,(7) 30,000 laying hens or broilers (if the

facility has continuous overflow watering),.(8) 9,000 laying hens or broilers (if the

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14176 Federal Register / Vol. 48, No. 64 / Fridav. Avril 1. 1983 / Rules and Rplatinna

facility has a liquid manure handling system),(9) 1,500 ducks, or(10) 300 animal units;

and either one of the following conditions aremet: pollutants are discharged into navigablewaters through a manmade ditch, flushingsystem or other similar man-made device; orpollutants are discharged directly into watersof the United States which originate outsideof and pass over, across, or through thefacility or otherwise come into direct contactwith the animals confined in the operation.

Provided, however, that no animal feedingoperation is a concentrated animal feedingoperation asefined above if such animalfeeding operation discharges only in theevent of a 25 year, 24-hour storm event.

The term "animal unit" means a unit ofmeasurement for any animal feedingoperation calculated by adding the followingnumbers: the number of slaughter and feedercattle multiplied by 1.0, plus the number ofmature dairy cattle multiplied by 1.4, plus thenumber of swine weighing over 25 kilograms(approximately 55 pounds) multiplied by 0.4,plus the number of sheep multiplied by 0.1,plus the number of horses multiplied by 2.0.

The term "manmade" means constructedby man and used for the purpose oftransporting wastes.

Appendix C-Criteria for Determining aConcentrated Aquatic Animal ProductionFacility (§ 122.24).

A hatchery, fish farm, or other facility is aconcentrated aquatic animal productionfacility for purposes of § 122.24 if it contains,grows, or holds aquatic animals in either ofthe following categories:

(a) Cold water fish species or other coldwater aquatic animals in ponds, raceways, orother similar structures which discharge atleast 30 days per year but do's not include:

(1) Facilities which produce less than 9,090harvest weight kilograms (approximately20,000 pounds) of aquatic animals per year;and

(2) Facilities which feed less than 2,272kilograms (approximately 5,000 pounds) offood during the calendar month of maximumfeeding.

(b) Warm water fish species or other warmwater aquatic animals in ponds, raceways, orother similar structures which discharge atleast 30 days per year, but does not include:

(1) Closed ponds which discharge onlyduring periods of excess runoff; or

(2) Facilities which produce less than45,454 harvest weight kilograms(approximately 100,000 lPounds) of aquaticanimals per year.

"Cold water aquatic animals" include, butare not limited to, the Salmonidae family offish; e.g., trout and salmon.

"Warm water aquatic animals" include, butare not limited to, the Ameiuride,Centrarchidoeand Cyprinidae families offish; e.g., respectively, catfish, sunfish andminnows.

Appendix D-NPDES Permit ApplicationTesting Requirements (§ 122.21).

TABLE I.-TESTING REQUIREMENTS FOR OR-GANIC Toxic POLLUTANTS BY INDUSTRIALCATEGORY FOR EXISTING DISCHARGERS

GC/MS FractionIndustrial category Base PesiVolatile Acid neutral cide

Adhesives andSealants .....................

Aluminum Forming.Auto and OtherLaundres ...................

Battery Manufacturing..Coal Mining ....................Coil Coating .................Copper Formrng.......Electric and

ElectronicComponents .........

Electroplating ...........Explosives

Manufacturing ...........Foundries ......................Gum and Wood

Chemicals .................Inorganic Chemicals

Manufacturing ............Iron and Steel

Manufacturng_.......Leather Tanning and

Finishing ....................Mechanical Products

Manufacturing ...........Nonferrous Metals

Manufacturing ............Ore Mining .....................Organic Chemicals

Manufacturing ............Paint and Ink

Formulation ...............Pesticides ...............Petroleum Refining.Pharmaceutical

Preparations ..............Photographic

Equipment andSupplies ....................

Plastic and SyntheticMaterialsManufacturing ............

Plastic Processing. *Porcelan Enameling.Printing and

Publishing.Pulp and Paper Mills....Rubber Processing......Soap and Detergent

Manufacturing.Steam Electric Power

Plants.: ................Textile Mills .......... ...

limber ProductsProcessing ................

'The toxic pollutants in each traction are listed in Tabl*Testing required.

Table lI.-Organic Toxic Pollutants in Eachof Four Fractions in Analysis by GasChromatograplby/Mass Spectroscopy (GS/MS)

Volotiles

1V acrolein2V acrylonitrile3V benzene5V bromoformOV carbon tetrachloride7V chlorobenzene8V chlorodibromomethane9V chloroethane

10V .2-chloroethylvinyl ether11V chloroform12V dichlorobromomethane14V 1,1-dichloroethane

1,2-dichloroethane1,1-dichloroethylene1,2-dichloropropane1,2-dichloropropyleneethylbenzeiemethyl bromidemethyl chloridemethylene chloride1,1,2,2-tetrachloroethanetetrachloroethylenetoluene1,2-trans-dichloroethylene1,1,1-trichloroethane1,1,2-trichloroethanetrichloroethylenevinyl chloride

Acki

1A2A3A4A5A6A7A8A9A

10A11A

Base

1B2B3B4B5B6B7B

889B

10B11B12B13B14B15B16B17B18B19B20B21B22B23B24B

e I. 25B26B27B28B29B30B31B32B33B34B35B36B37B38B39B40B41B42B43B44B45B

d Compounds

2-chlorophe2,4-dichloro2,4-dimethy4,6-dinitro-(2,4-dinitrop2-nitrophen4-nitrophenp-chloro-m-pentachlorcphenol2,4,6-trichlo

e/Neutral

nolphenolIphenolo-cresolhenolololcresol j.tphenol

rophenol

acenaphtheneacenaphthyleneanthracenebenzidinebenzo(a)anthracenebenzo(a)pyrene3,4-benzofluoranthenebenzo(ghi)perylenebenzo(k)fluoranthenebis(2-chloroethoxy)methanebis(2-chloroethyl)etherbis(2-chloroisopropyl)etherbis (2-ethylhexyl)phthalate4-bromophenyl phenyl etherbutylbenzyl phthalate2-chloronaphthalene4-chlorophenyl phenyl etherchrysenedibenzo(a,h)anthracene1,2-dichlorobenzene1,3-dichlorobenzene1,4-dichlorobenzene3,3'-dichlorobenzidinediethyl phthalatedimethyl phthalatedi-n-butyl phthalate2,4-dinitrotoluene2,6-dinitrotoluenedi-n-octyl phthalate1,2-diphenylhydrazine (as azobenzene)fluroranthenefluorenehexachlorobenzenehexachlorobutadienehexachlorocyclopentadienehexachloroethaneindeno(1,2,3-cd)pyreneisophoronenapthalenenitrobenzeneN-nitrosodimethylamineN-nitrosodi-n-propylamineN-nitrosodiphenylaminephenanthrenepyrene

Federal Register / Vol. 48, No. 64 / Friday, ADril 1 1983 / Rules and Rec-lations14176




40B 1,2,4-trichlorobenzene

Pesticides

1P aldrin2P alpha-BHC3P beta-BHC4P gamma-BHC5P delta-BHC6P chlordane7P 4,4'-DDT8P 4,4'-DDE9P 4,4'-DDD10P dieldrin11P alpha-endosulfan12P beta-endosulfan13P endosulfan sulfate14P endrin15P endrin aldehyde16P heptachlor17P heptachlor epoxide18P PCB-124219P PCB-125420P PCB-122121P PCB-123222P PCB-124823P PCB-126024P PCB-101625P toxaphene

Table 11.I-Other Toxic Pollutants: Metals,Cyanide, and Total Phenols

Antimony, TotalArsenic, TotalBeryllium, TotalCadmium, TotalChromium, TotalCopper, TotalLead, TotalMercury, TotalNickel, TotalSelenium, TotalSilver, TotalThallium, TotalZinc, TotalCyanide, TotalPhenols, Total

Table IV.-Conventional andNonconventional Pollutants Required To BeTested by Existing Dischargers if Expected tobe Present

BromideChlorine, Total ResidualColorFecal ColiformFluorideNitrate-NitriteNitrogen, Total OrganicOil and GreasePhosphorus, TotalRadioactivitySulfateSulfideSulfiteSurfactantsAluminum, TotalBarium, TotalBoron, TotalCobalt, TotalIron, TotalMagnesium, TotalMolybdenum, TotalManganese, TotalTin, TotalTitanium, Total

Table V.-Toxic Pollutants and HazardousSubstances Required To Be Identified byExisting Dischargers if Expected To BePresent

Toxic Pollutants

Asbestos

Hazardous Substances

AcetaldehydeAllyl alcoholAllyl chlorideAmyl acetateAnilineBenzonitrileBenzyl chlorideButyl acetateButylamineCaptanCarbarylCarbofuranCarbon disulfideChlorpyrifosCoumaphosCresolCrotonaldehydeCyclohexane2,4-D (2,4-Dichlorophenoxy acetic acid)DiazinonDicambaDichlobenilDichlone2,2-Dichloropropionic acidDichlorvosDiethyl amineDimethyl amineDintrobenzeneDiquatDisulfotonDiuronEpichlorohydrinEthanolamineEthionEthylene diamineEthylene dibromideFormaldehydeFurfuralGuthionIsopreneisopropanolamineKelthaneKeponeMalathionMercaptodimethurMethoxychlorMethyl mercaptanMethyl methacrylateMethyl parathionMevinphosMexacarbateMonoethyl amineMonomethyl amineNaledNapthenic acidNitrotolueneParathionPhenolsulfanatePhosgenePropargitePropylene oxidePyrethrinsQuinolineResorcinolStrontiumStrychnineStyrene

2,4,5-T (2,4,5-Trichlorophenoxy acetic acid)TDE (Tetrachlorodiphenylethane)2,4,5-TP [2-(2,4,5-Trichlorophenoxy)

propanoic acid]TrichlorofanTriethylamineTrimethylamineUraniumVanadiumVinyl acetateXyleneXylenolZirconium

[Note.-The Environmental ProtectionAgency has suspended the requirements of§122.21(g)(7)(ii)(A) and Table I of Appendix Das they apply to certain industrial categories.The suspensions are as follows:

At 46 FR 2046, Jan. 8, 1981, theEnvironmental Protection Agency suspendeduntil further notice § 122.21(g)(7](ii)(A) as itapplies to coal mines.

At 46 FR 22585, Apr. 20, 1981, theEnvironmental Protection Agency suspendeduntil further notice § 122.21(g)(7)(ii)(A) and 'the corresponding portions of Item V-C of theNPDES application Form 2c as they apply to:

1. Testing and reporting for all four organicfractions in the Greige Mills Subcategory ofthe Textile Mills industry (Subpart C-Lowwater use processing of 40 CFR Part 410), andtesting and reporting for the pesticide fractionin all other subcategories of this industrialcategory.

2. Testing and reporting for the volatile,base/neutral and pesticide fractions in theBase and Precious Metals Subcategory of theOre Mining and Dressing industry (Subpart Bof 40 CFR Part 440), and testing and reportingfor all four fractions in all other subcategoriesof this industrial category.

3. Testing and reporting for all four GC/MSfractions in the Porcelain Enameling industry.

At 46 FR 35090, July 1, 1981, theEnvironmental Protection Agency suspendeduntil further notice § 122.21(g)(7)(ii)(A) andthe corresponding portions of Item V-C of theNPDES application Form 2c as they apply to:

1. Testing and reporting for the pesticidefraction in the Tall Oil Rosin Subcategory(Subpart D) and Rosin-Based DerivativesSubcategory (Subpart F) of the Gum andWood Chemicals industry (40 CFR Part 454),and testing and reporting for the pesticideand base/netural fractions in all othersubcategories of this industrial category.

2. Testing and reporting for the pesticidefraction in the Leather Tanning and Finishing,Paint and Ink Formulation, and PhotographicSupplies industrial categories.

3. Testing and reporting for the acid, base/neutral and pesticide fractions in thePetroleum Refining industrial category.

4. Testing and reporting for the pesticidefraction in the Papergrade Sulfitesubcategories (Subparts J and U) of the Pulpand Paper industry (40 CFR Part 430); testingand reporting for the base/neutral andpesticide fractions in the followingsubcategories: Deink (Subpart Q), DissolvingKraft (Subpart F), and Paperboard fromWaste Paper (Subpart E); testing andreporting for the volatile, base/neutral andpesticide fractions in the followingsubcategories: BCT Bleached Kraft (Subpart

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H). Semi-Chemical [Subparts B and C), andNonintegrated-Fine Papers (Subpart R); andtesting and reporting for the acid. base/neutral, and pesticide fractions in thefollowing subcategories: Fine Bleached Kraft(Subpart I). Dissolving Sulfite Pulp (SubpartK), Groundwood-Fine Papers (Subpart 0),Market Bleached Kraft (Subpart G, Tissuefrom Wastepaper (Subpart T), andNonintegrated-Tissue Papers (Subpart S).

5. Testing and reporting for the base/neutral fraction in the Once-Through CoolingWater, Fly Ash and Bottom Ash TransportWater process wastestreams of the SteamElectric Power Plant industrial category.This revision continues these suspensions.)

For the duration of the suspensions,therefore, Table I effectively reads:

TABLE I.-TESTING REQUIREMENTS FOR OR-

GANIC Toxic POLLUTANTS BY INDUSTRY CAT-EGORY

GC/MS fraction'Industry category Vote. c Neu- Pest-

tile tral cide

Adhesives ands a.a.t ) ') ('Alumnum forming ................. V) () (')Auto and other laundries . ) ) V) ()Battery manufacturing ........... ) ')coal mining...Coil coating ........................... ) ( ) (')Copper forming .................... ) (V) (')Electric and electronic

compounds .................... () V) ') (1)Electroplating .................. () V) ')Expes marufactu.in. (1 (1)Foundries ............................... ) () ()Gum and wood (all sub-

parts except D and F).... 0') (')Subpart --tall ol rosin. () () ()Subpart F-rosin-baseddertvatives......................... (.) .) ()

Inorganic chemicals manu-facturng .............................. () (') (')

Iron and steel manufactur-ing .... . ... .(............................. () ()

Leather tanning and finish-Ing ... .......... .................... .... 0 0' '

Mechanical products man-ufacturing ........................... () C.)

Nonferrous metals manu-facturing ............................ () () ') ()

Ore mining (applies to thebase and preciousmetals/subpart B) ............. )

Organic chemicals .anu-c ing.............................. () () () (V)

Paint and Ink fomution .. () () (V)Pesticides .......... ) V) V) V)Petroleum refining ................ ')Pharmaceutical prepana-

tions .................................. V) ()Photographlc equipment

and supplies ...................... () V) V)Plastic and synthetic mate-

rials manufacturing ........... ) ) (') V)Plastic processn ................. )Porcelain enameling ..............Printing and publishingV. ) V) V) V)Pulp. and paperboard

mills-see footnote .Rubber processing ............. ) ) )Soap and detergent manu-

factu ring ............................. ) (*) (*)Steam electric power

plants ....................... )Textile mills (subpart C-

Greige Mills are exemptfrom this table) ................... ) (') ()

Timber products process-ing . ........ .............. ) ) ) (')

*Testing required.'The pollutants in each fraction are listed in item V-C.'Pulp and Paperboard Mills:

GS/MS fractions

Subpart # Basel Pest -VOA Acid neu- es

tral cides

A .............................. () - ( )S.............................. - ) - -C .............................. - () - -D ............................ (*) -............................ (') - ()

F .............................. ) ) - -G ............................. ) ) -H ............................. () ) -I ............................... ) ( ) -J .............................. V ) ) -K ............................. ) -L ...................... ) ( ) -M ............................. ( ) -N ............................. ( ) -o ............................. ) ) -P . .................... V) ( )............................. . ) ) ( )............................. ) -

S.() () (.)T() () (()u ............................. () 1 ) () -

*Must test.- Do not test unless "reason to believe" it is dis

charged. # Subparts are defined in 40 CFR Part 430.


PART 123-STATE PROGRAMREQUIREMENTS

Subpart A-General

Sec.123.1 Purpose and scope.123.2 Definitions.123.3 Coordination with other programs.

Subpart B-State Program Submissions123.21 Elements of a program submission.123.22 Program description.123.23 Attorney General's Statement.123.24 Memorandum of Agreement with the

Regional Administrator.123.25 Requirements for permitting.123.26 Requirements for compliance

evaluation programs.123.27 Requirements for enforcement

authority.123.28 Control of disposal of pollutants into

wells.123.29 Prohibition.

Subpart C-Transfer of Information andPermit Review123.41 Sharing of information.123.42 Receipt and use of Federal

information.123.43 Transmission of information to EPA.123.44 EPA review of and objections to

State permits.123.45 Noncompliance and program

reporting by the Director.

Subpart D-Program Approval, Revisionand Withdrawal123.61 Approval process.123.62 Procedures for revision of State

programs.123.63 Criteria for withdrawal of State

programs.123.64 Procedures for withdrawal of State

programs.Authority: Clean Water Act, 33 U.S.C. 1251

et seq.

Subpart A-General

§ 123.1 Purpose and scope.(a) This part specifies the procedures

EPA will follow in approving, revising,and withdrawing State programs andthe requirements State programs mustmeet to be approved by theAdministrator under Sections 318, 402,and 405 (National Pollutant DischargeElimination System-NPDES) of CWA.

(b) These regulations are promulgatedunder the authority of sections 304(i)and 101(e) of CWA, and implement therequirements of those sections.

(c) The Administrator shall approveState programs which conform to theapplicable requirements of this Part. AState 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 sections318 and 405 will riot be approvedindependent of a section 402 permitprogram.

(d) Upon approval of a State program,the Administrator shall suspend theissuance of Federal permits for thoseactivities subject to the approved Stateprogram. After program approval EPAshall retain jurisdiction over 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 receipt and reviewof self-monitoring reports. If any permitappeal, modification request or variancerequest is not finally resolved when theFederally issued permit expires, EPAmay, with the consent of the State,retain jurisdiction until the matter isresolved.

(e) Upon submission of a completeprogram, EPA will conduct a publichearing, if interest is shown, anddetermine whether to approve ordisapprove the program taking intoconsideration the requirements of thispart, the CWA and any commentsreceived.

(f) Any State program approved bythe Administrator shall at all times beconducted in accordance with therequirements of this Part.

(g) No partial NPDES programs will beapproved by EPA. The State programmust prohibit (except as provided in§ 122.3) all point source discharges ofpollutants, all discharges intoaquaculture projects, and all disposal of

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sewage sludge which results in anypollutant from such sludge entering intoany waters of the United States withinthe State's jurisdiction, except asauthorized by a permit in effect underthe State program or under section 402of CWA. NPDES authority may beshared by two or more State agenciesbut each agency must have Statewidejurisdiction over a class of activities ordischarges. When more than one agencyis responsible for issuing permits, eachagency must make a submission meetingthe requirements of § 123.21 before EPAwill begin formal review.

(h) A State's lack of authority toregulate activities on Indian lands doesnot impair a State's ability to obtain fullprogram approval in accordance withthis Part, i.e., inability of a State to-regulate activities on Indian lands doesnot constitute a partial program. EPAwill administer the program on Indianlands if the State does not seek thisauthority.

[Note.-States are advised to contact theUnited States Department of the Interior,Bureau of Indian Affairs, concerningauthority over Indian lands.]

(i) Nothing in this Part precludes aState from:

(1) Adopting or enforcingrequirements which are more stringentor more extensive than those requiredunder this Part;(2) Operating a program with a greater

scope of coverage than that requiredunder this Part. If an approved Stateprogram has greater scope of coveragethan required by Federal law theadditional coverage is not part of theFederally approved program.

[Note.-For example, if a State requirespermits for discharges into publicly ownedtreatment works, these permits are notNPDES permits.]

§ 123.2 Definitions.The definitions in Part 122 apply to all

subparts of this Part.

§ 123.3 Coordination with other programs.Issuance of State permits under this

Part may be coordinated with issuanceofRCRA, UIC, NPDES, and 404 permitswhether they are controlled by theState, EPA, or the Corps of Engineers.See § 124.4.

Subpart B-State ProgramSubmissions

§ 123.21 Elements of a programsubmission.

(a) Any State that seeks to administera program under this Part shall submitto the Administrator at least threecopies of a program submission. The

submission shall contain at least threecopies of the following:

(1) A letter from the Governor of theState requesting program approval;

(2) A complete program description,as required by § 123.22, describing howthe State intends to carry out itsresponsibilities under this Part:

(3) An Attorney Generals statementas required by § 123.23;

(4) A Memorandum of Agreement.with the Regional Administrator asrequired by § 123.24;

(5) Copies of all applicable Statestatutes and regulations, including thosegoverning State administrativeprocedures;

(b) Within 30 days of receipt by EPAof a State program submission, EPA willnotify the State whether its submissionis complete. If EPA finds that a State'ssubmission is complete, the statutoryreview period (i.e., the period of timeallotted for formal EPA review of aproposed State program under CWA)shall be deemed to have begun on thedate of receipt of the State's submission.If EPA finds that a State's submission isincomplete, the statutory review periodshall not begin until all the necessaryinformation is received by EPA.

(c) If the State's submission ismaterially changed during the statutoryreview period, the statutory reviewperiod shall begin again upon receipt ofthe revised submission.

(d) The State and EPA may extend thestatutory review period by agreement.

§ 123.22 Program description.Any State that'seeks to administer a

program under this Part shall submit adescription of the program it proposes toadminister in lieu of the Federalprogram under State law or under aninterstate compact. The programdescription shall include:

(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 responsibilityfor administering the program, includingthe information listed below. If morethan one agency is responsible foradministration of a program, eachagency must have statewide jurisdictionover a class of activities. Theresponsibilities of each agency must bedelineated, their procedures forcoordination set forth,and an agencymay be designated as a "lead agency" tofacilitate communications between EPAand the State agencies having programresponsibility. If the State proposes toadminister a program of greater scope ofcoverage than is required by Federal

law, the information provided under thisparagraph shall indicate the resourcesdedicated to administering the Federallyrequired portion of the program.

(1) A description of the State agencystaff who will carry out the Stateprogram, including the number,occupations, and general duties of theemployees. The State need not submitcomplete job descriptions for everyemployee carrying out the Stateprogram.

(2) An itemization of the estimatedcosts of establishing and administeringthe program* for the first two years afterapproval, including cost of the personnellisted in paragraph (b)(1) of this section,cost of administrative support, and costof technical support.

(3) An itemization of the sources andamounts of funding, including anestimate of Federal grant money.available to the State Director for-thefirst two years after approval to meetthe costs listed in paragraph (b)(2) ofthis section, identifying any restrictionsoilimitations upon this funding.

1c) A description of applicable Stateprocedures, including permittingprocedures and any State administrativeor judicial review procedures;

(d) Copies of the permit form(s),application form(s), and reportingform(s) the State intends to employ in itsprogram. Forms used by States need notbe identical to the forms used by EPAbut should require the same basicinformation, except that State NPDESprograms are required to use standardDischarge Monitoring Reports (DMR).The State need not provide copies ofuniform national forms it intends to usebut should note its intention to use suchforms.

[Note.-States are encouraged to useuniform national forms established by theAdministrator. If uniform national forms areused, they may be modified to include theState Agency's name, address, logo, andother similar information, as appropriate, inplace of EPA's.]

(e) A complete description of theState's compliance tracking andenforcement programs.

§ 123.23 Attorney General's statement(a) Any State that seeks to administer

a program under this Part shall submit astatement from the State AttorneyGeneral (or the attorney for those Stateor interstate agencies which haveindependent legal counsel) that the lawsof the State, or an interstate compact,provide adequate authority to carry outthe program described under § 123.22and to meet the requirements of thisPart. This statement shall includecitations to the specific statutes,

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administrative regulations, and, whereappropriate, judicial decisions whichdemonstrate adequate authority. Statestatutes and regulations cited by theState Attorney General or independentlegal counsel shall be in the form oflawfully adopted State statutes andregulations at the time the statement issigned and shall be fully effective by thetime the program is approved. To qualifyas "independent legal counsel" theattorney signing the statement requiredby this section must have full authorityto independently represent the Stateagency in court on all matters pertainingto the State program.

[Note.-EPA will supply States with anAttorney General's statement format onrequest.]

(b) If a State seeks authority overactivities on Indian lands, the statementshall contain an appropriate analysis ofthe State's authority.

(c) The Attorney General's statementshall certify that the State has adequatelegal authority to Issue and enforcegeneral permits if the State seeks to ,implement the general permit programunder § 122.28.

§ 123.24 Memorandum of Agreement withthe Regional Administrator.

(a) Any State that seeks to administera program under this Part shall submit aMemorandum of Agreement. TheMemorandum of Agreement shall beexecuted by the State Director and theRegional Administrator and shallbecome effective when approved by theAdministrator. In addition to meetingthe requirements of paragraph (b) of thissection, the Memorandum of Agreementmay include other terms, conditions, oragreements consistent with this Part andrelevant to the administration andenforcement of the State's regulatoryprogram. The Administrator shall notapprove any Memorandum ofAgreement which contains provisionswhich restrict EPA's statutory oversightresponsibility.

(b) The Memorandum of Agreementshall include the following:

(1) Provisions for the prompt transferfrom EPA to the State of pending permitapplications and any other informationrelevant to program operation notalready in the possession of the StateDirector (e.g., support files for permitissuance, compliance reports, etc.). Ifexisting permits are transferred fromEPA to the State for administration, theMemorandum of Agreement shallcontain provisions specifying aprocedure for transferring theadministration of these permits. If aState lacks the authority to directlyadminister permits issued by the Federal

government, a procedure may beestablished to transfer responsibility forthese permits.

[Note.-For example, EPA and the Stateand the permittee could agree that the Statewould issue a permit(s) identical to theoutstanding Federal permit which wouldsimultaneously be terminated.]

(2) Provisions specifying classes andcategories of permit applications, draftpermits, and proposed permits that theState will send to the RegionalAdministrator for review, comment and,where applicable, objection.

(3) Provisions specifying the frequencyand content of reports, documents andother information which the State isrequired to submit to EPA. The Stateshall allow EPA to routinely reviewState records, reports, and files relevantto the administration and enforcementof the approved program. State reportsmay be combined with grant reportswhere appropriate. These proceduresshall implement the requirements of§ 123.43.

(4) Provisions on the State'scompliance monitoring and enforcementprogram, including:

(i) Provisions for coordination ofcompliance monitoring activities by theState and by EPA. These may specify.the basis on which the RegionalAdministrator will select facilities oractivities within the State for EPAinspection. The Regional Administratorwill normally notify the State at least 7days before any such inspection; and

(ii) Procedures to assure coordinationof enforcement activities.

(5) When appropriate, provisions forjoint processing of permits by the Stateand EPA for facilities or activities whichrequire permits from both EPA and theState under different programs. (See§ 124.4.)

[Note.-To promote efficiency and to avoidduplication and inconsistency, States areencouraged to enter into joint processingagreements with EPA for permit issuance.Likewise, States are encouraged (but not.required) to consider steps to coordinate orconsolidate their own permit programs andactivities.]

(6) Provisions for modification of theMemorandum of Agreement inaccordance with this Part.

(c) The Memorandum of Agreement,the annual program grant and the State/EPA Agreement should be consistent. Ifthe State/EPA Agreement indicates thata change is needed in the Memorandumof Agreement, the Memorandum ofAgreement may be amended through theprocedures set forth in this part. TheState/EPA Agreement may not overridethe Memorandum of Agreement.

[Note.-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. However, it may still be appropriate tospecify in the MOA the basis for suchdetailed agreements, e.g., a provision in theMOA specifying that EPA will select facilitiesin the State for inspection annually as part ofthe State/EPA agreement.]

(d) The Memorandum of Agreementshall also specify the extent to whichEPA will waive its right to review, -object to, or comment upon State-issuedpermits under sections 402(d)(3), (e) or(f) of CWA. While the RegionalAdministrator and the State may agreeto waive EPA review of certain "classesor categories" of permits, no waiver ofreview may be granted for the followingdischarges:

(1) Discharges into the territorial sea-(2) Discharges which may affect the

waters of a State other than the one inwhich the discharge originates;

(3) Discharges proposed to beregulated by general permits (see§ 122.28);

(4) Discharges from publicly ownedtreatment Works with a daily averagedischarge exceeding I million gallsonper day;

(5) Discharges of uncontaminatedcooling water with a daily averagedischarge exceeding 500 million gallonsper day;

(6) Discharges from any majordischarger or from any discharger withinany of the 21 industrial categories listedin Appendix A to Part 122;

• (7) Discharges from other sources witha daily averagedischarge exceeding 0.5(one-half) million gallons per day,except that EPA review of permits fordischarges of non-process wastewatermay be waived regardless of flow.

(e) Whenever a waiver is grantedunder paragraph (d) of this section, theMemorandum of Agreement shallconfain:

(1) A statement that the RegionalAdministrator retains the right toterminate the waiver as to future permitactions, in whole or in part, at any timeby sending the State Director writtennotice of termination; and

(2) A statement that the State shallsupply EPA With copies of final permits.

§ 123.25 Requirements for permitting.(a) All State programs under this Part

must have legal authority to implementeach of the following provisions andmust be administered in conformancewith each; except that States are notprecluded from omitting or modifyingany provisions to impose more stringentrequirements:

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Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 1 Rules and Regulations

(1) § 122.4-{Prohibitons):(2) § 122.5(a) and (b)-(Effect of

permit);(3) § 122.7(b)-(d)-(Confidential

information);(4) § 122.21(a)-(b), (e)-(j), and (l)-(o)-

(Application for a permit);(5) § 122.22-(Signatories);(6) § 122.23-(Concentrated animal

feeding operations);(7) § 122.24-(Concentrated aquatic

animal production facilities);(8) § 122.25-(Aquaculture projects);(9) § 122.26--(Separate storm sewers);(10) § 122.27--(Silviculture);(11) § 122.28-(General permits),

provided that States which do not seek.to implement the general permit programunder § 122.28 need not do so.

(12) § 122.41--(Applicable permitconditions);

( (13) § 122.42-(Conditions applicableto specified categories of permits);

(14) § 122.43--(Establishing permitconditions);

(15) § 122.44-(Establishing NPDESpermit conditions);

(16) § 122.45-(Calculating permitconditions);(17) § 122.46-(Duration);

(18) § 122.47(a)-(Schedules ofcompliance);

(19] § 122.48-(Monitoringrequirements);

(20) § 122.50-(Disposal into wells);(21) § 122.61--(Permit transfer);(22) § 122.62-(Permit modification);(23) § 122.64--(Permit termination);(24) § 124.3(a)-(Application for a

permit);(25) § 124.5 (a), (c), (d), and (f)-

(Modification of permits);(26)'§ 124.6 (a), (c), (d), and (e)-(Draft

permit);(27) § 124.8-(Fact sheets);(28) § 124.10 (a)(1}(ii), (aJ(1)(iii),

(a)(1)(v), (b), (c), (d), and (e)--Publicnotice);

(29) § 124.11-(Public comments andrequests for hearings);

(30) § 124.12(a)-(Public hearings);and "

(31) § 124.17 (a) and (c)-Response tocomments);

(32) § 124.5--(Fact sheets);(33) § i24.57(a)-(Public notice);(34) § 124.59-(Comments from

government agencies);(35) § 124.62-(Decision on variances);(36) Subparts A, B,C, D, H, I, 1, K and L

of Part 125; And(37) 40 CFR Parts 129, 133, and

Subchapter N.

[Note.-States need not implementprovisions identical to the above listedprovisions. Implemented provisions must.however, establish requirements at least asstringent as the corresponding listedprovisions. While States may impose more

stringent requirements, they may not makeone requirement more lenient as a tradeofffor making another requirement morestringent; for example, by requiring thatpublic hearings be held prior to issuing anypermit while reducing the amount of advancenotice of such a hearing.

State programs may, if they have adequatelegal authority, implement any of theprovisions of Parts 122 and 124. See, forexample, § 122.5(d) (continuation of permits)and § 124.4 (consolidation of permitprocessing).

For example, a State may impose morestringent requirements in an NPDES programby omitting the iOpset provision of § 122.41 orby requiring more prompt notice of an upset.]

(b) State NPDES'programs shall havean approved continuing planningprocess under 40 CFR 35.1500 and shallassure that the approved planningprocess is at all times consistent withCWA.

(c) State NPDES programs shallensure 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.

(1) For the purposes of this paragraph:(i) "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 onappeal.

(iH) "Significant portion of income"means 10 percent or more of grosspersonal income for a calendar year,except that it means 50 percent or moreof gross personal income for a calendaryear if the recipient is over 60 years ofage and is receiving that portion underretirement, pension, or similararrangement.

(iii) "Permit holders or applicants for apermit" does not include anydepartment or agency of a Stategovernment, such as a Department ofParks or a Department of Fish andWildlife.

(iv) "Income" includes retirementbenefits, consultant fees, and stockdividends,

(2) For the purposes of paragraph (c)of this section, income is not received"directly or indirectly from permitholders or applicants for a permit" whenit is derived from mutual fund payments,or from other diversified investments forwhich the recipient does not know theidentity of the primary sources ofincome.

§ 123.26 RequiremenIts for complianceevaluation programs.

(a) State programs shall haveprocedures for receipt, evaluation,

retention and investigation for possibleenforcement of all notices and reportsrequired of permittees and otherregulated persons (and for investigationfor possible enforcement of failure tosubmit these notices and reports).

(b) State programs shall haveinspection and surveillance proceduresto determine, independent ofinformation supplied by regulatedpersons, compliance or noncompliancewith applicable program requirements.The State shall maintain:

(1) A program which is capable ofmaking comprehensive surveys of allfacilities and activities subject to theState Director's authority to identifypersons subject to regulation who havefailed to comply with permit applicationor other program requirements. Anycompilation, index or inventory of suchfacilities and activities shall be madeavailable to the Regional Administratorupon request;

(2) A program for periodic inspectionsof the facilities and activities subject toregulation. These inspections, shall beconducted in a manner designed to:

(i) Determine compliance ornoncompliance with issued permitconditions and other programrequirements;

(ii) Verify the accuracy of informationsubmitted by permittees and otherregulated persons in reporting forms andother forms supplying monitoring data;and

(iii) Verify the adequacy of sampling,monitoring, and other methods used bypermittees and other regulated personsto develop that information;

(3) A program for investigatinginformation obtained regardingviolations of applicable program andpermit requirements; and

(4) Procedures for receiving andensuring proper consideration ofinformation submitted by the Publicabout violations. Public effort inreporting violations shall be encouraged.and the State Director shall makeavailable information on reportingprocedures.

(c) The State Director and Stateofficers engaged in complianceevaluation shall have authority to enterany site or premises subject toregulation or in which records relevantto program operation are kept in orderto copy any records, inspect, monitor orotherwise investigate compliance withthe State program including compliance.with permit conditions and otherprogram requirements. States whose lawrequires a search warrant before entryconform with this requirement.

(d) Investigatory inspections shall beconducted, samples shall be taken and

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14182 Federal Register I Vol. 48, No._64 I Friday, April 1, 1983 I Rules and Regulationsother information shall be gathered in amanner (e.g., using proper "chain ofcustody" procedures) that will produceevidence admissible in an enforcementproceeding or in court.

(e) State NPDES complianceevaluation programs shall haveprocedures and ability for:

(1) Maintaining a comprehensiveinventory of all sources covered byNPDES permits and a schedule ofreports required to be submitted bypermittees to the State agency;

(2) Initial screening (i.e., pre-enforcement evaluation) of all permit orgrant-related compliance information toidentify violations and to establishpriorities for further substantivetechnical evaluation;

(3) When warranted, conducting asubstantive technical evaluationfollowing the initial screening of allpermit or grant-related complianceinformation to determine theappropriate agency response;

(4) Maintaining a managementinformation system which supports thecompliance evaluation activities of thisPart; and

(5) Inspecting the facilities of all majordischargers at least annually.

§ 123.27 Requirements for enforcementauthority.

(a) Any State agency administering aprogram shall have available thefollowing remedies for violations ofState program requirements:

(1) To restrain immediately andeffectively any person by order or by-suit in State court from engaging in anyunauthorized activity which isendangering or causing damage topublic health or the environment;

[Note.-Paragraph (a)(1) requires thatStates have a mechanism (e.g., anadministrative cease and desist order or theability to seek a temporary restraining order)to stop any unauthorized activityendangering public health or theenvironment.]

(2) To sue in courts of competentjurisdiction to enjoin any threatened orcontinuing violation of any programrequirement, including permit ,conditions, without the necessity of aprior revocation of the permit;

(3) To assess or sue to recover in courtcivil penalties and to seek criminalremedies, including fines, as follows:

(i) Civil penalties shall be recoverablefor the violation of any NPDES permitcondition; any NPDES filingrequirement; any duty to allow or carryout inspection, entry or monitoringactivities; or, any regulation or ordersissued by the State Director. Thesepenalties shall be assessable in at least

the amount of $5,000 a day for eachviolation.. (ii) Criminal fines shall be recoverableagainst any person who willfully ornegligently violates any applicablestandards or limitations; any NPDESpermit condition; or any NPDES filingrequirement. These fines shall beassessable in at least the amount of$10,000 a day for each violation.

[Note.-States which provide the criminalremedies based on "criminal negligence,""gross negligence" or strict liability satisfythe requirement of paragraph (a)(3)tiii)[B) ofthis section.]

(iii) Criminal fines shall berecoverable against any person whoknowingly makes any false statement,representation or certification in anyNPDES form, in any notice or reportrequired by an NPDES permit, or whoknowingly renders inaccurate anymonitoring device or method required tobe maintained by the Director. Thesefines shall be recoverable in at least theamount of $5,000 for each instance ofviolation.

[Note.-In many States the State Directorwill be represented in State courts by theState Attorney General or other appropriatelegal officer. Although the State Director neednot appear in court actions he or she shouldhave power to request that any of the aboveactions be brought.]

(b)(1) The maximum civil penalty orcriminal fine (as providedin paragraph(a)(3) of this section) shall be assessablefor each instance of violation and, if theviolation is continuous, shall beassessable up to the maximum amountfor each day of violation.

(2) The burden of proof and degree ofknowledge or intent required underState law for establishing violationsunder paragraph (a)(3) of this section,shall be no greater than the burden of,proof or degree of knowledge or intentEPA must provide when it brings anaction under the appropriate Act;

[Note.-For example, this requirement isnot met if State law includes mental state asan element of proof for civil violations.]

(c) Any civil penalty assessed, soughtor agreed upon by the State Directorunder paragraph (a)(3) of this sectionshall be appropriate to the violaffion. 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 the litigationIf this civil penalty, together with thecosts of expeditious compliance, wouldbe so severely disproportionate to theresources of the violator as to jeopardizecontinuance in business, the payment of

.the penalty may be deferred or the

penalty may be forgiven in whole orpart, as circumstances warrant. In thecase of a penalty for a failure to meet astatutory or final permit compliancedeadline, "appropriate to the violation"as used in this paragraph, means apenalty which is equal to:

(1) An amount appropriate to redressthe harm or risk to public health or theenvironment; plus

(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 ofrecalcitrance, defiance, 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).

[Note.-In addition to the requirements ofthis paragraph, the State may have otherenforcement remedies. The followingenforcement options, while not mandatory,are highly recommended:

Procedures which enable the State toassess or to sue any persons responsible forunauthorized activities for any expensesincurred by the State in removing, correcting,or terminating any adverse effects uponhuman health and the environment resultingfrom the unauthorized activity, whether ornot accidental;

Procedures which enable the State to suefor compensation for any loss or destructionof wildlife, fish or aquatic life, or theirhabitat, and for any other damages caused byunauthorized activity, either to the State or toany residents of the State who are directlyaggrieved by the unauthorized activity, orboth; and• Procedures for the administrativeassessment of penalties by the Director.]

(d) Any State administering a programshall provide for public participation inthe State enforcement process byproviding either:

(1) Authority which allowsintervention as of right in any civil oradministrative action to obtain remediesspecified in paragraphs (a)(1), (2) or (3)of this section by any citizen having aninterest which is or may be adverselyaffected; or

(2) Assurance that the State agency orenforcement authority will:

(i) Investigate and provide writtenresponses to all citizen complaintssubmitted pursuant to the proceduresspecified in § 123.26(b)(4);

Rules and Regulations14182 Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983/



Federal Register / Vol. .48, No. 64 / Friday, April 1, 1983' / Rules and Regulations

(ii) Not oppose intervention by anycitizen when permissive interventionmay be authorized by statute, rule, orregulation; and

(iii) Publish notice of and provide atleast 30 days for public comment on anyproposed settlement.of a Stateenforcement action.

§ 123.28 Control of disposal of pollutantsInto wells.

State law must provide authority toissue permits to control the disposal of.pollutants into wells. Such authorityshall enable the State to protect thepublic health and welfare and to preventthe pollution of ground and surfacewaters by prohibiting well discharges orby issuing permits for such dischargeswith appropriate permit terms andconditions. A program approved undersection 1422 of SDWA satisfies therequirements of this section.

[Note.-States which are authorized toadminister the NPDES permit program undersection 402 of CWA are encouraged to relyon existing statutory authority, to the extentpossible, in developing a State UIC programunder section 1422 of SDWA. Section402(b)(1)(D) of CWA requires that NPDESStates have the authority "to issue permitswhich * * * control the disposal 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 from thedefinition of "pollutant." If the State'sstatutory authority contains a similarexclusion it may need to be modified toqualify for UIC program approval.]

§ 123.29 Prohibition.State permit programs shall provide

that no permit shall be issued when theRegional Administrator has objected inwriting under § 123.44.Subpart C-Transfer of Information

and Permit Review

§ 123.41 Sharing of Information.(a) Any information obtained or used

in the administration of a State programshall be available to EPA upon requestwithout restriction. If the informationhas been submitted to the State under aclaim of confidentiality, the State mustsubmit that claim to EPA whenproviding information under this section.Any ipformation obtained from a Stateand subject to a claim of confidefitialitywill be 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 shall furnish to States withapproved programs the information in

its files not submitted under a claim ofconfidentiality which the State needs toimplement its approved program. EPAshall furnish to States with approvedprograms information submitted to EPAunder a claim of confidentiality, whichthe State needs to implement itsapproved program, subject to theconditions in 40 CFR Part 2.

§ 123.42 Receipt and use of FederalInformation.

Upon approving a State permitprogram, EPA shall send to the Stateagency administering the permitprogram any relevant, information whichwas collected by EPA. TheMemorandum of Agreement under§ 123.24 shall provide for the following,in such manner as the State Director andthe Regional Administrator shall agree:

(a) Prompt transmission to the StateDirector from the RegionalAdministrator of copies of any pendingpermit applications or any otherrelevant information collected beforethe approval of the State permit programand not already in the possession of theState Director. When 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 StateDirector 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.

§ 123.43 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 Regional Administrator in theMemorandum of Agreement and notinconsistent with this Part. Proposedpermits shall be prepared by Stateagencies unless agreement to thecontrary has been reached under§ 123.44(j). The Memorandum ofAgreement shall provide for thefollowing:

(1) Prompt transmission to theRegional Administrator of a copy of allcomplete permit applicatiqns receivedby the State Director, except those forwhich permit review has been waivedunder § 123.24(d). The State shall supplyEPA with copies of permit applications

for which permit review has beenwaived whenever requested by EPA;

(2) Prompt transmission to theRegional Administrator of notice ofevery action taken by the State agencyrelated to the consideration of anypermit application or general permit,including a copy of each proposed ordraft permit and any conditions,requirements, or documents which arerelated to the proposed or draft permitor which affect the authorizaion of theproposed permit, except those for whichpermit review has been waived under§ 123.24(d). The State shall supply EPAwith copies of notices for which permitreview has been waived wheneverrequested by EPA; and

(3) Transmission to the RegionalAdministrator of a copy of every issuedpermit following issuance, along withany and all conditions, requirements, ordocuments which are related to or affectthe authorization of the permit.

(b) The State shall transmit a copy ofeach draft general permit or proposedgeneral permit, except those for separatestorm sewers, to the EPA Director,Office of Water Enforcement andPermits at the same time the draftgeneral permit or proposed generalpermit is transmitted to the RegionalAdministrator under paragraph (a)(2) ofthis section.

(c) The' State program shall providefor transmission by the State Director toEPA of:

(1) Notices from publicly ownedtreatment works under § 122.42(b) and40 CFR Part 403, upon request of theRegional Administrator;

(2) A copy of any significantcomments presented in writing pursuantto the public notice of a draft permit anda summary of any significant commentspresented at any hearing on any draftpermit, except those commentsregarding permits for which permitreview has been waived under§ 123.24(d) and for which EPA has nototherwise requested receipt, if:

(i) The Regional Administratorrequests this information; or

(ii) The'proposed permit containsrequirements significantly different fromthose contained in the tentativedetermination and draft permit; or

(iii) Significant comments objecting tothe tentative determination and draftpermit have been presented at thehearing or in writing pursuant to thepublic notice.

(d) Any State permit program shallkeep such records and submit to theAdministrator such information as theAdministrator may reasonably requireto ascertain whether the State program

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complies with the requirements of CWAor of this Part.

§ 123.44 EPA Review of and objections toState permits.

(a)(1) The Memorandum of Agreementshall provide a period of time (up to 90days from receipt of proposed permits)to which the Regional Administratormay make general comments upon,objections to, or recommendations withrespect to proposed permits. EPAreserves the right to take 90 days tosupply specific grounds for objection,notwithstanding any shorter periodspecified in the Memorandum ofAgreement, when a general objection isfiled within the review period specifiedin the Memorandum of Agreement. TheRegional Administrator shall send acopy of any comment, objection orrecommendation to the permit applicant.

(2) In the case of general permits, EPAshall have 90 days from the date of.receipt of the proposed general permit tocomment upon, object to or makerecommendations with respect to theproposed general permit, and is notbound by any shorter time limits set bythe Memorandum of Agreement forgeneral comments, objections orrecommendations. The EPA Director,Office of Water Enforcement andPermits may comment upon, object to, ormake recommendations with respect toproposed general permits, except thosefor separate storm sewers, ,pn EPA'sbehalf.

(b)(1) Within the period of timeprovided under the Memorandum ofAgreement for making generalcomments upon, objections to orrecommendations with respect toproposed permits, the RegionalAdministrator shall notify the StateDirector of any objection to issuance ofa proposed permit (except as providedin paragraph (a)(2) of this section forproposed general permits). Thisnotification shall set forth in writing thegeneral nature of the objection.

(2) Within 90 days following receipt ofa proposed permit to which he or shehas objected under (b)(1) of this section,or in the case of general permits within,0 days after receipt of the proposedgeneral permit, the RegionalAdministrator, or in the case of generalpermits other than for separate storm,ewers, the Regional Administrator or.he EPA Director, Office of WaterEnforcement and Permits, shall set forth*n writing and transmit to the StateDirector:

(i) A statement of the reasons for theobjection (including the section of CWAor regulations that support the)bjection), and

(ii) The actions that must be taken bythe State Director to eliminate theobjection (including the effluentlimitations and conditions which thepermit would include if it were issuedby the Regional Administrator.)

[Note.-Paragraphs (a) and (b) of thissection, in effect, modify any existingagreement between EPA and the State whichprovides less than 90 days for EPA to supplythe specific grounds for an objection.However, when an agreement provides for anEPA review period of less than 90 days, EPAmust file a general objection, in accordancewith paragraph (b)(1) of this section withinthe time specified in the agreement. Thisgeneral objection must be followed by aspecific objection within the 90-day period.This modification to MOA's allows EPA toprovide detailed information concerningacceptable permit conditions, as required bysection 402(d) of CWA. To avoid possibleconfusion, MOA's should be changed toreflect this arrangement.]

(c) The Regional Administrator's.objection to the issuance of a proposedpermit must be based upon one or moreof the following grounds:

(1) The permit fails to apply, or toensure compliance with, any applicablerequirement of this Part;

[Note.-For example, the RegionalAdministrator may object to a permit notrequiring the achievement of required effluentlimitations by applicable statutorydeadlines.].

(2) In the case of a proposed permitfor which notification to theAdministrator is required under section402(b)(5) of CWA, the writtenrecommendations of an affected Statehave not been accepted by thepermitting State and the RegionalAdministrator finds the reasons forrejecting the recommendations areinadequate;

(3) The procedures followed inconnection with formulation of theproposed permit failed in a materialrespect to comply with proceduresrequired by CWA or by regulationsthereunder or by the Memorandum ofAgreement;

(4) Any finding made by the StateDirector in connection with theproposed permit misinterprets CWA orany guidelines or regulations underCWA, or misapplies them to the facts;

(5) Any provisions of the proposedpermit relating to the maintenance ofrecords, reporting, monitoring, sampling,or the provision of any other informationby the permittee are inadequate, in thejudgment of the Regional Administrator,to assure compliance with permitconditions, including effluent standardsand limitations required by CWA, bythe guidelines and regulations issuedunder CWA, or by the proposed permit;

(6) In the case of any proposed permitwith respect to which applicableeffluent standards and limitations undersections 301, 302, 306, 307, 318, 403 and405 of CWA have not yet beenpromulgated by the Agency, theproposed permit, in the judgment of theRegional Administrator, fails to carryout the provisions of CWA or of anyregulations issued under CWA; theprovisions of this subparagraph apply todeterminations made pursuant to§ 125.3(c)(2) in the absence of applicableguidelines and to best managementpractices under section 304(e) of CWA,which must be incorporated into permitsas requirements under sections 301, 306,307, 318, 403 or 405, as the case may be;

(7) Issuance of the proposed permitwould in any other respect be outsidethe requirements of CWA, or regulationsissued under CWA.

(d) Prior to notifying the State Directorof an objection based upon any of thegrounds set forth in paragraph (b) of thissection, the Regional Administrator:

(1) Shall consider all data transmittedpursuant to § 123.43;

(2) May, if the information provided isinadequate to determine whether theproposed permit meets the guidelinesand requirements of CWA, request theState Director to transmit to theRegional Administrator the completerecord of the permit proceedings beforethe State, or any portions of the recordthat the Regional Administratordetermines are necessary for review. Ifthis request is made within 30 days ofreceipt of the State submittal under§ 123.43, it shall constitute an interimobjection to the issuance of the permit,and the full period of time specified inthe Memorandum of Agreement for theRegional Administrator's review shallrecommence when the RegionalAdministrator has received such recordor portions of the record; and

(3) May, in his or her discretion, andto the extent feasible within the periodof time available under theMemorandum of Agreement, afford tointerested persons an opportunity tocomment on the basis for the objection;

(e) Within 90 days of receipt by theState Director of an objection by theRegional Administrator, the State orinterstate agency or any interestedperson may request that a publichearing be held by the RegionalAdministrator on the objection. A publichearing in accordance with theprocedures of § § 124.12 (c) and (d) shallbe held, and public notice provided inaccordance with § 124.10, wheneverrequested by the State or the interstateagency which proposed the permit or if

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warranted by significant public interestbased on requests received.

(f) A public hearing held underparagraph (e) of this section shall beconducted by the RegionalAdministrator; and, at the RegionalAdministrator's discretion, with theassistance of an EPA panel designatedby the Regional Administrator," in anorderly and expeditious manner.

(g) Following the public hearing, theRegional Administrator shall reaffirmthe original objection, modify the termsof the objection, or withdraw theobjection, and shall notify the State ofthis decision.

(h)(1) If no public hearing is heldunder paragraph (e) of this section andthe State does not resubmit a permitrevised to meet the RegionalAdministrator's objection within 90 daysof receipt of the objection, the RegionalAdministrator may issue the permit inaccordance with Parts 121, 122, and 124of this chapter and any other guidelinesand requirements of CWA.

(2) If a public hearing is held underparagraph (e) of this section, theRegional Administrator does notwithdraw the objection, and the Statedoes not resubmit a permit revised tomeet the Regional Administrator's.objection or modified objection within30 days of the date of the RegionalAdministrator's notification underparagraph (g) of this section, theRegional Administrator may issue thepermit in accordance with Parts 121, 122,and 124 of this chapter and any otherguidelines and requirements of CWA.

(3) Exclusive authority to issue thepermit passes to EPA when the times setout in this paragraph expire.

(i) In the case of proposed generalpermits for discharges other than fromseparate storm sewers insert ' or theEPA Director, Office of WaterEnforcement and Permits" after"Regional Administrator" whenever itappears in paragraphs (c)-(h) of thissection.

(j) The Regional Administrator mayagree, in the Memorandum ofAgreement under § 123.24, to reviewdraft permits rather than proposedpermits. In such a case, a proposedpermit need not be prepared by theState and transmitted to the RegionalAdministrator for review in accordancewith this section unless theStateproposes to issue a permit which differsfrom the draft permit reviewed by theRegional Administrator, the RegionalAdministrator has objected to the draftpermit, or there is significant publiccomment.

§ 123.45 Noncompliance and programreporting by the Director.

The Director shall prepare quarterlyand annual reports as detailed below.When the State is the permit-issuingauthority, the State Director shall submitany reports required under this sectionto the Regional Administrator. WhenEPA is the permit-issuing authority, theRegional Administrator shall submit anyreport required under this section toEPA Headquarters.

(a) Quarterly reports. The Directorshall submit quarterly narrative reportsfor major facilities as follows:

(1) Format. The report shall use thefollowing format:

(i) Provide a separate list on NPDESpermittees which shall besubcategorized as non-POTWs, POTWs,and Federal permittees; .

(ii) For facilities or activities withpermits under more than one program,provide an additional listing combininginformation on noncompliance for eachsuch facility;

(iii) Alphabetize each list by permitteename. When two or more permitteeshave the same name, the lowest permitnumber shall be entered first.

(iv) For each entry on a list, includethe following information in thefollowing order:

(A) Name, location, and permit -number of the noncomplying permittee.

(B) A brief description and date ofeach instance of noncompliance for thatpermittee. Instances of noncompliancemay include one or more of the kinds setforth in paragraph (a)(2) of this section.When a permittee has noncompliance ofmore than one kind under a singleprogram, combine the information into asingle entry for each such permittee.

(C) The date(s) and a brief descriptionof the action(s) taken by the Director toensure compliance.

(D) Status of the instance(s) ofnoncompliance with the date of thereview of the status or the date ofresolution.

(E) Any details which tend to explainor mitigate the instance(s) ofnoncompliance.

(2) Instances of noncompliance to bereported. Any instances ofnoncompliance within the followingcategories shall be reported insuccessive reports until thenoncompliance is reported as resolved.Once noncompliance is reported asresolved it need not appear insubsequent reports.

(i) Failure to complete constructionelements: When the permittee has failedto complete, by the date specified in thepermit, an element of a complianceschedule involving either planning forconstruction (for example, award of a

contract, preliminary plans), or aconstruction step (for example, beginconstruction, attain operation level): andthe permittee has not returned tocompliance by accomplishing therequired element of the schedule within30 days from the date a complianceschedule report is due under the permit.

(ii) Modifications to schedules ofcompliance: When a schedule ofcompliance in the permit has beenmodified under §§ 122.62 or 122.64because of the permittee'snoncompliance.

(iii) Failure to complete or providecompliance schedule or monitoringreports: When the permittee has failedto complete or provide a report requiredin a permit complihce schedule (forexample, progress reports or notice ofnoncompliance or compliance) or amonitoring report; and the permittee hasnot submitted the complete reportwithin 30 days from the date it is dueunder the permit for complianceschedules, or from the date specified inthe permit for monitoring reports.

(iv) Deficient reports: When therequired reports provided by thepermittee are so deficient as to causemisunderstanding by the Director andthus impede the review of the status ofcompliance.

(v) Noncompliance with other permitrequirements: Noncompliance shall bereported in the following circumstances:

(A] Whenever the permittee hasviolated a permit requirement (otherthan paragraph (a)(2) (i) or (ii) of thissection), and has not returned tocompliance within 45'days from the datereporting of noncompliance was dueunder the permit, or

(B) When the Director determines thata pattern of noncompliance exists for amajor facility permittee over the mostrecent four consecutive reportingperiods. This pattern of noncomplianceis based on violations of monthlyaverages and excludes parameters forwhich there is continuous monitoring.This pattern includes any violation ofthe same requirement in twoconsecutive reporting periods, and anyviolation of one or more requirements ineach of four consecutive reportingperiods; or

(C) When the Director determinessignificant permit noncompliance orother significant event has occurred,such as a discharge of a toxic orhazardous substance by an NPDESfacility..

(vi) All other. Statistical informationshall be reported quarterly on all otherinstances of noncompliance by majorfacilities with permit requirements not

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otherwise reported under paragraph (a]of this section.

(b) Annual reports for NPDES.(1) Annual noncompliance report.

Statistical reports shall be submitted bythe Director on nonmajor NPDESpermittees indicating the total numberreviewed, the number of noncomplyingnonmajor permittees, the number ofenforcement actions, and number ofpermit modifications extendingcompliance deadlines. The statisticalinformation shall be organized to followthe types of noncompliance listed inparagraph (a) of this section.

(2] A separate list of nonmajordischarges which are one or more yearsbehind in construction phases of thecompliance schedule shall also besubmitted in alphabetical order by nameand permit number.

(c) Schedule.(1) For all quarterly reports. On the

last working day of May, August,November, and February, the StateDirector shall submit to the RegionalAdministrator information concerningnoncompliance with NPDES permitrequirements by major dischargers inthe State in acordance with thefollowing schedule. The RegionalAdministrator shall prepare and submitinformation for EPA-issued permits toEPA Headquarters in accordance withthe same schedule:

QUARTERS COVERED BY REPORTS ONNONCOMPLIANCE BY MAJOR DISCHARGERS

[Date for completion of reports)January, February, and 'May 31

March.April, May, and June ............ August 31July, August, and September... 'Novembor 30October, November, and De- February 28

cember.

Reports must be made available' to the public for inspec-tion and copying on this date.

(2) For all annual reports. The periodfor annual reports shall be for thecalendar year ending December 31, withreports completed and available to thepublic no more than 60 days later.Subpart D-Program Approval,

Revision, and Withdrawal

§ 123.61 Approval process.(a] 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 all persons on appropriateState and EPA mailing lists and allpermit holders and applicants within theState. The notice shall:

(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 when 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.

(b) Within 90 days of the receipt of acomplete program submission under§ 123.21 the Administrator shall approveor disapprove the program based on therequirements of this Part and of 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 andexplains the Agency's response to thesecomments.

(c) If the Administrator approves theState's program he or she shall notifythe State and publish notice in theFederal Register. The RegionalAdministrator shall suspend theissuance of permits by EPA as of thedate of program approval.

(d) If the Administrator disapprovesthe State program he or she shall notifythe State of the reasons for disapprovaland of any revisions or modifications tothe State program which are necessaryto obtain approval.

§ 123.62 Procedure for revision of Stateprograms.

(a) Either EPA or the approved Statemay initiate program revision. Programrevision may be necessary when thecontrolling Federal or State statutory orregulatory authority is modified orsupplemented. The State shall keep EPAfully informed of any proposedmodifications to its basic statutory orregulatory authority, its forms,procedures, or priorities.

(b) Revision of a State program shallbe accomplished as follows:(1) The State shall submit a modifiedprogram description, Attorney General'sstatement, Memorandum of Agreement,or such other documents as EPA

determines to be necessary under thecircumstances.

(2) Whenever EPA determines that theproposed program modification issubstantial, EPA shall issue publicnotice and provide an opportunity tocomment for a period of at least 30 days.The public notice shall be mailed tointerested persons and shall bepublished in the Federal Register and inenough of the largest newspapers in theState to provide Statewide coverage.The public notice shall summarize theproposed revisions and provide for theopportunity to request a public hearing.Such a hearing will be held if there issignificant public interest based onrequests received.

(3) The Administrator shall approve ordisapprove program revisions based onthe requirements of this Part and of theCWA.

(4) A program revision shall becomeeffective upon the approval of theAdministrator' Notice of approval of anysubstantial revision shall be publishedin the Federal Register. Notice ofapproval of non-substantial programrevisions may be given by a letter fromthe Administrator to the State Governoror his designee.

(c) States with approved programsshall notify EPA whenever they proposeto transfer all or part of any programfrom the approved State agency to anyother State agency, and shall identifyany new division of responsibilitiesamong the agencies involved. The newagency is not aithorized to administerthe program until approved by theAdministrator under paragraph (b) ofthis section. Organizational chartsrequired under § 123.22(b) shall berevised and resubmitted.

(d) Whenever the'Administrator hasreason to believe that circumstanceshave changed with respect to a Stateprogram, he may request, and the Stateshall provide, a supplemental AttorneyGeneral's statement, programdescription, or such other documents orinformation as are necessary.

(e) All new programs must complywith these regulations immediately uponapproval. Any approved State section402 permit program which requiresrevision to conform to this Part shall beso revised within one year of the date ofpromulgation of these regulations,unless a State must amend or enact astatute in order to make the requiredrevision of State programs in which casethe revision shall take place within twoyears, except that revision of Stateprograms to implement the requirementsof 40 CFR Part 403 (pretreatment) shallbe accomplished as provided in 40 CFR403.10. In addition, approved States

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shall submit, within 6 months, copies oftheir permit forms for EPA review andapproval. Approved States shall alsoassure that permit applicants, other thanPOTWs, either (1) whose permits.expireafter November 30, 1980, or (2) whosepermits expire before November 30, 1980and who have not reapplied for a permitprior to April 30, 1980, submit, as part oftheir application, the informationrequired under § 122.21 (d) and (h), asappropriate.

§ 123.63 Criteria for withdrawal of Stateprograms.

(a) The Administrator may withdrawprogram approval when a State programno 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; or

(ii) Action by a State legislature orcourt striking down or limiting Stateauthorities.

(2) Where the operation of the Stateprograni 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) Issuance of permits which do notconform to the requirements of this Parteor

(iii) Failure to comply with the publicparticipation requirements of this Part.

(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 adequateenforcement penalties or to collectadministrative fines when imposed; or

(iii) Failure to inspect and monitoractivities subject to regulation.

(4) Where the State program fails tocomply with the terms of theMemorandum of Agreement requiredunder § 123.24.

§ 123.64 Procedures for withdrawal ofState programs.

(a) A state with a program approvedunder this Part may voluntarily transferprogram responsibilities required byFederal law to EPA by taking thefollowing actions, or in such othermanner as may be agreqd upon with theAdministrator.

(1) The State shall give theAdministrator 180 days notice of theproposed transfer and shall submit a

plan for the orderly transfer of allrelevant program information not in thepossession of EPA (such as permits,permit files, compliance files, reports,permit applications) which arenecessary for EPA to administer theprogram.

(2) Within 60 days of receiving thenotice and transfer plan, theAdministrator shall evaluate the State'stransfer plan and shall identify any -additional information needed by theFederal government for programadministration and/or identify any otherdeficiencies in the plan.

(3) At least 30 days before the transferis to occur the Administrator shallpublish notice of the transfer in theFederal Register and in enough of thelargest newspapers in the State toprovide Statewide coverage, and shallmail notice to all permit-holders, permitapplicants, other regulated persons andother interested persons on appropriateEPA and State mailing lists.

(b) The following procedures applywhen the Administrator orders thecommencement of proceedings todetermine whether to withdrawapproval of a State program.

(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 as set forth in § 123.63. TheAdministrator shall respond in writingto any petition to commence withdrawalproceedings. He may conduct aninformal investigation of the allegationsin the petition to determine whethercause exists to commence proceedingsunder 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 Statewhich 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 hearing under thisparagraph.

(2) Definitions. For purposes of thisparagraph the definitions of "Act,""Administrative Law Judge," "HearingClerk," and "Presiding Officer" in 40CFR 22.03 apply in addition to thefollowing:

(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 organization

having an interest in the subject matterof the proceeding.

(iii) "Petitioner" means any personwhose petition for commencement ofwithdrawal proceedings has beengranted by the Administrator.

(3) Procedures. (i) The followingprovisions of 40 CFR Part 22(Consolidated Rules of Practice) areapplicable to proceedings under thisparagraph:

(A) § 22.02-(use of number/gender);(B) § 22.04(c)-(authorities of

Presiding Officer):(C) § 22.0&--(filing/service of rulings

and orders);(D) § 22.09-(examination of filed

documents):(E) § 22.19(a), (b) and (c)-(prehearing

conference);(F) § 22.22-(evidence);(G) § 22.23-(objections/offers of

proof);(H) § 22.25-(filing the transcript); and(I) § 22.26-(findiiigs/conclusions).(ii) The following provisions are also

applicable:(A) Computation and extension of

time.(1] Computation. In computing any

period of time prescribed or allowed inthese rules of practice, except asotherwise provided, the day of the eventfrom which the designated period beginsto run shall not be included. Saturdays,Sundays, and Federal legal holidaysshall be included. When a stated timeexpires on a Saturday, Sunday, or legalholiday, the stated time period shall beextended to include the next businessday.

(2) Extensions of time. TheAdministrator, Regional Administrator,or Presiding Officer, as appropriate, maygrant an extension of time for -the filingof any pleading, document, or motion (i)upon timely motion of a party to theproceeding, for good cause shown, andafter consideration of prejudice to otherparties, or (h) upon his own motion.Such a motion by a party may only bemade after notice to all other parties,unless the movant can show good causewhy serving notice is impracticable. Themotion shall be filed.in advance of thedate on which the pleading, document ormotion is due to be filed, unless thefailure of a party to make timely motionfor extension of time was the result ofexcusable neglect.

(3) The time for commencement of thehearing shall not be extended beyondthe date set in the Administrator's orderwithout approval of the Administrator.

(B) Ex parte discussion of proceeding.At no time after the issuance of the

order commencing proceedings shall theAdministrator, Regional Administrator,

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Judicial Officer, Regional JudicialOfficer, Presiding Officer, or any otherperson who is likely to advise theseofficials in the decision on the case,discuss ex parte the merits of theproceeding with any interested personoutside the Agency, with any Agencystaff member who performs aprosecutorial er investigative function insuch proceeding or a factually relatedproceeding, or with any representativeof such person. Any ex partememorandum or other communicationaddressed to the Administrator,Regional Administrator, Judicial Officer,Regional Judicial Officer, or thePresiding Officer during the pendency ofthe proceeding and relating to the meritsthereof, by or on behalf of any partyshall be regarded as argument made inthe proceeding and shall be served uponall other parties. The other parties shallbe given an opportunity to reply to suchmemorandum or communication.

(C) Intervention.(1) Motion. A motion for leave to

intervene in any proceeding conductedunder these rules of practice must setforth the grounds for the proposedintervention, the position and interest ofthe movant and the likely impact thatintervention will have on theexpeditious progress of the proceeding.Any person already a party to theproceeding may file an answer to amotion to intervene, making specificreference to the factors set forth in theforegoing sentence and paragraph(b)(3)(ii)(C)(3) of this section, within ten(10] days after service of the motion forleave to intervene.

(2) However, motions to intervenemust be filed within 15 days from thedate the notice of the Administrator'sorder is first published.

(3) Disposition. Leave to intervenemay be granted only if the movantdemonstrates that (J) his presence in theproceeding would not unduly prolong orotherwise prejudice that adjudication ofthe rights of the original parties; (i] themovant will be adversely affected by afinal order; and (iii) the interests of themovant are not being adequatelyrepresented by the original parties. Theintervenor shall become a full party tothe proceeding upon the granting ofleave to intervene.

(4) Amicus curiae. Persons not partiesto the proceeding who wish to file briefsmay so move. The motion shall identifythe interest of the applicant and shallstate the reasons why the proposedamicus brief is desirable. If the motion isgranted, the Presiding Officer orAdministrator shall issue an ordersetting the time for filing such brief. Anamicus curiae is eligible to'participate inany briefing after his motion is granted,

and shall be served with all briefs, replybriefs, motions, and orders relating toissues to be briefed.

(D) Motions.(1) General. All motions, except those

made orally on the record during ahearing, shall (i) be in writing; (i) statethe grounds therefor with particularity;(ii) set forth the relief or order sought;and (iv) be accompanied by anyaffidavit, certificate, other evidence, orlegal memorandum relied upon. Suchmotions shall be served as provided by(b)(4) of this section.

(2) Response to motions. A party'sresponse to any written motion must befiled within ten (10) days after service ofsuch motion, unless additional time isallowed for such response. The responseshall be accompanied by any affidavit,certificate, other evidence, or legalmemorandum relied upon. If noresponse is filed within the designatedperiod, the parties may be deemed tohave waived any.objection to thegranting of the motion. The PresidingOfficer, Regional Administrator, orAdministrator, as appropriate, may set ashorter time for response, or make suchother orders concerning the dispositionof motions as they deem appropriate.

(3) Decision. The Administrator shallrule on all motions filed or made afterservice of the recommended decisionupon the parties. The Presiding Officershall rule on all other motions. Oralargument on motions will be permittedwhere the Presiding Officer, RegionalAdministrator, or the Administratorconsiders it necessary or desirable.

(4) Record ofproceedings. (i) Thehearing shall be either stenographicallyreported verbatim or tape recorded, andthereupon transcribed by an officialreporter designated by the PresidingOfficer:

(ii) All orders issued by the PresidingOfficer, transcripts of testimony, writtenstatements of position, stipulations,exhibits, motions, briefs, and otherwritten material of any kind submittedin the hearing shall be a part of therecord and shall be available forinspection or copying in the Office of theHearing Clerk, upon payment of costs.Inquiries may be made at the Office ofthe Administrative 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 whichinvolves 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 submission shall beserved by the person making thesubmission upon the Presiding Officer

and each party of record. Service underthis paragraph shall take place by mailor personal delivery;

(vi) Every submission shall beaccompanied by.an acknowledgementof service by the person served or proofof service in the form of 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/her position on theissues within such limits and on suchconditions as may be fixed by thePresiding Officer, but he/she 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 proposed'findings and conclusions, and replybriefs, the Presiding Officer shallevaluate the record before him/her, theproposed findings and conclusions andany briefs filed by the parties and shallprepare a recommended decision, andshall certify the entire record, includingthe recommended decision, to theAdministrator.

(ii) Copies of the recommendeddecision shall be 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 asupporting brief.

(8) Decision by Administrator. (i)Within 60 days after the certification ofthe record and filing of the PresidingOfficer's recommeded decision, theAdministrator shall review the recordbefore him and issue his own decision.

(ii) If the Administrator concludes thatthe State has administered the programin conformity with the appropriate Actand regulations his decision shallconstitute "final agency action" within.the meaning of 5 U.S.C. 704.

(iii) If the Administrator concludesthat the State has not administered the

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program in conformity with theappropriate Act and regulations he shalllist the deficiencies in the program andprovide the State a reasonable time, notto exceed 90 days, to take suchappropriate'corrective action as theAdministrator determines~necessary.

(iv) Within the time prescribed by theAdministrator the State shall take suchappropriate corrective action asrequired 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 sfatement thereof within thetime prescribed by the Administrator,the Administrator 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.

(viii) Withdrawal of authorizationunder this section and the appropriateAct does not relieve any person fromcomplying with the requirements of"State law, nor does it affect the validityof actions by the State prior toWithdrawal.

Part 144 is added to read as follows:PART 144-UNDERGROUND

INJECTION CONTROL PROGRAM

Subpart A-General Provisions

Sec.144.1 Purpose and scope of Part 144.144.2 Promulgation of Class II Programs for

Indian lands.144.3 Definitions.144.4 Considerations under Federal law.144.5 Confidentiality of information.144.6 Classification of wells.144.7 Identification of underground sources

of drinking water and exempted aquifers.144.8 Noncompliance and program reporting

by the Director.

Subpart B-General Program Requirements144.11 Prohibition of unauthorized injection.144.12 Prohibition of movement of fluid into

underground sources of drinking water.144.13 Elimination of certain class IV wells.144.14 Requirements for wells injecting

hazardous waste.144.15 Assessment of Class V wells.144.16 Waiver of requirement by Director.

Subpart C-Authorization of UndergroundInjection by RuleSec.144.21 Existing Class 1, 11 (except enhanced

recovery and hydrocarbon storage) andIII wells.

144.22 Existing Class II enhanced recoveryand hydrocarbon storage wells.

144.23 Clhss IV wells.144.24 Class V wells.144.25 Requiring a permit.144.26 Inventory requirements.

Subpart D-Authorization by Permit144.31 Authorization for a permit;

authorization by permit.144.32 Signatories to permit application and

reports.144.33 Area permits.144.34 Emergency permits.144.35 Effect of a permit.

.144.36 Duration of permits.144.37 Continuation of expiring permits.144.38 Transfer of permits.144.39 Modification or revocation and

reissuance of permits.144.40 Termination of permits.144.41 Minor modifications of permits.

Subpart E-Permit Conditions144.51 Conditions applicable to all permits.144.52 Establishing permit conditions.144.53 Schedule of Compliance.144.54 Requirements for recording and

reporting of monitoring results.144.55 Corrective action.

Authority: Pub. L. 93-523, as amended byPub. L. 95-190, Pub. L. 96-63 and Pub. L. 96-502, 42 USC 300f et seq.

Subpart A-General Provisions§ 144.1 Purpose and scope of Part 144.

(a) Contents of Part 144. Theregulations in this Part set forthrequirements for the UndergroundInjection Control (UIC) Programpromulgated under Part C of the SafeDrinking Water Act (SDWA) (Pub. L. 95-523, as amended by Pub. L. 95-190, 42U.S.C. 300f et seq.) and, to the extentthat they deal with hazardous waste, theResource Conservation and RecoveryAct (RCRA] (Pub. L. 94-580 as amendedby Pub. L. 95-609, Pub. L. 96-510, 42U.S.C. 6901 et seq.). They apply to EPA,and to approved States to the extent setforth in Part 145.

(b) Authority.(1) Section 1421 of SDWA requires the

Administrator to promulgate regulationsestablishing minimum requirements foreffective UIC programs.

(2) Section 1422 of SDWA requires theAdministrator to list in the FederalRegister "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 programsin the absence of an approved Stateprogram in a listed State.

(3) Section 1423 of SDWA providesprocedures for EPA enforcement of UICrequirements.

(4) Section 1431 authorizes theAdministrator to take action to protectthe health of persons When acontaminant which is present in or mayenter a public water system may presentan imminent and substantialendangerment to the health of persons.

(5) Section 1445 of SDWA authorizesthe promulgation of regulations for suchrecordkeeping, reporting, and monitoringrequirements "as the Administrator mayreasonably require * * * to assist him inestablishing regulations under this title,"and a "right of entry and inspection todetermine compliance with this title,including for this purpose, inspection, atreasonable time,. or records, files,papers, processes, controls, andfacilities * *. .

(6) Section 1450 of SDWA authorizesthe Administrator "to prescribe suchregulations as are necessary orappropriate to carry out his functions"under SDWA.

(c) Overview of the UIC program. AnUIC program is necessary in any Statelisted by EPA under section 14,22 of theSDWA. Because all States have beenlisted, the SDWA requires all States tosubmit an UIC program within 270 daysafter July 24, 1980, the effective date of40 CFR Part 146, which was the finalelement of the UIC minimumrequirements to be originallypromulgated, unless the Administratorgrants an extension, which can be for aperiod not to exceed an additional 270days. If a State fails to submit anapprovable program, EPA will establisha program for that State. Once aprogram is established, SDWA providesthat all underground injections in listedStates are unlawful and subject topenalties unless authorized by a permit

'K or a rule. This Part sets forth therequirements governing all UICprograms, authorizations by permit orrule and prohibits certain types ofinjection. The technical regulationsgoverning these authorizations appear in40 CFR Part 146.

(d) Structur-e of the UIC Program.(1) Part 144. This part sets forth the

permitting and other programrequirements that must be met by UICPrograms, whether run by a State or byEPA. It is divided into the followingsubparts:

(i) Subpart A describes generalelements of the program, includingdefinitions and classifications.

(ii) Subpart B sets forth the generalprogram requirements, including theperformance standards applicable to allinjection activities, basic elements that

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all UIC programs must contain, andprovisions for waiving permit of rulerequirements under certaincircumstances.

(iii) Subpart C sets forth requirementsfor wells authorized by rule.

(iv) Subpart D sets forth permitting'procedures.

(v) Subpart E sets forth specificconditions, or types of conditions, thatmust at a minimum be included in allpermits.

(2) Part 145. While Part 144 sets forthminimum requirements for all UICPrograms, these requirements arespecifically indentified as elements of aState application for primacy toadminister an UIC Program in Part 145.Part 145 also sets forth the necessaryelements of a State submission and theprocedural requirements for approval ofState programs.

(3) Part 124. The public participationrequirements that must be met by UICPrograms, whether administered by theState or by EPA, are set forth in Part124. EPA must comply with all Part 124requirements; State administeredprograms must comply with Part 124 asrequired by Part 145. Theserequirements carry out the purposes ofthe public participation requirement of40 CFR Part 25 (Public Participation),and supersede the requirements of thatPart as they apply to the UIC Program.

(4) Part 146. This part set forth thetechnical criteria and standards thatmust be met in permits andauthorizations by rule as required byPart 144.

(e) Scope of the Permit or RuleRequirement.

The UIC Permit Program regulatesunderground injections by five classesof wells (see definition of "wellinjection," § 144.3). The five classes ofwells are set forth in § 144.6. All ownersor operators of these injection wellsmust be authorized either by permit orrule by the Director. In carrying out themandate of the SDWA, this subpartprovides that no injection shall beauthorized by permit or rule if it resultsin the movement of fluid containing anycontaminant into Underground Sourcesof Drinking Water (USDWs-see § 144.3for definition), if the presence of thatcontaminant may cause a violation ofany primary drinking water regulationunder 40 CFR Part 142 or may adverselyaffect the health of persons (§ 144.12).Existing Class IV wells which injecthazardous waste directly into anunderground source of drinking waterare to be eliminated over a period of sixmonths and new such Class IV wells areto be prohibited (§ 144.13). Class V wellswill be inventoried and assessed and

regulatory action will be established ata later date.

In the meantime, if remedial actionappears necessary, an individual permitmay be required (§ 144.25) or theDirector must require remedial action orclosure by order (§ 144.12(c)). DuringUIC program development, the Directormay identify aquifers and portions ofaquifers which are actual or potentialsources of drinking water. This willprovide an aid to the Director incarrying out his or her duty to protect allUSDWs. An aquifer is a USDW if it fitsthe definition, even if it has not been"identified." The Director may alsodesignate "exempted aquifers" usingcriteria in § 146.04. Such aquifers arethose which would otherwise qualify as"underground sources of drinkingwater" to be protected, but which haveno real potential to be used as drinkingwater sources. Therefore, they are notUSDWs. No aquifer is an "exemptedaquifer" until it has been affirmativelydesignated under the procedures in§ 144.7. Aquifers which do not fit thedefinition of "underground sources ofdrinking water" are not "exemptedaquifers." They are simply not subject tothe special protection afforded USDWs.

(1) Specific inclusions. The followingwells are included among those types byinjection activities which are covered bythe UIC regulations. (This list is notintended to be exclusive but is forclarification only.)

(i) Any injection well located on adrilling platform inside the State'sterritorial waters.

(ii) Any dug hole or well that is deeperthan its largest surface dimension,where the principal function of the holeis emplacement of fluids.

(iii) Any septic tank or cesspool usedby generators of hazardous waste; or byowners or operators of hazardous wastemanagement facilities, to dispose offluids containing hazardous waste.

(iv) Any septic tank, cesspool, or otherwell used by a multiple dwelling,community, or Regional system for theinjection of wastes.

(2) Specific exclusions. The followingare not covered by these regulations:

(i) Injection wells located on a drillingplatform or other site that is beyond theState's territorial waters.

(ii) Individual or single familyresidential waste disposal systems suchas domestic cesspools or septic systems.

(iii) Non-residential cesspools, septicsystems or similar waste disposalsystems if such systems (A) are usedsolely for the disposal of sanitary waste,and (B) have the capacity to serve fewerthan 20 persons a day.

(iv) Injection wells used for injectionof hydrocarbons which are of pipeline

quality and are gases at standardtemperature and pressure for thepurpose of storage.

(it) Any dug hole which is not used foremplacement of fluids underground.

(3) The prohibition applicable to ClassIV wells under § 144.13 does not applyto injections of hazardous wastes intoaquifers or portions thereof which havebeen exempted pursuant to § 146.04.

§ 144.2 Promulgation of Class II Programsfor Indian Lands.

. Notwithstanding the requirements ofthis Part or Parts 124 and 146 of thischapter, the Administrator maypromulgate an alternate UIC Programfor Class II wells on any Indianreservation or Indian lands. Inpromulgating such a program theAdministrator shall consider thefollowing factors:

(a) The interest and preferences of thetribal government having responsibilityfor the given reservation or Indian lands;

(b) The consistency between thealternate program and any program ineffect in an adjoining jurisdiction; and

(c) Such other factors as are necessaryand appropriate to carry out the SafeDrinking Water Act.

§ 144.3 Definitions.Terms not definedin this sectipn have

the meaning given by the appropriateAct. When a defined term appears in adefinition, the defined term is sometimesplaced within quotation marks *as an aidto readers.


Application means the EPA standardnational forms for applying for a permit,including any additions, revisions ormodifications to the forms; or formsapproved by EPA for use in approvedStates, including any approvedmodifications or revisions.

Appropriate Act and regulationsmeans the Solid Waste Disposal Act, asamended by the Resource Conservationand Recovery Act (RCRA); or SafeDrinking Water Act (SDWA), whicheveris applicable; and applicable regulationspromulgated under those statutes.

Approved Stqte Program means aState UIC program administered by theState that has been approved by EPAaccording to SDWA § 1422.

Aquifer means a geological"formation," group of formations, or partof a formation that is capable of yieldinga significant amount of water to a wellor spring.

Area of Review means the areasurrounding an injection well described

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according to the criteria set forth in§ 146.06 or in the case of an area permit,the project area plus a circumscribingarea the width of which is either 4 of amile or a number calculated accordingto the criteria set forth in § 146.06.

Contaminant means any physical,chemical, biological, or radiologicalsubstance or matter in water.

Director means the RegionalAdministrator, the Administrator ofEPA, or the State Director, as thecontext requires, or an authorizedrepresentative. When there is noapproved State program, and there is auEPA administered program, "Director"means the Regional Administrator.When there is an approved Stateprogram, "Director" normally means theState Director.In some circumstances, however, EPAretains the authority to take certainactions even when there is an approvedState program. In such cases, the term"Director" means the RegionalAdministrator and not the StateDirector.

Draft permit means a documentprepared under § 124.6 indicating theDirector's tentative decision to issue ordeny, modify, revoke and reissue,terminate, or reissue a "permit." Anotice of intent to terminate a permit,and a notice of intent to deny a permit,as discussed in § 124.5 are types of"draft permits." A denial of a request formodification, revocation and reissuance,or termination, as discussed in § 124.5 isnot a "draft permit."

Drilling mud means a heavysuspension used in drilling an "injectionwell," introduced down the drill pipeand through the drill bit.

Emergency permit means a UIC"permit" issued in accordance with§ 144.34.

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

EPA means the United States"Environmental Protection Agency."

Exempted aquifer means an "aquifer"or its portion that meets the criteria inthe definition of "underground source ofdrinking water" but which has beenexempted according to the procedures in§ 144.7.

Existing injection well means an"injection well" other than a "newinjection well."

Facility or activity means any UIC"injection well," or an other facility oractivity that is subject to regulationunder the UIC program..

Fluid means any material orsubstance which flows or moveswhether in a semisolid, liquid, sludge,gas, or any other form or state.

Formation means a body ofconsolidated or unconsolidated rockcharacterized by a degree of lithologichomnogeneity which is prevailingly, butnot necessarily, tabular and is mappableon the earth's surface or traceable in thesubsurface.

Formation fluid means "fluid" presentin a "formation" under naturalconditions as opposed to introducedfluids, such as "drilling mud."

Generator means any person, by sit6location, whose act or process produceshazardous waste identified or listed in40 CFR Part 261.

Ground water means water below theland surface in a zone of saturation.

Hazardous waste means a hazardouswaste as defined in 40 CFR 261.3.

Hazardous Waste Managementfacility ("HWM facility") means allcontiguous land, and structures, other'appurtenances, and improvements onthe land used for treating, storing, ordisposing of hazardous waste. A facilitymay consist of several treatment,storage, or disposal operational units(for example, one or more landfills,surface impoundments, or combinationof them).

HWMfacility means "HazardousWaste Management facility"

Injection well means a "well" intowhich "fluids" are being injected.

Injection zone means a geological"formation" group of formations, or partof a formation receiving fluids through a"well."

Interstate agency means an agency oftwo 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 administratorunder the "appropriate Act andregulations."

Major facility means any UIC "facilityor activity" classified as such by theRegional Administrator, or, in the caseof approved State programs, theRegional Administrator in conjunctionwith the State Director.

Manifest means the shippingdocument originated and signed by the"generator" which contains theinformation required by Subpart B of 40CFR Part 262.

New injection wells means an"injection well" which began injectionafter a UIC programfor the Stateapplicable to the well is approved orprescribed.

Owner or operator means the owneror operator of any "facility or activity"subject to regulation under the UICprogram.

Permit means an authorization,license, or equivalent control documentissued by EPA or an approved State toimplement the requirements of this Part,Parts 145, 146 and 124. "Permit" includesan area permit (§ 144.33) and anemergency permit (§ 144.34). Permit doesnot include UIC authorization by rule(§ 144.21), or any permit which has notyet been the subject of final agencyaction, such as a "draft permit."


Plugging means the act or process ofstopping the flow of water, oil or gasinto or out of a formation through aborehole or well penetrating thatformation.

Project means a group of wells in asingle operation.

Radioactive Waste means any wastewhich contains radioactive material inconcentrations which exceed thoselisted in 10 CFR Part 20, Appendix B,Table II, Column 2.

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, Pub. L. 96-510, 42U.S.C. 6901 et seq.).

RegionalAdministrator means theRegional Administrator of theappropriate Regional Office of theEnvironmental Protection Agency or theauthorized representative of theRegional Administrator.

Schedule of compliance means aschedule of remedial measures includedin a "permit," including an enforceablesequence of interim requirements (forexample, actions, operations, ormilestone events) leading to complianceWith the "appropriate Act andregulations."

SDWA means the Safe DrinkingWater Act (Pub. L. 93-523, as amendedby Pub. L. 96-502; 42 U.S.C. 300f et seq.).

Site means the land or water areawhere any "facility or activity" isphysically located or conducted,including adjacent land used inconnection with the facility or activity.

State means any of the 50 States, theDistrict of Columbia, Guam, theCommonwealth of Puerto Rico, theVirgin Islands, American Samoa, theTrust Territory of the Pacific Islands andthe Commonwealth Northern MarianaIslands.

State Director means the chiefadministrative officer of any State orinterstate agency operating.an approvedprogram, or delegated representative ofthe State Director. If responsibility isdivided among two or more State or

14191'




interstate agencies, "State Director"means the chief administrative officer ofthe State or interstate agency authorizedto perform the particular procedre orfunction to which reference is made.

State/EPA Agreement means anagreement between the RegionalAdministrator and the State whichcoordinates EPA and State activities,responsibilities and programs.

Stratum (plural strata) means a singlesedimentary bed or layer, regardless ofthickness, that consists of generally thesame kind of rock material.

Total dissolved solids means the totaldissolved (filterable) solids asdetermined by use of the methodspecified in 40 CFR Part 136.

UIC means the Underground InjectionControl program under Part C of theSafe Drinking Water Act, including an"approved State program."

Underground injection means a "wellinjection."

Underground source of drinking water(USDW) means an aquifer or its portion:

(a)(1) Which supplies any publicwater system; or

(2) Which contains a sufficientquantity of ground water to supply apublic water system; and

(i) Currently supplies drinking waterfor human consumption; or

(ii) Contains fewer than 10,000 mg/ltotal dissolved solids; and

(b) Which is not an exempted aquifer.USDW means "underground source of

drinking water."Well means a bored, drilled or driven

shaft, or a dug hole, whose depth isgreater than the largest surfacedimension.

Well injection means the subsurfaceemplacement of "fluids" through abored, drilled, or driven "well;" orthrough a dug well, where the depth of.the dug well is greater than the largestsurface dimension.

§ 144.4 Considerations under Federal law.Permits shall be issued in a manner

and shall contain conditions consistentwith requirements of applicable Federallaws. These laws may include:

(a) The Wild and Scenic Rivers Act,16 U.S.C. 1273 et seq. Section 7 of theAct prohibits the RegionalAdministrator from assisting by licenseor otherwise the construction of anywater resources project that would havea direct, adverse effect on the values forwhich a national wild and sceiic riverwas established.

(b) The National HistoricPreservatiOn Act of 1966, 16 U.S.C. 470et seq. Section 106 of the Act andimplementing regulations (36 CFR Part800) require the Regional Administrator,before issuing a license, to adopt

measures when feasible to mitigatepotential adverse effects of the licensedactivity and properties listed or eligiblefor listing in the National Register ofHistoric Places. The Act's requirementsare to be implemented in cooperationwith State Historic Preservation Officersand upon notice to, and whenappropriate, in consultation with theAdvisory Council on HistoricPreservation.

'(c) The Endangered Species Act, 16U.S.C. 1531 et seq. Section 7 of the Actand implementing regulations (50 CFRPart 402) require the RegionalAdministrator to ensure; in consultationwith the Secretary of the Interior orCommerce, that any action authorizedby EPA is not likely to jeopardize thecontinued existence of any endangeredor threatened species or adversely affectits critical habitat.

(d) The Coastal Zone ManagementAct, 16 U.S.C. 1451 et seq. Section 307(c)of the Act and implementing regulations(15 CFR Part 930) prohibit EPA fromissuing a permit for an activity affectingland or water use in the coastal zoneuntil the applicant certifies that theproposed activity complies with theState Coastal Zone Managementprogram, and the State or its designatedagency concurs with the certification (orthe Secretary of Commerce overridesthe States nonconcurrence).

(e) The Fish and WildlifeCoordination Act, 16 U.S.C. 661 et seq.,requires the Regional Administrator,before issuing a permit proposing orauthorizing the impoundment (withcertain exemptions), diversion, or othercontrol or modification of any body ofwater, consult with the appropriateState agency exercising jurisdiction overwildlife resources to conserve theseresources.

(f) Executive orders [Reserved.]


any information submitted to EPApursuant to these regulations may beclaimed as confidential by the submitter.Any such claim must be asserted at thetime of submission in the mannerprescribed on the application form orinstructions or, in the case of othersubmissions, by stamping the words"confidential business information" oneach page containing such information.If no claim is made at the time ofsubmission, EPA may make theinformation available to the publicwithout further notice. If a claim isasserted, the information will be treatedin accordance with the procedures in 40CFR Part 2 (Public Information).

(b] Claims of confidentiality for thefollowing information will be denied:

(1) The name and address of anypermit applicant or permittee;

(2) Information which deals with theexistence, absence, or level ofcontaminants in drinking water.

§ 144.6 Classification of wells.Injection wells are classified as

follows:(a) Class I(1) Wells used by generators of

hazardous waste or owners or operatorsof hazardous waste managementfacilities to inject hazardous wastebeneath the lowermost formationcontaining, within one-quarter mile ofthe well bore, an underground source ofdrinking water.

(2) Other industrial and municipaldisposal wells which inject fluidsbeneath the lowermost formationcontaining, within one quarter mile ofthe well bore, an underground source ofdrinking water.(b) Class II. Wells which inject fluids:(1) Which are brought to the surface in

connection with conventional oil ornatural gas production and may becommingled with waste waters from gasplants which are an integal part ofproduction operations, unless thosewaters are classified as a hazardouswaste at the time of injection.

(2) For enhanced recovery of oil ornatural gas; and

(3) For storage of hydrocarbons whichare liquid at standard temperature andpressure.

(c) Class III. Wells which inject forextraction of minerals including:

(1) Mining of sulfur by the Fraschprocess;

(2) In situ production of uranium orother metals; this category includes onlyin-situ production from ore bodies whichhave not been conventionally mined.Solution mining of conventional minessuch as stopes leaching is included nClass V.

(3) Solution mining of salts or potash.(d) Class IV(1) Wells used by generators of

hazardous waste or of radioactivewaste, by owners or operators ofhazardous waste management facilities,or by owners or operators of radioactivewaste disposal sites to dispose ofhazardous waste or radioactive wasteinto a formation which within one-quarter (Y4) mile of the well contains anunderground source of drinking water.

(2) Wells used by generators ofhazardous waste or of radioactivewaste, by owners or operators ofhazardous waste management facilities,or by owners or operators of radioactivewaste disposal sites to dispose ofhazardous waste or radioactive waste

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above a formation which within one-" quarter ( 4) mile of the well contains an

underground source of drinking water.(3) Wells used by generators of

hazardous waste or owners or operatorsof hazardous waste managementfacilities to dispose of hazardous waste,which cannot be classified underparagraphs (a)(1) or (d) (1) and (2) of thissection (e.g., wells used to dispose ofhazardous waste into or above aformation which contains an aquiferwhich has been exempted pursuant to§ 146.04).

(e) Class V. Injection wells notincluded in Classes 1, 11, 111, or IV.

§ 144.7 Identification of undergroundsources of drinking water and exemptedaquifers.

(a) The Director may identify (bynarrative description, illustrations,maps, or other means) and shall protect,except where exempted underparagraph (b) of this section, as anunderground source of drinking water,all aquifers or parts of aquifers whichmeet the definition of an "undergroundsource of drinking water" in § 144.3.Even if an aquifer has not beenspecifically identified by the Director, itis an underground source of drinkingwater if it meets the definition in § 144.3.

(b)(1) the Director may identify (bynarrative description, illustrations,maps, or other means) and describe ingeographic and/or geometric terms(such as vertical and lateral limits andgradient) which are clear and definite,all aquifers or parts thereof which theDirector proposes to designate asexempted aquifers using the criteria in40 CFR 146.04.

(2) No designation of an exemptedaquifer submitted as part of a UICProgram shall be final until approved bythe Administrator as part of a UICprogram.

(3) Subsequent to program approval orpromulgation, the Director may, afternotice and opportunity for a publichearing, identify additional exemptedaquifers. For approved State programsexemption of aquifers identifed (i) under§ 146.04(b) shall be treated as a programrevision under § 1i5.32; (ii) under§ 146.04(c) shall become final if the StateDirector submits the exemption inwriting to the Administrator and theAdministrator has not disapproved thedesignation within 45 days. Anydisapproval by the Administrator shallstate the reasons and shall constitutefinal Agency action for purposes ofjudicial review.

(c)(1) For Class Ill wells, the Directorshall.require an applicant for a permitwhich necessitates an aquifer exemptionunder § 146.04(b)(1) to furnish the data

necessary to demonstrate that theaquifer is expected to be mineral orhydrocarbon producing. Informationcontained in the mining plan for theproposed project, such as a map andgeneral description of the mining zone,general 'information on the mineralogyand geochemistry of the mining zone,analysis of the amenability of the miningzone to the proposed mining method,and a time-table of planneddevelopment of the mining zone shall beconsidered by the Director in addition tothe information required by § 144.31(g).

(2) For Class II wells, a demonstrationof commercial producibility shall bemade as follows:

(i) For a Class II well to be used forenhanced oil recovery processes in afield or project containing aquifers fromwhich hydrocarbons were previouslyproduced, commercial producibilityshall be presumed by the Director upona demonstration by the applicant ofhistorical production having occurred inthe project area or field.

(ii) For Class II wells not located in afield or project containing aquifers fromwhich hydrocarbons were previouslyproduced, information such as logs, coredata, formation description, formationdepth, formation thickness andformation parameters such aspermeability and porosity shall beconsidered by the Director, to the extentsuch information is available.

§ 144.8 Noncompiiance and programreporting by the Director.

The Director shall prepare quarterly,and annual reports as detailed below.When the State is the permit-issuingauthority, the State Director shall submitany reports required under this sectionto the Regional Administrator. WhenEPA is the permit-issuing authority, theRegional Administrator shall submit anyreport required under this section toEPA Headquarters.

(a) Quarterly reports. The Directorshall submit quarterly narrative reportsfor major facilities as follows:


(i) Provide an alphabetized list ofpermittees. When two or morepermittees have the same name, thelowest permit number shall be enteredfirst.

(ii) For each entry on the list, includethe following information in thefollowing order:

(A) Name, location, and permitnumber of the noncomplying permittees.

(B) A brief description and date ofeach instance of noncompliance for thatpermittee. Instances of noncompliancemay include one or more the kinds setforth in paragraph (a)(2) of this section.

When a permittee has noncompliance ofmore than one kind, combine theinformation into a single entry for eachsuch permittee.

(C) The date(s) and a brief descriptionof the action(s) taken by the Director toensure compliance.

(D) Status of the instance(s) ofnoncompliance with the date of thereview of the status or the date ofresolution.


(2) Instances of noncompliance to bereported. Any instances ofnoncompliance within the followingcategories shall be reported insuccessive reports until thenoncompliance is reported as resolved.Once noncompliance is reported asresolved it need not appear insubsequent reports.

(i) Failure to complete constructionelements. When the permittee has failedto complete, by the date specified in thepermit, an element of a complianceschedule involving either planning forconstruction or a construction step (forexample, begin construction, attainoperation level); and the permittee hasnot returned to compliance byaccomplishing the required elements ofthe schedule within 30 days from thedate a compliance schedule report isdue under the permit.

(ii) Modifications to schedules ofcompliance. When a schedule ofcompliance in the permit has beenmodified under § § 144.39 or 144.41because of the permittee'snoncompliance.

(iii) Failure to complete or providecompliance schedule or monitoringreports. When the permittee has failedto complete or provide a report requiredin a permit compliance schedule (forexample, progress report or notice ofnoncompliance-or compliance) or amonitoring report; and the permittee hasnot submitted the complete reportwithin 30 days from the date it is dueunder the permit for complianceschedules, or from the date specified inthe permit for monitoring reports.

(iv) Deficient reports. When therequired reports provided by thepermittee are so deficient as to causemisunderstanding by the Director andthus impede the review of the status ofcompliance.

(v) Noncompliance with other permitrequirements. Noncompliance shall bereported in the following circumstances:

(A) Whenever the permittee hasviolated a permit requirement (otherthan reported under paragraph (a)(2) (i)or (1}) of this section), and has not

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returned to compliance within 45 daysfrom the date reporting ofnoncompliance was due under thepermit; or

(B) When the Director determines thata pattern of noncompliance exists for amajor facility permittee over the mostrecent four consecutive reportingperiods. This pattern includes anyviolation of the same requirement in twoconsecutive reporing periods, and anyviolation of one or more requirements ineach of four consecutive reportingperiods; or

(C) When the Director determinessignificant permit noncompliance orother significant event has occurred,such as a migration of fluids into aUSDW.

(vi) All other. Statistical informationshall be reported quarterly on all otherinstances of noncompliance by majorfacilities with permit requirements nototherwise reported under paragraph (a)of this section.

(b) Annual reports. (1) Annualnoncompliance report. Statisticalreports shall be submitted by theDirector on nonmajor UIC permitteesindicating the total number reviewed,the number of noftcomplying nonmajorpermittees, the number of enforcementactions, and number of permitmodifications extending compliancedeadlines. The statistical informationshall be organized to follow the types ofnoncompliance listed in paragraph (a) ofthis section.

(2) For State-administered UICPrograms only. In addition to the annualnoncompliance report, the State Directorshall:

(i) Submit each year a program reportto the Administrator (in a manner andform prescribed by the Administrator)consisting of:

(A) A detailed description of theState's implementation of its program;

(B) Suggested changes, if any to theprogram description (see § 145.23(f))which are necessary to reflect moreaccurately the State's progress in issuingpermits;(C) An updated inventory of active

underground injection operations in theState.

(ii) In addition to complying with therequirements of paragraph (b)(2)(i) ofthis section, the Director shall providethe Administrator, on February 28th andAugust 31st of each of the first twoyears of program operation, theinformation required in 40 CFR 146.15,146.25, and 146.35.

(c) Schedule. (1) For all qliarterlyreports. On the last working day of May,August, November, and February, theState Director shall submit to theRegional Administrator information

concerning noncompliance with permitrequirements by major facilities in theState in accordance with the followingschedule. The Regiondl Administratorshall prepare and submit information forEPA-issued permits to EPAHeadquarters in accordance with thesame schedule.

QUARTERS COVERED BY REPORTS ON

NONCOMPLIANCE BY MAJOR FACILIES

[Date for completion of reports]

January, February. and March ... 'May 31April. May, and June ...... '....... :Aug. 31July. August, and September .'Nov. 30October, November, and De- 'Feb. 28

cember.

I Reports must be made available to the public for Inspec-tion and copying on this date.

(2) For all annual reports. The periodfor annual reports shall be for thecalendar year ending December 31, withreports completed and available to thepublic no more than 60 days later.

Subpart B-General ProgramRequirements

§ 144.11 Prohibition of unauthorizedInjection.

Any underground injection, except asauthorized by permit or rule issuedunder the UIC program, is prohibited.The construction of any well required tohave a permit is prohibited until thepermit has been issued.

§ 144.12 Prohibition of movement of fluidInto underground sources of drinkingwater.

(a) No owner or operator shallconstruct, operate, maintain, convert,plug, abandon, or conduct any otherinjection activity in a manner thatallows the movement of fluid containingany contaminant into undergroundsources of drinking water, if thepresence of that contaminant may causea violation of any primary drinkingwater regulation under 40 CFR Part 142or may otherwise adversely affect thehealth of persons. The applicant for apermit shall have the burden of showingthat the requirements of this paragraphare met.

(b) For Class 1, 11, and III wells, if anywater quality monitoring of anunderground source of drinking waterindicates the movement of anycontaminant into the undergroundsource of drinking water, except asauthorized under Part 146, the Directorshall prescribe such additionalrequirements for construction, correctiveaction, operation, monitoring, orreporting (including closure of theinjection well) as are necessary toprevent such movement. In the case ofwells authorized by permit, theseadditional requirements shall beimposed by modifying the permit in

accordance with § 144.39. or the permitmay be terminated under § 144.40 ifcause exists, or appropriate enforcementaction may be taken if the permit hasbeen violated. In-the case of wellsauthorized by rule, see § § 144.21-.24.

(c) For Class V wells, if at any timethe Director learns that a Class V wellmay cause a violation of primarydrinking water regulations under 40 CFRPart 142, he or she shall:

(1) Require the injector to obtain anindividual permit;

(2) Order the injector to take suchactions (including where requiredclosure of the injection well] as may benecessary to prevent the violation; or

(3) Take enforcement action.(d) Whenever the Director learns that

a Class V well may be otherwiseadversely affecting the health ofpersons, he or she may prescribe suchactions as may be necessary to preventthe adverse effect, including any actionauthorized under paragraph (c) of thissection.

(e) Notwithstanding any otherprovision of this section, the Directormay take emergency action upon receiptof information that a contaminant whichis present in or is likely to enter a publicwater system may present an imminentand substantial endangerment to thehealth of persons.

§ 144.13 Elimination of certain Class IVwells.

(a) In addition to the requirement of§ 144.14, the following are prohibited:

(1) The construction of any Class IVwell for the injection of hazardouswaste directly into an undergroundsource of drinking water,

(2) The injection of hazardous wastedirectly into an underground source ofdrinking water through a Class IV wellthat was not in operation prior to July18, 1980.

(3) Any increase in the amount ofhazardous waste or change in the typeof hazardous waste injected into a wellinjecting hazardous waste directly into aUSDW.

(4) The operation of any Class IV wellinjecting hazardous waste directly into aUSDW after 6 months following theapproval or promulgation of a UICprogram for the State.

(b) The prohibition applicable to ClassIV wells does not apply to injections ofhazardous wastes into aquifers orportions thereof which have beenexempted pursuant to § 146.04.

§ 144.14 Requirements for wells Injectinghazardous waste.

(a) Applicability. The regulations inthis section apply to all generators of

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hazardous waste, and to the owners oroperators of all hazardous. wastemanagement facilities, using any classof well to inject hazardous wastesaccompanied by a manifest. (See also§ 144.13.)

(b) Authorization. The owner oroperator of any well that is used toinject hazardous waste required to beaccompanied by a manifest or deliverydocument shall apply for authorizationto inject as specified in § 144.31 within 6months after the approval orpromulgation of the State UIC program.

(c) Requirements. In addition tocomplying with the applicablerequirements of this Part and 40 CFRPart 146, the owner or operator of eachfacility meeting the requirements ofparagraph (b) of this section, shallcomply with the following:

(1) Notification. The owner oroperator shall comply with thenotification requirements of Section 3010of Pub. L. 94-580.

(2) Identification number. The owneror operator shall comply with therequirements of 40 CFR 264.11.

(3) Manifest system. The owner oroperator shall comply with theapplicable recordkeeping and reportingrequirements for manifested wastes in40 CFR 264.71.

(4) Manifest discrepancies. The owneror operator shall comply with 40 CFR§ 264.72.

(5) Operating record. The owner oroperator shall comply with 40 CFR264.73(a), (b)(1), and (b)(2).

(6) Annual report. The owner oroperator shall comply with 40 CFR§ 264.75.

(7) Unmanifested waste report. Theowner or operator shall comply with 40CFR § 264.75.

(8) Personnel training. The owner oroperator shall comply with theapplicable personnel trainingrequirements of 40 CFR § 264.16.

(9) Certification of closure. Whenabandonment is completed, the owneror operator must submit to the Directorcertification by the owner or operatorand certification by an independentregistered professional engineer that thefacility has been closed in accordancewith the specifications in § 144.52(a)(6).

(d) Additional requirements for ClassIV wells. [Reserved].

§ 144.15 Assessment of Class V wells.

Assessment of Class V Wells. TheDirector shall, within three years of the

i. approval of the program in a Statesubmit a report and recommendations toEPA in compliance with § 146.52(b).

§ 144.16 Waiver of requirement byDirector.

(a) When injection does not occurinto, through or above an undergroundsource of drinking water, the Directormay authorize a well or project with lessstringent requirements for area ofreview, construction, mechanicalintegrity, operation, monitoring, andreporting than requird in 40 CFR Part 146or § 144.52 to the extent that thereduction in requirements will not resultin an increased risk of movement offluids into an underground source ofdrinking water.

(b) When injection occurs through orabove an underground source ofdrinking water, but the radius ofendangering influence when computedunder § 146.06(a) is smaller or equal tothe radius of the well, the Director mayauthorize a well or project with lessstringent requirements for operation,monitoring, and reporting than requiredin 40 CFR Part 146 or § 144.52 to theextent that the reduction inrequirements will not result in anincreased risk of movement of fluidsinto an underground source of drinkingwater.

(c) When reducing requirements underparagraph (a) or (b) of this section, theDirector shall prepare a fact sheet under§ 124.8 explaining the reasons for theaction.

Subpart C-Authorizatiqn ofUnderground Injection by Rule

§ 144.21 Existing Class I, II (exceptenhanced recovery and hydrocarbonstorage) and III wells.

Injection into existing Class I, II(except existing enhanced recovery andhydrocarbon storage), and III wells isauthorized.

(a) Duration. The authorization underthis section expires:

(1) Upon the effective date of thepermit or permit denial, if a permitapplication has been filed in a timelymanner as specified in § 144.31(c)(1);

(2) If a permit application has notbeen filed in a timely manner asspecified in § 144.31(c)(1); or

(3) Five years after approval orpromulgation of the UIC program unlessa complete permit application ispending.

(b) Class II and III wells in existingfields orproject§ Notwithstanding theprohibition in '§ 144.11, this sectionauthorizes Class II and Class III wells orprojects in existing fields or projects tocontinue normal operations untilpermitted, including construction,operation, and plugging andabandonment of wells as part of theoperation, provided the owner or

operator maintains compliance with allapplicable requirements.

(c) Requirements. Owners oroperators of wells authorized under thissection shall comply with the followingrequirements no later than one yearafter authorization, except that wherethe referenced requirements apply topermittees, the terms "permit" and"permittee" shall be read to includerules and those authorized by rule:. (1) Section 144.51(a)-(exemption

from rule where authorized bytemporary permits);

(2) Section 144.51()(2)-(retention ofrecords);

(3) 144.51(1(6)-(reporting within 24hours);

(4) Section 144.51(n)-(notice ofabandonment);

(5) The owner or operator mustprepare, maintain, and comply with aplan for plugging and abandonment thatmeets the requirements of § 146.10 andis acceptable to the Director (forpurposes of this paragraph, temporaryintermittent cessation of injectionoperations is not abandonment);

(6) The minimum operating,monitoring, and reporting requirements(except mechanical integrity) required tobe specified by § 146.13 (Class I),§ 146.23 (Class II) and § 146.33 (Class.lII);

(7) Section 144.52(a)(7)---(financialresponsibility); and

(8) Section 144.14(c)-(requirementsfor wells injecting hazardous waste)applicable to Class I wells injectinghazardous waste only).

§ 144.22 Existing Class II enhancedrecovery and hydrocarbon storage wells.. Injection into existing Class IIenhanced recovery and hydrocarbonstorage wells is authorized for the life ofthe well or project.

(a) Owners or operators of wellsauthorized under this section shallcomply with the following requirements,except that where the referencedrequirements apply to permittees theterms "permit" and "permittee" shall beread to include rule and thoseauthorized by rule:

(1) Section 144.51(a)-(exemptionfrom rule where authorized bytemporary .permit);

(2) Section 144.51(j)(2--(retention orrecords);

(3) Section 144.51()(61-(reportingwithin 24 hours);

(4) Section 144.52(n)-(notice ofabandonment);

(5) The owner or operator mustprepare maintain, and comply with aplan for plugging and abandonment thatmeets the requirements of § 146.10 and

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is acceptable to the Director (forpurposes of this paragraph, temporaryintermittent cessation of injectionoperations is not abandonment);

(6) Section 144.52(a)(7)-(financialresponsibility);

(7) Section 146.08-(mechanicalintegrity);

(8) Section 146.22-(casing andcementing requirements whereappropriate); and

(9) The minimum operating,monitoring and reporting requirementsrequired to be specified by § 146.23.

(b) Owners or operators of wellsauthorized under this section shallcomply with the constructionrequirements no later than three years,and other requirements no later thanone year after authorization.

§ 144.23 Class IV wells.(a) Injection into existing Class IV

wells as defined in § 144.6(d)(1) isauthorized for up to six months afterapproval or promulgation of the UICProgram. Such wells are subject to therequirements of § 144.13 and § 144.14(c).

(b) Injection into existing Class IVwells as defined in § 144.6(d) (2) and (3)are authorized until six months afterapproval or promulgation of an UICProgram incorporating criteria andstandards under Part 146, Subpart Eapplicable to Class IV injection wells.Such wells are subject to therequirements of § 144.14(c).

§ 144.24 Class V wells.Injection into Class V wells is

authorized until further requirementsunder future regulations becomeapplicable.

§ 144.25 Requiring a permit.(a) The Director may.require any

Class I, II, IIl, or Vinjection wellauthorized by a rule to apply for andobtain an individual or area UIC permit.Cases where individual or area UICpermits may be required include:

(1) The injection well is not incompliance with any requirement of therule;

Note.-Any underground injection whichviolates any authorization by rule is subjectto appropriate enforcement action.

(2) The injection well is not or nolonger is within the category of wellsand types of well operations auihorizedin the rule;

(3) The protection of USDWs requiresthat the injection operation be regulatedby requirements, such as for correctiveaction, monitoring and reporting, oroperation, which are not contained inthe rule.

(b) For EPA administered programs,the Director may require the owner or

operator authorized by a rule to applyfor an individual or area UIC permitunder this paragraph only if the owneror operator has been notified in writingthat a permit application is required.The notice shall include a briefstatement of the reasons for thisdecision, an application form, astatement setting a time for the owner oroperator to file the application, and astatement that upon the effective date ofthe UIC permit the rule no longer appliesto the activities regulated under the UICProgram.

(c) Any owner or operator authorizedby a rule may request to be excludedfrom the coverage of the rules byapplying for an individual or area UICpermit. The owner or operator shallsubmit an application under § 144.31with reasons supporting the request, tothe Director. The Director may grant anysuch requests.

§ 144.26 Inventory requirements.Owners or operators of all injection

wells authorized by rule shall subniitinventory information to the Director.Any authorization under this subpartautomatically terminates for any owneror operator who fails to comply withinthe time specified in paragraph (c) ofthis section.

(a) Contents. As part of the inventory,the Director shall require and theowner/operator shall provide at leastthe following information:

(1) Facility name and location;(2) Name and address of legal contact;(3) Ownership of facility;(4) Nature and type of injection wells;

and(5) Operating status of injection wells.Note.-This information is requested on

national form "Inventory of Injection Wells,"OMB No. 158-1R0170.

(b) Notice. Upon approval of the UICProgram in a State, the Director shallnotify owners or operators of injectionwells of their duty to submit inventoryinformation. The method of notificationselected by the Director must assurethat the owners or operators will bemade aware of the inventoryrequirement.

(c) Deadlines. Owners or operators ofinjection wells must submit inventoryinformation no-later than one year afterthe authorization by rule. The Directorneed not require inventory informationfrom any facility with interim statusunder RCRA..

Subpart D-Authorization by Permit

§ 144.31 Application for a permit;authorization by permit

(a) Permit application. Except forowners or operators authorized by rule,

all underground injections wells areprohibited unless authorized by permit.Persons currently authorized by rulemust still apply for a permit under thissection unless authorization was for thelife of the well or project. Rulesauthorizing well injections for whichpermit applications have been submittedshall lapse for a particular well injectionor project upon the effective date of thepermit or permit denial for that wellinjection or project. Procedures forapplications, issuance andadministration of emergency permits arefound exclusively in § 144.34.

(b) Who applies? When a facility oractivity is owned by one person but isoperated by another person, it is theoperator's duty to obtain a permit.

(c) Time to apply. Any person whoperforms or proposes an undergroundinjection for which a permit is or will berequired shall submit an application tothe Director in accordance with the UICprogram as follows:

(1) For existing wells, as expeditiouslyas practicable but no later than 4 yearsfrom the approval or promulgation of theUIC program, or as required under§ 144.14(b) for wells injecting hazardouswaste.

(2) For new injection wells, exceptnew wells in projects authorized under§ 144.21(b) or covered by an existingarea permit under § 144.33(c), areasonable time before construction isexpected to begin.

(d) Completeness. The Director shallnot issue a permit before receiving acomplete application for a permit exceptfor emergency permits. An applicationfor a permit is complete when theDirector receives an application formand any supplemental informationwhich are completed to his or hersatisfaction. The completeness of anyapplication for a permit shall be judgedindependently of the status of any otherpermit application or permit for thesame facility or activity. For EPA-administered programs, an applicationwhich is reviewed under § 124.3 iscomplete when the Director receiveseither a complete application or theinformation listed in a notice ofdeficiency.

(e) Information requirements. Allapplicants for permits shall provide thefollowing information to the Director,using the application form provided bythe Director.

(1) The activities conducted by theapplicant which require it to obtainpermits under RCRA, UIC, the NationalPollution Discharge Elimination system(NPDES) program under the CleanWater Act, or the Prevention of

] IIII14196




Significant Deterioration (PSD) programunder the Clean Air Act.

(2) Name, mailing address, andlocation of the facility for which theapplication is submitted.

(3) Up to four SIC codes which bestreflect the principal products or servicesprovided by the facility.

(4) The operator's name, address,telephone number, ownership status,and status as Federal, State, private,public, or other entity.

(5) Whether the facility is located onIndian lands.

(6) A listing of all permits orconstruction approvals received orapplied for under any of the followingprograms:

(i) Hazardous Waste Managementprogram under RCRA.

(ii) UIC program under SDWA.(iii) NPDES program under CWA.(iv) Prevention of Significant

Deterioration (PSD) program under theClean Air Act.

(v) Nonattainment program under theClean Air Act.

(vi) National Emission Standards forHazardous Pollutants (NESHAPS)preconstruction approval under theClean Air Act.

.(vii) Ocean dumping permits under theMarine Protection Research andSanctuaries Act.

(viii) Dredge and fill permits undersection 404 of CWA.

* (ix) Other relevant environmentalpermits, including State permits.

(7) A topographic map (or other map ifa topographic map is unavailable)extending one mile beyond the propertyboundaries of the source depicting thefacility and each of its intake anddischarge structures; each of itshazardous waste treatment, storage, ordisposal facilities; each well wherefluids from the facility are injectedunderground; and those wells, springs,and other surface water bodies, anddrinking water wells listed in publicrecords or otherwise known to theapplicant within a quarter mile of thefacility property boundary.

(8) A brief description of the nature ofthe business.

(f) Recordkeeping. Applicants shallkeep records of all data used tocomplete permit applications and anysupplemental information submittedunder § 144.31 for a period of at least 3years from the date the application issigned.

(g) Contents of UIC application.[Reserved.]

§ 144.32 Signatories to permit applicationsand reports.

(a) Applications. All permitapplications, except those submitted for

Class II wells (see paragraph (b) of thissection), 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, Federal,or other public agency: by either aprincipal executive or ranking electedofficial.

(b) Reports. All reports required bypermits, other information requested bythe Director, and all permit applicationssubmitted for Class II wells under§ 144.31 shall be signed by a persondescribed in paragraph (a) of thissection, or by a duly authorizedrepresentative of that person. A personis a duly authorized representative onlyif:


(2) The authorization specifies eitheran individual or a position havingresponsibility for the overall operationof the regulated facility or activity, suchas the position of plant manager,operator of a well or a well field,superintendent, or position of equivalentresponsibility. (A duly authorizedrepresentative may thus be either anamed individual or any individualoccupying a named position); and

(3) The written authorization issubmitted to the Director.

(c) Changes to authorization. If anauthorization under paragraph (b) of thissection is no longer accurate because adifferent individual or position hasresponsibility for the overall operationof the facility, a new authorizationsatisfying the requirements of paragraph(b) of this section must be submitted tothe Director prior to or together with anyreports, information, or applications tobe signed by an authorizedrepresentative.

(d) Certification. Any person signing adocument under paragraph (a) or (b) ofthis section shall make the followingcertification:

I certify under the penalty of law that Ihave personally examined and am familiarwith the information submitted in thisdocument and all attachments and that,based on my inquiry of those individualsimmediately responsible for obtaining theinformation, I believe that the information istrue, accurate, and complete. I am aware thatthere are significant penalties for submittingfalse information, including the possibility offine and imprisonment.

§ 144.33 Area permits.(a) The Director may issue a permit on

an area basis, rather than for each well

individually, provided that the permit isfor injection wells:

(1) Described and identified bylocation in permit application(s) if theyare existing wells, except that theDirector may accept a single descriptionof wells with substantially the samecharacteristics;

(2) Within the same well field, facilitysite, reservoir, project, or similar unit inthe same State;

(3) Operated by a single owner oroperator; and

(4) Used to inject other thanhazardous waste.

(b) Area permits shall specify:(1) The area within which -

underground injections are authorized,and

(2) The requirements for construction,monitoring, reporting, operation, andabandonment, for all wells authorizedby the permit.

(c) The area permit may authorize thepermittee to construct and operate,convert, or plug and abandon wellswithin the permit area provided:

(1) The permittee notifies the Directorat such time as the permit requires;

(2) The additional well satisfies thecriteria in paragraph (a) of this sectionand meets the requirements specified inthe permit under paragraph {b) of thissection; and

(3) The cumulative effects of drillingand operation of additional injectionwells are considered by the Directorduring evaluation of the area permitapplication and are acceptable to theDirector.

(d) If the Director determines that anywell constructed pursuant to paragraph(c) of this section does not satisfy any ofthe requirements of paragraphs (c)(1)and (c)(2) of this section the Directormay modify the permit under § 144.39,terminate under § 144.40, or takeenforcement action. If the Directordetermines that cumulative effects areunacceptable, the permit may bemodified under § 144.39.

§ 144.34 Emergency permits.(a) Coverage. Notwithstanding any

other provision of this Part or Part 124,the Director may temporarily permit aspecific underground injection whichhas not otherwise been authorized byrule or permit if:

(1) An imminent and substantialendangerment to the health of personswill result unless a temporaryemergency permit is granted; or

(2) A substantial and irretrievable lossof oil or gas resources will occur unlessa temporary emergency permit is 6granted to a Class II well; and

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(i) Timely application for a permitcould not practicably have been made;and

(ii) The injection will not result in themovement of fluids into undergroundsources of drinking water; or

(3) A substantial delay in production -

of oil or gas resources will occur unlessa temporary emergency permit isgranted to a new Class II well and thetemporary authorization will not resultin the movement of fluids into anunderground source of drinking water.

(b) Requirements for issuance.(1) Any temporary permit under

paragraph (a)(1) of this section shall befor no longer term than required toprevent the hazard.

(2) Any temporary permit underparagraph (a)(2) of this section shall befor no longer than 90 days, except that ifa permit application has been submittedprior to the expiration of the 90-dayperiod, the Director may extend thetemporary permit until final action onthe application.

(3) Any temporary permit underparagraph (a)(3) of this section shall beissued only after a complete permitapplication has been submitted andshall be effective until final action onthe application.

(4) Notice of any temporary permitunder this paragraph shall be publishedin accordance with § 124.11 within 10days of the issuance of the permit.

(5) The temporary permit under thissection may be either oral or written. Iforal, it must be followed within 5calendar days by a written temporaryemergency permit.

(6) The Director shall condition thetemporary permit in any manner he orshe determines is necessary to ensurethat the injection will not result in themovement of fluids into an undergroundsource of drinking water.

§ 144.35 Effect of a permit.(a) Except for Class II and III wells,

compliance with a permit during its termconstitutes compliance, for purposes ofenforcement, with Part C of the SDWA.However, a permit may be modified,revoked and reissued, or terminatedduring its term for cause as set forth in§ §144.39 and 144.40.

(b) The issuance of a permit does notconvey any property rights- of any sort,or any exclusive privilege.

(c) The issuance of a permit does notauthorize any injury to persons orproperty or invasion of other privaterights, or any infringement of State orlocal law or regulations.

§ 144.36 Duration of permits.(a) Permits for Class I and Class V

wells shall be effective for a fixed term

not to exceed 10 years. UIC permits forClass II and III wells shall be issued fora period up to the operating life of thefacility, The Director shall review eachissued Class II or III well UIC permit atleast once every 5 years to determinewhether it should be modified, revokedand reissued, terminated, or a minormodification'made as provided in§ § 144.39, 144.40, and 144.41.

(b) Except as. provided in § 144.37, theterm of a permit shall not be extendedby modification beyond the maximumduration specified in this section.


§ 144.37 Continuation of expiring permits.(a)-EPA permits. When EPA is the

permit-issuing authority, the conditionsof an expired permit continue in forceunder 5 U.S.C. 558(c) until the effectivedate of a new permit if:

(1) The permittee has submitted atimely application which is a completeapplication for a new permit; and

(2) The Regional Administrator,through no fault of the permittee doesnot issue a new permit with an effectivedate on or before the expiration date ofthe previous permit (for example, whenissuance is impracticable due to time orresource constraints).

(b) Effect. Permits continued underthis section remain fully effective andenforceable.

(c) Enforcement. When the permitteeis not in compliance with the conditionsof the expiring or expired permit theRegional Administrator may choose todo any or all of the following:


(2) Issue a notice of intent to deny thenew permit. If the permit is denied, theowner or operator would then berequired to cease the activitiesauthorized by the continued permit or besubject to enforcement action foroperating without a permit;



(d) State continuation. An EPA issuedpermit does not continue in forcebeyond its time expiration date underFederal law if at that time a State is thepermitting authority. A State authorizedto administer the UIC program maycontinue either EPA or State-issuedpermits until the effective date of thenew permits, if State law allows.Otherwise, the facility or activity isoperating without a permit from the timeof expiration of the old permit to the

effective date of the State-issued newpermit.

§ 144.38 Transfer of permits.(a) Transfers by modification. Except

as provided in paragraph (b) of thissection, a permit may be transferred bythe permittee to a new owner oroperator only if the permit has beenmodified or revoked and reissued (under§ 144.39(b)(2)), or a minor modificationmade (under § 144.41(d)), to identify thenew permittee and incorporate suchother requirements as may be necessaryunder the Safe Drinking Water Act.

(b) Automatic transfers. As analternative to transfers under paragraph(a) of this section, any UIC permit for awell not injecting hazardous waste maybe automatically transferred to a newpermittee if:

(1) The current permittee notifies theDirector at least 30 days in advance ofthe proposed transfer date referred to inparagraph (b)(2) of this section;

(2) The notice includes a writtenagreement between the existing andnew permittees containing a specificdate for transfer or permit responsibility,coverage, and liability between them,and the notice demonstrates that thefinancial responsibility requirements of§144.52(a)[7) will be met by the newpermittee; and

(3) The Director does not notify the,existing permittee and the proposed newpermittee of his or her intent to modifyor revoke and reissue the permit. Amodification under this paragraph mayalso be a minor modification under§ 144.41. If this notice is not received,the transfer is effective on the datespecified in the agreement mentioned inparagraph (b)(2) of this section.

§ 144.39 Modification or revocation andreisssuance of permits.

When the Director receives anyinformation (for example, inspects thefacility, receives information submittedby the permittee as required in thepermit (see § 144.51 of this chapter),receives a request for modification orrevocation and reissuance under § 124.5,or conducts a review of the permit file)he or she may determine whether or notone or more of the causes listed inparagraphs (a) and (b) of this section formodification or revocation andreissuance or both exist. If cause exists,the Director may modify or revoke andreissue the permit accordingly, subjectto the limitations of paragraph (c) of thissection, and may request an updatedapplication if necessary. When a permitis modified, only the conditions subjectto modification are reopened. If a permitis revoked and reissued, the entire

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permit is reopened and subject torevision and the permit is reissued for anew term. See § 124.5(c)(2) of thischapter. If cause does not exist underthis section or § 144.41 of this chapter,the Director shall not modify or revokeand reissue the permit. If a permitmodification satisfies the criteria in§144.41 for "minor modifications" thepermit may be modified without a draftpermit or public review. Otherwise, adraft permit must be prepared and otherprocedures in Part 124 must be followed.

(a) Causes for modification. Thefollowing are causes for modification.For Class II or III wells the followingmay be causes for revocation andreissuance as well as modification; andfor all other wells the following may because for revocation or reissuance aswell as modification when the permitteerequests or agrees.

(1) Alterations. There are material andsubstantial- alterations or additions tothe permitted facility or activity whichoccurred after permit issuance whichjustify the application of permitconditions that are different or absent inthe existing permit.

(2) Information. The Director hasreceived information. Permits other thanfor Class II and III wells may bemodified during their terms for thiscause only if the information was notavailable at the time of permit issuance(other than revised regulations,guidance, or test methods) and wouldhave justified the application ofdifferent permit conditions at the time ofissuance. For UIC area permits(§ 144.33), this cause shall include anyinformation indicating that cumulativeeffects on the environment areunacceptable.

(3) New regulations. The standards orregulations on which the permit wasbased have been changed bypromulgation of amended standards orregulations or by judicial decision afterthe permit was issued. Permits otherthan for Class II or III wells may bemodified during their terms for thiscause only as follows:


(A) The permit condition requested tobe modified was based on apromulgated Part 146 regulation; and

(B) EPA has revised, withdrawn, ormodified that portion of the regulationon which the permit condition wasbased, and

(C) A permittee requests modificationin accordance with § 124.5 within ninety(90) days after Federal Register notice ofthe action on which the request is based.

(ii) For judicial decisions, a court ofcompetent jurisdiction has remanded

* and stayed EPA promulgated

regulations if the remand and stayconcern that portion of the regulations'on which the permit condition wasbased and a request is filed by thepermittee in accordance with § 124.5within ninety (90) days of judicialremand.

(4) Compliance schedules. TheDirector determines good cause existsfor modification of a complianceschedule, such as an act of God, strike,flood, or materials shortage or otherevents over which the permittee haslittle or no control and for which there isno reasonably available remedy. Seealso § 144.41(c) (minor modifications).



(2) The Director has receivednotification (as required in the permit,see § 144.41(d)) of a proposed transfer ofthe permit. A permit also may bemodified to reflect a transfer after theeffective date of an automatic transfer(§ 144.38(b)) but will not be revoked andreissued after the effective date of thetransfer except upon the request of thenew permittee.

(c) Facility siting. Suitability of thefacility location will not be consideredat the time of permit modification orrevocation and reissuance unless newinformation or standards indicate that athreat to human health or theenvironment exists which was unknownat the time of permit issuance.

§ 144.40 Termination of permits.(a) The Director may terminate a

permit during its term, or deny a permitrenewal application for the followingcauses:

(1) Noncompliance by the permitteewith any condition of the permit;


(3) A determination that the permittedactivity endangers human health or theenvironment and can only be regulatedto acceptable levels by permitmodification or termination;

(b) The Director shall follow theapplicable procedures in Part 124 interminating any permit under thissection.


Director may modify a permit to makethe corrections or allowances forchanges in the permitted activity listedin this section, without following theprocedures of Part 124. Any permitmodification not processed as a minormodification under this section must bemade for cause and with Part 124 draftpermit and public notice as required in,§ 144.39. Minor modifications may only:



in a schedule of compliance, providedthe new date is not more tharf 120 daysafter the date specified in the existingpermit and does not interfere withattainment of the final compliance daterequirement; or

(d) Allow for a change in ownershipor operational control of a facility wherethe Director determines that no otherchange in the permit is necessary,provided that a written agreementcontaining a specific date for transfer ofpermit responsibility, coverage, andliability between the current and newpermittees has been submitted to theDirector.

(e) Change quantities or types offluids injected which are within thecapacity of the facility as permitted and,in the judgment of the Director, wouldnot interfere with the operation of thefacility or its ability to meet conditionsdescribed in the permit and would notchange its classification.

(f) Change construction requirementsapproved by the Director pursuant to§ 144.52(a)(1) (establishing UIC permitconditions), provided that any suchalteration shall comply with therequirements of this Part and Part 146.

(g) Amend a plugging andabandonment plan which has beenupdated under § 144.52(a)(6).

Subpart E-Permit Conditions

§ 144.51 Conditions applicable to allpermits.

The following conditions apply to allUIC permits. All conditions applicableto all permits shall be incorporated intothe permits either expressly or byreference. If incorporated by reference,a specific citation to these regulations(or the corresponding approved Stateregulations) must be given in the permit.

(a) Duty to comply. The permitteemust comply with all conditions of thispermit. Any permit noncomplianceconstitutes a violation of the SafeDrinking Water Act and is grounds forenforcement action; for permit

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termination, revocation and reissuance,or modification; or for denial of a permitrenewal application; except that thepermittee need not comply with theprovisions of this permit to the extentand for the duration suchnoncompliance is authorized in anemergency permit under § 144.34.


(c) Need to halt or reduce activity nota defense. It shall not be a defense for apermittee in an enforcement action thatit would have been necessary to halt orreduce the permitted activity in order tomaintain compliance with the conditionsof this permit.

(d) Duty to mitigate. The permitteeshall take all reasonable steps tominimize or correct any adverse impacton the environment resulting fromnoncompliance with this permit.

(e) Proper operation'and maintenance.The perittee shall at all times properlyoperate and maintain all facilities andsystems of treatment and control (andrelated appurtenances) which areinstalled or used by the permittee toachieve compliance with the conditionsof this permit. Proper operation andmaintenance includes effectiveperformance, adequate funding,adequate operator staffing and training,and adequate laboratory and processcontrols, including appropriate qualityassurance procedures. This provisionrequires the operation of back-up orauxiliary facilities or similar systemsonly when necessary to achievecompliance with the conditions of thepermit.

(f) Permit actions. This permit may bemodified, revoked and reissued, orterminated for cause. The filing of arequest by the permittee for a permitmodification, revocation and reissuance,or termination, or a notification ofplanned changes or anticipatednoncompliance, does not stay anypermit condition.

(g) Property rights. This permit doesnot convey any property rights of anysort. or any exclusive privilege.

(h) Duty to provide information. Thepermittee shall furnish to the Director,within a time specified, any informationwhich the Director may request todetermine whether cause exists formodifying, revoking and reissuing, orterminating this permit, or to determinecompliance with this permit. Thepermittee shall also furnish to theDirector, upon request, copies of recordsrequired to be kept by this permit.

(i) Inspection and entry. The permitteeshall allow the Director, or an

authorized representative, upon thepresentation of credentials and otherdocuments as may be required by law,to:




(4) Sample or monitor at reasonabletimes, for the purposes of assuringpermit compliance or as otherwiseauthorized by the SDWA, anysubstances or parameters at anylocation.

(j) Monitoring and records.(1) Samples and measurements taken

for the purpose of monitoring shall berepresentative of the monitored activity.

(2) The permittee shall retain recordsof all monitoring information, includingthe following:

(i) Calibration and maintenancerecords and all original strip chartrecordings for continuous monitoringinstrumentation, copies of all reportsrequired by this permit, and records ofall data used to complete the applicationfor this permit, for a period of at least 3years from the date of the sample,measurement, report, or application.This period may be extended by requestof the Director at any time; and

(ii) The nature and composition of allinjected fluids until three years after thecompletion of any plugging andabandonment procedures specifiedunder § 144.52(a)(6). The Director mayrequire the owner or operator to deliverthe records to the Director at theconclusions of the retention period.







(vi) The results of such analyses.(k) Signatory requirement. All

applications, reports, or informationsubmitted to the Administrator shall besigned and certified. (See § 144.32.)

(1) Reporting requirements.

(1) Planned changes. The permitteeshall give notice to the Director as soonas possible of any planned physicalalterations or additions to the permittedfacility.

(2) Anticipbted noncompliance. Thepermittee shall give advance notice tothe Director of any planned changes inthe permitted facility or activity whichmay reshlt in noncompliance withpermit requirements.

(3) Transfers. This permit is nottransferable to any person except afternotice to the Director. The Director mayrequire modification or revocation andreissuance of the permit to change thename of the permittee and incorporatesuch other requirements as may benecessary under the Safe DrinkingWater Act. (See § 144.38; in some cases,modification or revocation andreissuance is mandatory.)


(5) Compliance schedules. Reports ofcompliance or noncompliance with, orany progress )eports on, interim andfinal requirements contained in anycompliance schedule of this permit shallbe submitted no later than 30 daysfollowing each schedule date.

(6) Twenty-four hour reporting. Thepermittee shall report anynoncompliance which may endangerhealth or the environment, including:

(i) Any monitoring or otherinformation which indicates that anycontaminant may cause anendangerment to a USDW; or

(ii) Any noncompliance with a permitcondition or malfunction of the injectionsystem which may cause fluid migrationinto or between USDWo.Any information shall be providedorally within 24 hours from the time thepermittee becomes aware of thecircumstances. A written submissionshall also be provided within 5 days ofthe time the permittee becomes aware ofthe circumstances. The writtensubmission shall contain a descriptionof the noncompliance and its cause, theperiod of noncompliance, includingexact dates and times, and if thenoncompliance has not been corrected,the anticipated.time it is expected tocontinue; and steps taken or planned toreduce, eliminate, and prevehtreoccurrence of the noncompliance.

(7) Other noncompliance. Thepermittee shall report all instances ofnoncompliance not reported underparagraphs (1) (4), (5), and (6) of thissection, at the time monitoring reportsare submitted. The reports shall containthe information listed in paragraph (1)(6)of this section.

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(8) Other information. Where thepermittee becomes aware that it failedto submit any relevant facts in a permitapplication, or submitted incorrectinformation in a permit application or inany report to the Director, it shallpromptly submit such facts orinformation.

(m) Requirements prior tocommencing injection. Except for allnew wells authorized by an area permitunder § 144.33(c), a new injection wellmay not commence injection untilconstruction is complete, and

(1) The permittee has submitted noticeof completion of construction to theDirector; and

(2)(i) The Director has inspected orotherwise reviewed the new injectionwell and finds it is in compliance withthe conditions of the permit; or

(ii) The permittee has not receivednotice form the Director of his or herintent to inspect or otherwise review thenew injection well within 13 days of thedate of the notice in paragraph (m)(1) ofthis section, in which case priorinspection or review is waived and thepermittee may commence injection. TheDirector shall include in his notice areasonable time period in which he shallinspect the well.

(n) The permittee shall notify theDirector at such times as the permitrequires before conversion orabandonment of the well or in the caseof area permits before closure of theproject.

§ 144.52 Establishing permit conditions.(a) In addition to conditions required

in § 144.51, the Director shall establishconditions, as required on a case-by-case basis under § 144.36, (duration ofpermits), § 144.53(a) (schedules ofcompliance), § 144.54 (monitoring), andfor EPA permits only § 144.53(b)(alternate schedules of compliance), and§ 144.4 (considerations under Federallaw). In addition, each permit shallinclude conditions meeting the followingrequirements, when applicable.

(1) Construction requirements as setforth in Part 146. Existing wells shallachieve compliance with suchrequirements according to a complianceschedule established as a permitcondition. The owner or operator of aproposed new injection well shallsubmit plans for testing, drilling, andconstruction as part of the permitapplication. Except as authorized by anarea permit, no constuction maycommence until a permit has beenissued containing constructionrequirements (see §144.11). New wellsshall be in compliance with theserequirements prior to commencinginjection operations. Changes in

construction plans during constructionmay be approved by the Administratoras minor modifications (§ 144.41). Nosuch changes may be physicallyincorporated into construction of thewell prior to approval of themodification by the Director.

(2) Corrective action as set forth in§ 144.55 and § 146.7

(3) Operation requirements as setforth in 40 CFR Part 146; the permit shallestablish any maximum injectionvolumes and/or pressures necessary toassure that fractures are not initiated inthe confining zone, that injected fluidsdo not migrate into any undergroundsource of drinking water, that formationfluids are not displaced into-anyunderground source of drinking water,and to assure compliance with the Part146 operating requirements.

(4) Requirements for wells managinghazardous waste, as set forth in§ 144.14.

(5) Monitoring and reportingrequirements as set forth in 40 CFR Part146. The permittee shall be required toidentify types of tests and methods usedto generate the monitoring data.

(6) Plugging and abandonment. AnyClass I, II or III permit shall include, andany Class V permit may include,conditions to ensure that plugging andabandonment of the well will not allowthe movement of fluids either into anunderground source of drinking water orfrom one underground source ofdrinking water to another. Applicantsfor a UIC permit shall submit a plan forplugging and abandonment. Where theplan meets the requirements of thisparagraph, the Director shall incorporateit into the permit as a condition. Wherethe Director's review of an applicationindicates that the permittee's plan isinadequate, the Director shall requirethe applicant to revise the plan,prescribe conditions meeting therequirements of this paragraph, or denythe application. For purposes of thisparagraph, temporary intermittentcessation of injection operations is notabandonment.

(7) Financial responsibility. Thepermittee is required to maintainfinancial responsibility and resources toclose, plug, and abandon theunderground injection operation in amanner prescribed by the Director. Thepermittee must show evidence offinancial responsibility to the Directorby the submission of surety bond, orother adequate assurance, such asfinancial statements or other materialsacceptable to the Director.

(8) Mechanical integrity. A permit forany Class I, II or III well or injectionproject which lacks mechanical integrityshall include, and for any Class V well

may include, a condition prohibitinginjection operations until the permitteeshows to the satisfaction of the Directorunder § 146.08 that the well hasmechanical integrity.

(9) Additional conditions. TheDirector shall impose on a case-by-casebasis such additional conditions as arenecessary to prevent the migration offluids into underground sources ofdrinking water.

(b)(1) In addition to conditionsrequired in all permits the Director shallestablish conditions in permits asrequired on a case-by-case basis, toprovide for and assure compliance withall applicable requirements of theSDWA and Parts 144, 145, 146 and 124.

(2) For a State issued permit, anapplicable requirement is a Statestatutory or regulatory requirenentwhich takes effect prior to finaladministrative disposition of the permit.For a permit issued by EPA, anapplicable requirement is a statutory orregulatory requirement (including anyinterim final regulation) which takeseffect prior to the, issuance of the permit(except as provided in § 124.86(c) forUIC permits being processed underSubparts E or F of Part 124). Section124.14 (reopening of comment period)provides a means for reopening EPApermit proceedings at the discretion ofthe Director where new requirementsbecome effective during the permittingprocess and are of sufficient magnitudeto make additional proceedingsdesirable. For State and EPAadministered programs, an applicablerequirement is also any requirementwhich takes effect prior to themodification or revocation andreissuance of a permit, to the extentallowed in § 144.39.

(3) New or reissued permits, and tothe extent allowed under § 144.39modified or revoked and reissuedpermits, shall incorporate each of theapplicable requirements referenced in§ 144.52.

(c) Incorporation. All permitconditions shall be incorporated eitherexpressly or by reference. Ifincorporated by reference, a specificcitation to the applicable regulations orrequirements must be given in thepermit.

§ 144.53 Schedule of compliance.(a) General. The permit may, when

appropriate, specify a schedule ofcompliance leading to compliance withthe SDWA and Parts 144, 145, 146, and124.

(1) Time for compliance. Anyschedules of compliance shall requirecompliance as soon as possible, and in

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no case later than 3 years after theeffective date of the permit.

(2) Interim dates. Except as providedin paragraph (b)(1](ll) of this section, if apermit establishes a schedule ofcompliance which exceeds 1 year fromthe date of permit issuance, the scheduleshall set forth interim requirements andthe dates for their achievement.


(ii) If the time necessary forcompletion of any interim requirement ismore than I year and is not readilydivisible -into stages for completion, thepermit shall specify interim dates for thesubmission of reports of progresstoward completion of the interimrequirements and indicate a projectedcompletion date.

(3) Rep'brting. The permit shall bewritten to require that if paragraph (a)(1)of this section is applicable, progressreports be submitted no later than 30days following each interim date andthe final date of compliance.

(b) Alternative schedules ofcompliance. A permit applicant orpermittee may cease conductingregulated activities (by plugging andabandonment rather than continue tooperate and meet permit requirementsas follows:

(1) If the permittee decides to ceaseconducting regulated activities at agiven time within the term of a permitwhich has already been issued:


(ii) The permittee shall ceaseconducting permitted activities before-noncompliance with any interim or finalcompliance schedule requirementalready specified in the permit.

(2) If the decision to cease conductingregulated activities is made beforeissuance of a permit whose term willinclude the termination date, the permitshall contain a schedule leading totermination which will ensure timelycompliance with applicablerequirements.

(3) If the permittee is undecidedWhether to cease conducting reg-ulatedactivities, the Director may issue ormodify a permit to contain twoschedules as follows:

(i) Both schedules shall contain anidentical interim dealins requiring afinal decision on whetier to ceaseconducting regulated activities no laterthan a date which ensures sufficienttime to comply with applicablerequirements in a timely manner if thedecision is to continue conductingregulated activities;

(ii) One schedule shall lead to timelycompliance with applicablerequirements;

(iii) The second schedule shall lead tocessation of regulated activities by adate which will ensure timelycompliance with applicablerequirements;

(iv) Each permit containing twoschedules shall include a requirementthat after the permittee has made a finaldecision under paragraph (b(3)(i) of thissection it shall follow the scheduleleading to compliance if the decision isto continue conducting regulatedactivities, and follow the scheduleleading to termination if the decision isto cease conducting regulated activities.

(4) The applicant's or permittee'sdecision to cease conducting regulatedactivities shall be evidenced by a firmpublic commitment satisfactory to theDirector, such as a resolution of theboard of directors of a corporation.

§ 144.54 Requirements for recording andreporting of monitoring results.



(b) Required monitoring includingtype, intervals, and frequency sufficientto yield data which are representative ofthe monitored activity including whenappropriate, continuous monitoring;

(c) Applicable feporting requirementsbased upon the impact of the regulatedactivity and as specified in Part 146.Reporting shall be no less frequent thanspecified in the above regulations.

§ 144.55 Corrective action.(a) Coverage. Applicants for Class I,

II, (other than existing), or III injectionwell permits shall identify the locationof all known wells within the injectionwell's area of review which penetratethe injection zone, or in the case ofClass II wells operating over the fracture-pressure of the injection formation, allknown wells within the area of reviewpenetrating formations affected by theincrease in pressure. For such wellswhich are improperly sealed, completed,or abandoned, the applicant shall alsosubmit a plan consisting of such steps ormodiicalions as are necessary toprevent movement of fluid intounderground sources of drinking water("corrective action". Where the plan isadequate, the Director shall incorporateit into the permit as a condition. Wherethe Director's review of an applicationindicates that the permittee's plan isinadequate (based on the factors in

§ 146.07], the Director shall require theapplicant to revise the plan, prescribb a -plan for corrective action as a conditionof the permit under paragraph (b) of thissection, or deny the application. TheDirector may disregard the provisions of§ 146.06 (Area of Review and § 146.07(Corrective Action) when reviewing anapplication to permit an existing Class IIwell.

(b) Requirements-(1) Existing injection wells. Any

permit issued for an existing injectionwell (other than Class II) requiringcorrective action shall include acompliance schedule requiring anycorrective action accepted or prescribedunder paragraph (a) of this section to becompleted as soon as possible.(2) New injection wells. No owner or

operator of a new injection well maybegin injection until all requiredcorrective action has been taken.

(3] Injection pressure limitation. TheDirector may require as a permitcondition that injection pressure be solimited that pressure in the injectionzone does not exceed hydrostaticpressure at the site of any improperlycompleted or abandoned well within thearea of review. This pressure limitationshall satisfy the corrective actionrequirement. Alternatively, suchinjection pressure limitation can be partof a compliance schedule and last untilall other required corrective action hasbeen taken.

(4) Class-Ill Wells Only. When settingcorrective action requirements theDirector shall consider the overall effectof the project on the hydraulic gradientin potentially affected USDWs, and thecorresponding changes in potentiometricsurface(s) and flow direction(s) ratherthan the discrete effect of each well. If adecision is made that corrective actionis nof necessary based on thedeterminations above, the monitoringprogram required in § 146.33(b) shall bedesigned to verify the validity of suchdeterminations.

Part 145 is added to read as follows:

PART 145-STATE UIC PROGRAM

REQUIREMENTS

Subpart A-Genera3 Program RequirementsSec.145.1 Purpose and scope.145.2 Definitions.

Subpart B-Requirements for StatePrograms145.11 Requirements for permitting.145.12 Requizements for compliance


authority.145.14 Sharing of information.-

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Federal Register / Vol. 48, No. 64 J Friday, April 1, 1983 / Rules and Regulations

Subpart C-State Program SubmissionsSec.145.21 General requirements for program

approvals..145.22 Elements of a program submission.145.23 Program description.145.24 Attorney General's statement.145.25 Memorandum of Agreement with the

Regional Administrator.

Subpart D-Program Approval, Revisionand Withdrawal145.31 Approval process.145.32 Procedures for revision of State



programs.Authority: Pub. L. 93-523, as amended by

Pub. L. 95-190, Pub. L. 96-63 and Pub. L. 96-502, 42 U.S.C. 300f et seq.

Subpart A-General. Program

Requirements

§ 145.1 Purpose and scope.(a) This part specifies the procedures

EPA will follow in approving, revising,and withdrawing State programs underSection 1422 (underground injectioncontrol-UIC) of SDWA, and includesthe elements which must be part ofsubmissions to EPA for programapproval and the substantive provisionswhich must be present in State programsfor them to be approved.

(b) State submissions for. programapproval must be made in accordancewith the procedures set out in SubpartC. This includes developing andsubmitting to EPA a program description(§ 145.23), an Attorney General'sStatement (§ 145.24), and aMemorandum of Agreement with theRegional Administrator (§ 145.25).

(c) The substantive provisions whichmust be included in State programs toobtain approval include requirementsfor permitting, compliance evaluation,enforcement, public participation, andsharing of information. Therequirements are found in Subpart B.Many of the requirements for Stateprograms are made applicable to Statesby cross-referencing other EPAregulations. In particular, many of theprovisions of Parts 144 and 124 are madeapplicable to States by the referencescontained in § 145.11.

(d) Upon submission of a completeprogram, EPA will conduct a publichearing, if interest is shown, anddetermine whether to approve ordisapprove the program taking intoconsideration the requirements of thisPart, the Safe Drinking Water Act andany comments received.

(e) Upon approval of a State program,the Administrator shall suspend theissuance of Federal permits for those

activities subject to the approved Stateprogram.

(f) Any State program approved bythe Administrator shall at all times beconducted in accordance with therequirements of this Part.

(g) Nothing in this Part precludes aState from:

(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. Where ah approvedState program has a greater scope ofcoverage than required by Federal lawthe additional coverage is not part of theFederally approved program.

§ 145.2 Definitions.The definitions of Part 144 apply to all

subparts of this Part.

Subpart B-Requirements for State

Programs

§ 145.11 Requirements for permitting.(a) All State programs under this Part

must have legal authority to implementeach of the following provisions andmust be administered in conformancewith each; except that States are notprecluded from omitting or modifyingany provisions to impose more stringentrequirements.

(1) § 144.5(b)-(Confidentialinformation);

(2) § 144.6-(Classification of injectionwells);

(3) § 144.7-(Identification ofunderground sources of drinking waterand exempted aquifers);

(4) § 144.8-(Noncompliancereporting);

(5) § 144.11-(Prohibition ofunauthorized injection);

(6) § 144.12--(Prohibition ofmovement of fluids into undergroundsources of drinking water);

(7) § 144.13-(Elimination of Class IVwells);

(8) § 144.14-(Requirements for wellsmanaging hazardous waste);

(9) § 144.21-§ 144.26-(Authorization.by rule);

(10) § 144.31-(Application for apermit);

(11) § 144.32-(Signatories);(12) § 144.33--(Area Permits);(13) § 144.34--Emergency permits);(14) § 144.35-(Effect of permit);(15) § 144.36-(Duration);(16) § 144.38-(Permit transfer);(17) § 144.39--(Permit modification);(18) § 144.40-(Permit termination);(19) § 144.51-(Applicable permit

conditions);

(20) § 144.52-(Establishing permit-conditions);

(21) § 144.53(a)-(Schedule ofcompliance);

(22) § 144.54-(Monitoringrequirements);

(23) § 144.55--(Corrective Action);(24) § 124.3(a)-(Application for a

permit);(25) § 124.5 (a), (c), (d), and (f)-

(Modification of permits);(26) § 124.6 (a), (c), (d), and (e]-(Draft

Permit);(27) § 124.8-(Fact sheets);(28) § 124.10 (a)[1)(ii), {a)(1}{iii),

(a)(1)(v), (b), (c), (d), and (e)-(Publicnotice);


(30) § 124.12(a)-(Public hearings);and

(31) § 124.17 (a) and (c)--(Response tocomments).

(b)(1) States need not implementprovisions identical to the provisionslisted in paragraphs (a) (1)-31) of thissection. Implemented provisions must,however, establish requirements at leastas stringent as the corresponding listedprovisions. While States may imposemore stringent requirements, they maynot make one requirement more lenientas a tradeoff for making anotherrequirement more stringent; for example,by requiring that public hearings be heldprior to issuing any permit whilereducing the amount of advance noticeof such a hearing.

(2) State programs may, if they haveadequate legal authority, implement anyof the provisions of Parts 144 and 124.See, for example § 144.37(d)(continuation of permits) and § 124.4(consolidation of permit processing).

§ 145.12 Requirements for complianceevaluation programs.

(a) State programs shall haveprocedures for receipt, evaluation,retention and investigation for possibleenforcement of all.notices and reportsrequired 'of permittees and otherregulated persons (and for investigationfor possible enforcement of failure tosubmit these notices and reports).


(1) A program which is capable ofmaking comprehensive surveys of allfacilities and activities subject to theState Director's authority to identifypersons subject to regulation who havefailed to comply with permit application

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or other program requirements. Anycompilation, index, or inventory of suchfacilities and activities shall be madeavailable to the Regional Administratorupon request;

(2) A program for periodic inspectionsof the facilities and activities subject toregulation. These inspections shall beconducted in a manner designed to:


(ii) Verify the accuracy of informationsubmitted by permittees and otherregulated persons in reporting forms andother forms supplying monitoring data;and



(4) Procedures for receiving andensuring proper consideration ofinformation submitted by the publicabout violations. Public effort inreporting violations shall be encouragedand the State Director shall makeavailable information on reportingprocedures.

(c) The State Director and Stateofficers engaged in complianceevaluation shall have authority to enterany site or premises subject toregulation or in which records relevantto program operation are kept in orderto copy any records, inspect, monitor orotherwise investigate compliance withpermit conditions and other programrequirements. States whose law requiresa search warrant before entry conformwith this requirement.

(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.



(1) To restrain immediately andeffectively any person bi, order or bysuit in State court from engaging in anyunauthorized activity which isendangering or causing damage topublic health or environment;

[Note.-This paragraph requires that Sateshave a mechanism (e.g., an administrativecease and desist order or the ability to seek a

temporary restraining order) to stop anyunauthorized activity endangering publichealth or the environment.]

(2) To sue in courts of competentjurisdiction to enjoin any threatened orcontinuing violation of any programrequirement, including permitconditions, without the necessity of aprior revocation of the permit;

(3) To assess or sue to recover in courtcivil penalties and to seek criminalremedies, including fines, as follows:

(i) For all wells except Class II wells,civil penalties shall be recoverable forany program violation in at least theamount of $2,500 per day. For Class IIwells, civil penalties shall berecoverable for any program violation inat least the amount of $1,000 per day.

(ii) Criminal fines shall be recoverablein at least the amount of $5,000 per dayagainst any person who willfullyviolates any program requirement, or forClass II wells, pipeline (production)severance shall be imposable againstany person who willfully violates anyprogram requirement.

[Note.-In many States the State Directorwill be represented in State courts by theState Attorney General or other appropriatelegal officer. Although the State Director neednot appear in court actions he or she shouldhave power to request that any of the aboveactions be brought.]

(b)(1) The maximum civil penalty orcriminal fine (as provided in paragraph(a)(3) of this section) shall be assessablefor each instance of violation and, if theviolation is continuous, shall beassessable up to the maximum amountfor each day of violation.

(2) The burden of proof and degree ofknowledge or intent required underState law for establishing violationsunder paragraph (a)(3) of this section,shall be no greater than the burden ofproof or degree of knowledge or intentEPA must provide when it brings anaction under the Safe Drinking WaterAct.

[Note.-For example, this requirement isnot met if State law includes mental state asan element of prodf for civil violations.]

(c) Any civil penalty assessed, sought,or agreed upon by the State Directorunder paragraph (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 the'likelihood of success in establishing theunderlying violation(s) in such litigation.If civil penalty, together with the costsof expeditious compliance, would be soseverely disproportionate to theresources of the violator as to jeopardizecontinuance in business, the payment of

the penalty may be deferred or thepenalty may be forgiven in whole orpart, as circumstances warrant. In thecase of a penalty for a failure to meet astatutory or final permit compliancedeadline, "appropriate to the violation,"as used in this paragraph, means apenalty which is equal to:





(5) An amount, if any, appropriate toreflect any part of the noncomplianceatt'ributable to the government itself;and minus



Procedures for assessment by the State ofthe costs of investigations, inspections, ormonitoring surveys which lead to theestablishment of violations;

Procedures which enable the State toassess or to sue any persons responsible forunauthorized activities for any expensesincurred.by the State in removing, correcting,or terminating any adverse effects uponhuman health and the environment resultingfrom.the unauthorized activity, or both; and

Procedures for the administrativeassessment of penalties by the Director.)


(1) Authority which allowsintervention as of right in any civil oradministrative action to obtain remediesspecified in paragraph (a) (1), (2) or (3)of this section by any citizen having aninterest which is or may be adverselyaffected; or

(2) Assurance that the State agency 'orenforcement authority will:



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{iii) Publish notice of and provide atleast 30 days for public comment on anyproposed settlement of a Stateenforcement action.


in the administration of a State programshall be available to EPA upon requestwithout restriction. If the informationhas been submitted to the State under aclaim of confidentiality, the State mustsubmit that claim to EPA whenproviding information under this section.Any information obtained from a Stateand subject to a claim of confidentialitywill be 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 shall furnish to States withapproved programs the information inits files not submitted under a claim ofconfidentiality which the State needs toimplement its approved program. EPAshall furnish to States with approvedprograms information submitted to EPAunder a claim of confidentiality, whichthe State needs to implement itsapproved program, subject to theconditions in 40 CFR Part 2.

Subpart C-State ProgramSubmissions

§ 145.21 General requirements forprogram approvals.

(a) States shall submit to theAdministrator a proposed State UICprogram complying with § 145.22 of thisPart within 270 days of the date ofpromulgation of the UIC regulations onJune 24, 1980. The administrator may, forgood cause, extend the date forsubmission of a proposed State UICprogram for up to an additional 270days.

(b) States shall submit to theAdministrator 6 months after the date ofpromulgation of the UIC regulations 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§ 145.21(a), the State shall submit asecond report six months after the firstreport is due. The Administrator mayprescribe the manner and form of thereport.

(c) EPA will establish a UIC programin any State which does not comply withparagraph (a) of this section. EPA willcontinue to operate a UIC program insuch a State until the State receivesapproval of a UIC program in

accordance with the the requirements fthis Part.

[Note.-States which are authorized toadminister 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 402(b](1)(D) of CWA requires thatNPDES States have the authority "to issuepermits which control the disposal 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 from thedefinition of "pollutant." If the State'sstatutory authority contains a similarexclusion it may need to be modified toqualify for UIC program approval.]

(d) If a State can demonstrate toEPA's satisfaction that there are nounderground injections within the Statefor one or more classes of injectionwells (other than'Class IV wells) subjectto SDWA and that such injectionscannot legally occur in the State untilthe State has developed an approvedprogram for those classes of injections,the State need not submit a program toregulate those injections and a partialprogram may be approved. Thedemonstration of legal prohibition shallbe made by either explicitly banningnew injections of the class not coveredby the State program or providing acertification from the State AttorneyGeneral that such new injections cannotlegally occur until the State hasdeveloped an approved program for thatclass. The State shall submit a programto regulate both those classes ofinjections for which a demonstration isnot made and class IV wells.

(e) When a State UIC program is fullyapproved by EPA to regulate all classesof injections, the State assumes primaryenforcement authority under Section1422[b)(3) of SDWA. EPA retainsprimary enforcement responsibilitywhenever the State program isdisapproved in whole or in part. Stateswhich have partially approved programshave a'uthority to enforce any violationof the approved portion of theirprogram. EPA retains authority toenforce violations of State undergroundinjection control programs, except that,when a State has a fully approvedprogram, EPA will not take enforcementactions without providing prior notice tothe State and otherwise complying withSection 1423 of SDWA.

(f) A State can assume primaryenforcement responsibility for the UICprogram, notwithstanding § 145.21(3),when the State program is unable toregulate activities on Indian landswithin the State. EPA will administer

the program on Indian lands if the Statedoes not seek this authority.

§ 145.22 Elemnents of a programsubmission.

(a)-Any State that seeks to administera program under this Part shall submitto the Administrator at least threecopies of a program submission. Thesubmission shall contain the following:


(2) A complete program description,as required by § 145.23, describing howthe State intends to carry out itsresponsibilities under this Part;

(3) An Attorney General's statementas required by § 145.24;

(4) A Memorandum of Agreementwith the Regional Administrator asrequired by § 145.25;


(6) The showing required by§ 145.31(b) of the State's publicparticipation activities prior to programsubmission.

(b) Within 30 days of receipt by EPAof a State program submission, EPA willnotify the State whether its submissionis complete. If EPA finds that a State'ssubmission is complete, the statutoryreview period (i.e., the period of timeallotted for formal EPA-review of aproposed State program under the SafeDrinking Water Act) shall be deemed tohave begun on the date of receipt of theState's submission. If EPA finds that aState's submission is incomplete, thestatutory review period shall not beginuntil all the necessary information isreceived by EPA.



§ 145.23 Program description.Any State that seeks to administer a

program under this part shall submit adescription of the program it proposes toadminister in lieu of the Federalprogram under State law or under aninterstate compact. The programdescription shall include:.


(b) A description (includingorganization charts) of the organizationand structure of the State agency oragencies which will have responsibilityfor administering the program, including

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Federal Register / Vol. 48, No. 64 / Friday, April 1. 1983 / Rules and Regulatinns

the information listed below. If morethan one agency is responsible foradministration of a program, eachagency must have statewide jurisdictionover a class of activities. Theresponsibilities of each agency must bedelineated, their procedures forcoordination set forth, and an agencymay be designated as a "lead agency" tofacilitate communications between EPAand the State agencies having programresponsibility. When 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 agencystaff who will carry out the Stateprogram, including the number,occupations, and general duties of theemployees. The State need not submitcomplete job descriptions for everyemployee carrying out the Stateprogram.

(2) An itemization of the estimatedcosts of establishing and administeringthe program for the first two years afterapproval, including cost of the personnellisted in paragraph (b)(1) of this section,cost of administrative support, and costof technical support.

(3) An itemization of the sources andamounts of funding, including anestimate of Federal grant money,available to the State Director for thefirst two years after approval to meetthe costs listed in paragraph (b)(2) ofthis section, identifying any restrictionsor limitations upon this funding.

(c) A description of applicable Stateprocedures, including permittingprocedures and any State administrativeor judicial review procedures.

(d) Copies of the permit form(s),application form(s), reporting form(s),and manifest format the State intends toemploy in its program. Forms used byStates need not be identical to the formsused by EPA 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.

[Note.-States are encouraged to useuniform national forms established by theAdministrator. If uniform national forms areused, they may be modified to include theState Agency's name, address, logo, andother similar information, as appropriate, inplace of EPA's.]

(e) A complete description of theState's compliance tracking andenforcement program.

(f) AState UIC program descriptionshall also include:

(1) A schedule for issuing permitswithin five years after program approval

to all injection wells within the Statewhich are required to have permitsunder this Part and Part 144;

(2) The priorities (according to criteriaset forth in 40 CFR 146.09) for issuingpermits, including the number of permitsin each class of injection well which willbe issued each year during the first fiveyears of program operation;. (3) A description of how the Director

will implement the mechanical integritytesting requirements of 40 CFR 146.08,including the frequency of testing thatwill be required and the number of teststhat will be reviewed by the Directoreach year;

(4) A description of the procedurewhereby the Director will notify ownersand operators of injection wells of therequirement that they apply for andobtain a permit. The notificationrequired by this paragraph shall requireapplications to be filed as soon aspossible, but not later than four yearsafter program approval for all injectionwells requiring a permit;

(5) A description of any rule underwhich the Director proposes to authorizeinjections, including the text of the rule;

(6) For any existing enhancedrecovery and hydrocarbon storage wellswhich the Director proposes to authorizeby rule, a description of the procedurefor reviewing the wells for compliancewith applicable monitoring, reporting,construction, and financialresponsibility requirements of §§ 144.51and 144.52, and 40 CFR Part 146;

(7) A description of and schedule forthe State's program to establish andmaintain a current inventory of injectionwells which must be permitted underState law;

(8) Where the Director had designatedunderground sources of drinking waterin accordance with § 144.7(a), adescription and identification of all such-designated sources in the State;

(9) A description of aquifers, or partsthereof, which the Director hasidentified under § 144.7(b) as exemptedaquifers, and a summary of supportingdata;

(10) A description of and schedule forthe State's program to ban Class IVwells prohibited under § 144.13; and

(11) A description of and schedule forthe State's program to establish aninventory of Class V wells and to assessthe need for a program to regulate ClassV wells.

§ 145.24 Attorney General's statement.(a) Any State that seeks to administer

.a program under this Part shall submit astatement from the State AttorneyGeneral (or the attorney for those Stateor interstate agencies which haveindependent legal counsel) that the laws

of the State, or an interstate compact,provide adequate authority to carry outthe program described under § 145.23and to meet the requirements of thisPart. This statement shall includecitations to the specific statutes,administrative regulations, and, whereappropriate, judicial decisions whichdemonstrate adequate authority. Statestatutes and regulations cited by theState Attorney General or independentlegal counsel shall be in the form oflawfully adopted State statutes and-regulations at the time the statement issigned and shall be fully effective by thetime the program is approved. To qualifyas "independent legal counsel" theattorney signing the statement requiredby this section must have full authorityto independently represent the Stateagency in court on all matters pertainingto the State program.


(b) When a State seeks authority overactivities on Indian lands, the statementshall contain an appropriate analysis ofthe State's authority.


(a) Any State that seeks to administera program under this Part shall submit aMemorandum of Agreement. TheMemorandum of Agreement shall beexecuted by the State Director and theRegional Administrator and shallbecome effective when approved by theAdministrator. In addition to meetingthe requirements of paragraph (b) of thissection, the Memorandum of Agreementmay include other terms, conditions; oragreements consistent with this Part andrelevant to the administration andenforcement of the State's regulatoryprogram. The Administrator shall notapprove any Memorandum ofAgreement which contains provisionswhich restrict EPA's statutory oversightresponsibility.


(1) Provisions for the prompt transferfrom EPA to the State of pending permitapplications and any other informationrelevant to program operation notalready in the possession of the StateDirector (e.g., support files for permitissuance, compliance reports, etc.).When existing permits are transferredfrom EPA to State for administration,the Memorandum of Agreement shallcontain provisions specifying aprocedure for transferring theadministration of these permits. If aState lacks the authority to directlyadminister permits issued by the Federal

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government, a procedure may beestablished to transfer responsibility forthese permits.

[Note.-For example, EPA and the Stateand the permittee could agree that the Statewould issue a permit(s) identical to theoutstanding Federal permit which wouldsimultaneously be terminated.]

(2) Provisions specifying classes andcategories of permit applications, draftpermits, and proposed permits that theState will send to the RegionalAdministrator for review, comment and,where applicable, objection.

(3) Provisions specifying the frequencyand content of reports, documents andother information which the State isrequired to submit to EPA. The Stateshall allow EPA to routinely reviewState records, reports, and files relevantto the administration and enforcementof the approved program. State reportsmay be combined with grant reportswhere appropriate.


(i) Provisions for coordination ofcompliance monitoring activities by theState and by EPA. These may specifythe basis on which the RegionalAdministrator will select facilities oractivities within the State for EPAinspection. The Regional Administratorwill normally notify the State at least 7days before any such inspection; and


(5) When appropriate, provisions forjoint processing of permits by the Stateand EPA, for facilities or activitieswhich require permits from both EPAand the State under different programs.See § 124.4.


(c) The Memorandum of Agreement,the annual program and grant and theState/EPA Agreement should beconsistent. If the State/EPA Agreementindicates that a change is needed in theMemorandum of Agreement, theMemorandum of Agreement may beamended through the procedures setforth in this part. The State/EPAAgreement may not override theMemorandum of Agreement.

[Note.-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. Howeirer, it may still be appropriate tospecify in the MOA the basis for suchdetailed agreements, e.g., a provision in theMOA specifying that EPA will select facilitiesin the State for inspection annually as part ofthe State/EPA agreement.]

Subpart D-Program Approval,Revision and Withdrawal

§ 145.31 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 and 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 and to any other personswhom the agency has reason to believeare interested;(2) Indicate when and where the

State'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 may 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) Identify a person that an interestedmember of the public may contact forfurther information. -

(b) After complying with therequirements of paragraph (a) of thissection any State may submit aproposed UIC program under section1422 of SDWA and § 145.22 of this Partto EPA for approval. Such a submissionshall include a showing of compliancewith paragraph (a] of this section; copiesof all written comments received by theState; a transcript, recording orsummary of any public hearing whichwas held by the State; and aresponsiveness summary whichidentifies the public participationactivities conducted, describes thematters presented to the public,summarizes significant commentsreceived, and responds to thesecomments. A copy of the responsivenesssummary shall be sent to those whotestified at the hearing, and others uponrequest.

(c) After determining that a State'ssubmission for UIC program approval iscomplete the Administrator shall issuepublic notice of the submission in theFederal Register and in accordance withparagraph (a)(1) of this section. Suchnotice shall:

(1) Indicate that a public hearing willbe held by EPA no earlier than 30 daysafter notice of the hearing. The notice

may require persons wishing to presenttestimony to file a request with theRegional Administrator, who maycancel the public hearing if sufficientpublic interest in a hearing is notexpressed;

(2) Afford the public 30 days after thenotice to comment on the State'ssubmission; and

(3) Note the availability of the Statesubmission for inspection and copyingby the public.(d) The Administrator shall approveState programs which conform to theapplicable requirements of this Part.

(e) Within 90 days of the receipt of acomplete submission (as provided in§ 145.22) or material amendment thereto,the Administrator shall by rule eitherfully approve, disapprove, or approve inpart the State's UIC program taking intoaccount any comments submitted. TheAdministrator shall give notice of thisrule in the Federal Register and inaccordance with paragraph (a)(1) of thissection. If the Administrator determinesnot to approve the State program or toapprove it only in part, the notice shallinclude a concise statement of thereasons for this determination. Aresponsiveness summary shall beprepared by the Regional Office whichidentifies the public participationactivities conducted, describes thematters presented to the public,summarizes significant commentsreceived, and explains the Agency'sresponse to'these comments. Theresponsiveness summary shall be sentto those who testified at the publichearing, and to others upon request.

§ 145.32 Procedures for revision of Stateprograms.

(a) Either EPA or the approved Statemay initiate program revision. Programrevision may be necessary when thecontrolling Federal or State statutory orregulatory authority is modified orsupplemented. The state shall keep EPAfully informed of any proposedmodifications to its basic statutory orregulatory authority, its forms,procedures, or priorities.

(b) Revision of a State program shallbe accomplished as follows:

(1) The State shall submit a modifiedprogram description, Attorney General'sstatement, Memorandum of Agreement,or such other documents as EPAdetermines to be necessary under thecircumstances.

(2) Whenever EPA determines that theproposed program revision issubstantial, EPA shall issue publicnotice and-provide an opportunity tocomment for a period of at least 30 days.The public notice shall be mailed to

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interested persons and shall bepublished in the Federal Register and inenough of the largest newspapers in theState to provide Statewide coverage.The public notice shall summarize theproposed revisions and provide for theopportunity to request a public hearing.Such a hearing will be held is there ifsignificant public interest based onrequests received.

(3) The Administrator shall approve ordisapprove program revisions based onthe requirements of this Part and of theSafe Drinking Water Act.

(4) A program revision shall becomeeffective upon the approval of theAdministrator. Notice of approval of anysubstantial revision shall be publishedin the Federal Register. Notice ofapproval of non-substantial programrevisions may be given by a letter fromthe Administrator to the State Governoror his designee.

(c) States with approved programsshall notify EPA whenever they proposeto transfer all or part of any programfrom the approved State agency to anyother State agency, and shall identifyany new division of responsibilitiesamong the agencies involved. The newagency is not authorized to administerthe program until approval by theAdministrator under paragraph (b) ofthis section. Organizational chartsrequired under § 145.23(b) shall berevised and resubmitted.

(d) Whenever the Administrator hasreason to believe that circumstanceshave changed with respect to a Stateprogram, he may request, and the Stateshall provide, a supplemental AttorneyGeneral's statement,. programdescription, or such other documents orinformation as are necessary.

(e) The State shall submit theinformation required under paragraph(b)(1) of this section within 270 days ofany amendment to this Part or 40 CFRParts 144, 146, or 124 which revises oradds any requirement respecting anapproved UIC program.


(a) The Administrator may withdrawprogram approval when a State programno longer complies with therequirements of this Part, and the Statefails to take corrective action. Suchcircumstances include the following:

(1) When the State's legal authority nolonger meets their requirements of thisPart, including:



(2) When 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; or

(iii) Failure to comply -with the publicparticipation requirements of this Part.

(3) When the State's enforcementprogram fails to comply with therequirements of this Part, including:

(i) Failure to act on violations ofpermits or other program requirements;



(4) When the State program fails tocomply with the terms of theMemorandum of Agreement requiredunder § 145.24.

§ 145.34 Procedures for Withdrawal ofState programs.

(a) A State with a program approvedunder this Part may voluntarily transferprogram responsibilities required byFederal law to EPA by taking thefollowing actions, or in such othermanner as may be agreed upon with theAdministrator.

(1) The State shall.give theAdministrator 180 days notice of theproposed transfer and shall submit aplan for the orderly transfer of allrelevant program information not in thepossession of EPA (such as permits,permit files, compliance files, reports,permit applications) which arenecessary fqr EPA to administer theprogram.

(2) Within 60 days of receiving thenotice and transfer plan, theAdministrator shall evaluate the State'stransfer plan and shall identify anyadditional information needed by theFederal government for programadministration and/or identify any otherdeficiencies in the plan.

(3) At least 30 days before the transferis to occur the Administrator shallpublish notice of the transfer in theFederal Register and in enough of thelargest newspapers in the State toprovide Statewide coverage, and shallmail notice to all permit holders, permitapplicants, other regulated persons andother interested persons on appropriateEPA and State mailing lists.

(b) Approval of a State UIC programmay be withdrawn and a Federalprogram established in its place whenthe Administrator determines, afterholding a public hearing, that the State

program is not in compliance with therequirements of SDWA and this Part.

(1) 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.

(2) Public Hearing. If the State has notdemonstrated 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 Stareprogram. Notice of such public hearingshall be published in the FederalRegister and in enough of the largestnewspapers in the State to attractstatewide attention, and mailed topersons on appropriate State and EPAmailing lists. This hearing shall beconvened not less than 60 days nor morethan 75 days following the publication ofthe notice of the hearing. Notice of thehearing shall identify theAdministrator's concerns. All interestedpersons shall be given opportunity tomake written or oral presentation on theState's program at the public hearing.

(3) Notice to State of Findings. Whenthe 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 Administratorshall 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.

Part 233 is added as follows:PART 233-404 STATE PROGRAM

TRANSFER REGULATIONS

Subpart A-General

Sec.233.1 Purpose and scope of Part 233.

Subpart B-Definitions and GeneralProgram Requirements233.2 Purpose and scope of Subpart B.233.3 Definitions.

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Sec.233.4 Application for a permit.233.5 Continuation of expiring permits.233.6 Signatories to permit applications and

reports.233.7 Conditions applicable to all permits.233.8 Establishing permit conditions.233.9 Duration of permits.233.10 Schedules of compliance.233.11 Requirements for recording and

reporting of monitoring results.233.12 Effect of a permit.233.13 Transfer of permits.

.233.14 Modification or revocation andreissuance of permits.

233.15 Termination of permits.233.16 Minor modifications of permits.233.17 Noncompliance and program

reporting by the Director.233.18 Confidentiality of information.

Subpart C-State Program Requirements233.20 Purpose and scope.233.21 Elements of a program submission.233.22 Program description.233.23 Attorney General's statement.233.24 Memorandum of Agreement with the

Regional Administrator.233.25 Memorandum of Agreement with the

Secretary.233.26 Requirements for permitting.233.27 Requirements for compliance


authority.233.29 Sharing of information.233.30 Coordination with other programs.233.31 Approval process.233.32 Procedures for revision of State



programs.233.35 Activities not requiring permits.233.36 Prohibitions.233.37 General permits.233.38 Emergency permits.233.39 Transmission of information to EPA

and other Federal agencies.233.40 EPA review of and objections to

State permits.233.41 Coordination requirements.

Authority: Clean Water Act, 33 U.S.C. 1251et seq.

Subpart A-General§ 233.1 Purpose and scope of Part 233.

(a) Coverage. Part 233 includesprovisions for the Dredge or Fill (404)Program under section 404 of the CleanWater Act. This Part includes therequirements which must be met for aState to administer its own program inlieu of the U.S, Army Corps of Engineersin "State regulated waters," andprovisions for EPA oversight of Stateissued 404 permits.(b) Structure. These permit regulations

are organized as follows: -(1] Subpart A. This Subpart contains

general information relating to theseregulations.

(2) Subpart B. This Subpart containsdefinitions for the 404 program, and

some basic permitting requirementsapplicable to state programs.

(3) Subpart C. This Subpart -establishes minimum programrequirements for an approvable stateprogram and for administering thepermit program subsequent to approval,including EPA oversight.

(4) Part 124. Part 233 incorporates byreference certain procedures forissuance of State 404 permits which areestablished in Part 124 of this chapter.

(c) Relation to other requirements. (1)Applicants for State issued permits mustuse State-prescribed forms which mustrequire at a minimum the informationlisted in these sections. All minimuminformation requirements for State 404permit applications appear in § 233.4.

(2) Technical regulations. The 404permit program covered in theseregulations has separate additionalregulations, located at 40 CFR Part 230,that contain technical requirements.These separate regulations are used bypermit-issuing authorities to determinewhat requirements must be placed inpermits if they are issued.

(d) Public participation. This ruleestablishes the requirements for publicparticipation in State permit issuanceand.enforcement proceedings, and in theapproval of State 404 programs. Theserequirements carry out the purposes ofthe public participation requirements of40 CFR Part 25 (Public Participation),and supersede the requirements of thatPart as they apply to actions coveredunder this Part.

(e) State authorities. Nothing in Part233 precludes more stringent Stateregulation of any activity covered bythese regulations, whether or nor underan approved State program.

(f) Federal 404 Program. Permitprogram requirements for the Federal404 program administered by the Corpsof Engineers appear in 33 CFR Parts 320-330, rather than in this Part.

Subpart B-Definitions and GeneralProgram Requirements

§ 233.2 Purpose and scope of Subpart B.Subpart B contains definitions for

State 404 programs (§ 233.3) and basicpermit requirements for state programs(§ § 233.4 through 233.18).

§ 233.3 Definitions.The following definitions apply to Part

233. Terms not defined in this sectionhave the meaning given by the CWA.When a defined term appears in adefinition, the defined term is sometimesplaced within quotation marks as an aidto readers.

Administrator means the •Administrator of the United States

Environmental Protection Agency, or anauthorized representative.

Application means the formsapproved by EPA for use in "approvedStates," including any approvedmodifications or revisions.

Approved program or approved Statemeans a State or interstate programwhich has been approved or authorizedby EPA under Subpart C.

Best management practices ("BMPs")means schedules of activities,prohibitions of practices, maintenanceprocedures, and other managementpractices to prevent or reduce thepollution of "waters of the UnitedStates," including methods, measures,practices, or design and performancestandards, which facilitate compliancewith section 404(b)(1) environmentalguidelines (40 CFR Part 230), effluentlimitations or prohibitions under section307(a), and applicable water qualitystandards.

BMPs means "best managementpractices."

CWA means the Clean Water Act(formerly referred to as the FederalWater Pollution Control Act or FederalWater Pollution Control ActAmendments of 1972) Pub. L. 92-500, asamended by Pub. L. 95-217 and Pub. L.95-576, 33 U;S.C. 1251 et seq.

Director means the chiefadministrative officer of any state orinterstate agency operating an"approved program," or the delegatedrepresentative of the State Director. Ifresponsibility is divided among two ormore State or. interstate agencies, "StateDirector" means the chief administrativeofficer of the State or interstate agencyauthorized to perform the particularprocedure or function to which referenceis made.

Discharge of dredged material meansany addition from any "point source" of"dredged material" into "waters of theUnited States." The term includes theaddition of dredged material into watersof the United States and the runoff oroverflow from a contained land or waterdredge material disposal area.Discharges of pollutants into waters ofthe United States resulting from thesubsequent onshore processing ofdredged material are not includedwithin this term and are subject to theNPDES program even though theextraction and deposit of such materialmay also require a permit from theCorps of Engineers or the State section404 program.

Discharge of fill material means theaddition from any "point source" of "fillmaterial" into "waters of the UnitedStates." The term includes the followingactivities in waters of the United States:

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Federal Register / Vol. 48, No. 64 Friday, April 1, 1983 / Rules and Regulations

placement of fill that is.necessary for theconstruction of any structure; thebuilding of any structure orimpoundment requiring rock, sand, dirt,or other materials for its construction;site-development fill for recreational,industrial, commercial, residential, andother uses; causeways or road fills;dams and dikes: artificial islands;property protection and/or reclamationdevices such as riprap, groins, seawalls,breakwaters, and revetments; beachnourishment; levees; fill for structuressuch as sewage treatment facilities,intake and outfall pipes associated withpower plants and subaqueous utilitylines; and artificial reefs.

Disposal site means that portion ofthe "waters of the United States"enclosed within fixed boundariesconsisting of a bottom surface area andany overlaying volume of water. In thecase of "wetlands" on which water isnot present, the disposal site consists ofthe wetland surface area. Fixedboundaries may consist of fixedgeographic point(s) and associateddimensions, or of a discharge point andspecific associated dimensions.

Draftpermit means a documentprepared under § 124.6 of this Chapterindicating the Director's tentativedecision to issue or deny, modify,revoke and reissue, terminate, or reissuea "permit." A notice of intent toterminate a permit, and a notice ofintent to deny a permit, as discussed'in§ 124.5 of this chapter, are types of"draft permits." A denial of a request formodification, revocation and reissuance,or termination, as discussed in § 124.5, isnot a "draft permit." A "proposedpermit" is not a "draft permit."

Dredged material means matirial thatis excavated or dredged from "waters ofthe United States."

Effluents means "dredged material" or"fill material," including return flowfrom confined sites.

Emergency permit means a State 404"permit" issued in accordance with§ 233.38.

Environmental Protection Agency("EPA") means the United States.Environmental Protection Agency.

EPA means the United' States"Environmental Protection Agency."

Facility or activity means any State404 dredge or fill activity, or any otherfacility or activity (including land orappurtenances thereto) that is subject toregulation under the 404 program.

Fill material means any "pollutant"which replaces portions of the "watersof the United States" with dry land orwhich changes the bottom elevation of awater body for any purpose.

Generalpermit means 404 "permit"issued under § 233.37 authorizing a

category 6f discharges under the CWAwithin a geographical area.

Interstate agency means an agency oftwo 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 Administratorunder the CWA.

Major facility means any 404 "facilityor activity" classified as such by theRegional Administrator in conjunctionwith the State Director.

Owner or operator means the owneror operator of any "facility or activity"subject to regulation under the 404program.

Permit means an authorization,license, or equivalent control documentissued by an "approved State" toimplement the requirements of this Partand Part 124. "Permit" includes 404"general permit" (§ 233.37), and 404"emergency permit" (§ 233.38).


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 irrigated agriculture.

Pollutant means dredged spoil, solidwaste, incinerator residue, filterbackwash, sewage, garbage, sewagesludge, munitions, chemical wastes,biological materials, radioactivematerial (except those regulated underthe Atomic Energy Act of 1954, asamended (42 U.S.C. § 2011 et seq.)),heat, wrecked or discarded equipment,rock, sand, cellar dirt and industrial,municipal, and agricultural wastedischarged into water. It does not mean:

(a) Sewage from vessels; or(b) Water, gas, or other material

which is injected into a well 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 theState determines that injection ordisposal will not result in thedegradation of ground or surface waterresource.

[Note.-Radioactive materials covered bythe Atomic Energy Act are those

encompassed in its definition of source,byproduct, or special nuclear producedisotopes. See Train v. Colorado PublicInterest Research Group Inc. 426 U.S. 1(1976)]

Regional Administrator means theRegional Administrator of theappropriate Regional Office of theEnvironmental Protection Agency or theauthorized representative of theRegional Administrator.

Schedule of compliance means aschedule of remedial measures includedin a "permit", including an enforceablesequence of interim requirements (forexample, actions, operations, ormilestofie events) leading to compliancewith the CWA and its regulations.

Secretary means the Secretary of theArmy, acting through the Chief ofEngineers.-

Section 404 program or State 404program or 404 means an "approvedState program" to regulate the"discharge of dredged material" and the"discharge of fill material" under section404 of the Clean Water Act in "Stateregulated waters."


State means any of the 50 States, theDistrict of Columbia, Guam, theCommonwealth of Puerto Rico, theVirgin Islands, American Samoa, andthe Trust Territory of the Pacific Islands.

State/EPA Agreement means anagreement between the RegionalAdministrator and the State whichcoordinates EPA and State activities,responsibilities and programs includingthose under the CWA.

State regulated waters means those"waters of the United States" in whichthe Corps of Engineers suspends theissuance of section 404 permits uponapproval of a State's section 404 permitprogram by the Administrator undersection 404(h). These waters shall beidentified in the program description asrequired by § 233.22(h)(1). The Secretaryshall retain jurisdiction over thefollowing waters (see CWA section404(g)(1)):

(a) Waters which are subject to theebb and flow of the tide;

(b) Waters which are presently used,or are susceptible to use in their naturalcondition or by reasonable improvementas a means to transport interstate orforeign commerce shoreward to theirordinary high water mark; and

(c) "Wetlands" adjacent to waters inparagraphs (a) and (b) of this definition.

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Toxic pollutant means any pollutantlisted as toxic under section 307(a)(1) ofCWA.

Waters of the United States or watersof the U.S. means:

(a) 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;

(b) All interstate waters, includinginterstate "wetlands;"

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

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

(2] From which fish or shellfish are orcould be taken and sold in interstate orforeign commerce; or

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

Wetlands means those areas that areinundated or saturated by surface orground water at a frequency andduration sufficient to support, and thatunder normal circumstances do support,a prevalence of vegetation typicallyadapted for life in saturated soilconditions. Wetlands generally includeswamps, marshes, bogs and similarareas.

§ 233.4 Application for a permit.(a) Publicity and preopplication

consultation The State director shallmaintain a program to inform, to theextent possible, potential applicants forpermits of the requirements of the Stateprogram and of the steps required toobtain permits for activities in Stateregulated waters. The State Director isencouraged to include preapplicationconsultation as part of this program toassist applicants in understanding therequirements of the environmentalguidelines issued under section 404(b)11)of CWA (40 CFR Part 230) and infulfilling permit applicationrequirements.

(b) Application for permit. Exceptwhen an activity is authorized by ageneral permit unrier § 233.27 or isexempt from the requirement to obtain apermit under § 233.35, any person whoproposes to discharge dredged or fillmaterial into State regulated waters

: shall complete, sign and submit anapplication to the State Director. Stateapplication forms are subject to EPA

revievi and approval. Procedures forapplications, issuance and.administration of emergency permits arefound exclusively in § 233.38.. (c) Who applies? When a facility oractivity is owned by one person but isoperated by another person, it is theoperator's duty to obtain a permit.

(d) Completeness. The Director shallnot issue a 404 permit before receiving acomplete application for a permit exceptfor 404 general permits or emergencypermits. An application for a permitunder a program is complete when theDirector receives an application formand any supplemental informationwhich are completed to his or hersatisfaction. The completeness of anyapplication for a permit shall be judgedindependently of the status of any otherpermit application or permit for thesame facility or activity.

(e) Content of Application. A completeapplication shall include the followinginformation:

(1) A complete description of theproposed activity including:

(i) Name, address, and phone numberof the applicant; and the names,addresses, and phone numbers ofowners of properties adjacent to thesite; and if appropriate, the location anddimensions of adjacent structures;

(ii) A description of the source of thedredged or fill material and method ofdredging used, if any-, a description ofthe type, composition and quantity ofthe material; the proposed method oftransportation and disposal of thematerial, including the type ofequipment to be used. and the extent (inacres) of the area of waters of theUnited States to be filled or used fordisposal;

(iii) The purpose and intended use ofthe proposed activity (including whetherit is water-dependent); a description ofthe use of any structures to be erectedon the fill; and a schedule for theproposed activity;

(iv) A list of the approvals required byother Federal, interstate, State and localagencies for the activity, including allapprovals or denials received; and

(v) A vicinity map identifying theproposed disposal site and the local,jurisdiction closest to the disposal site.

(2) Information about the disposal siteneeded to evaluate compliance with 40CFR Part 230, including the following:

(i) A description of knownalternatives to the proposed discharge,including alternative disposal sites,construction methods, methods ofdischarge, and reasons for rejecting thealternatives;

(ii) A description of special aquaticsites, public use areas, wildlife refuges,and public water supply intakes in the

affected or adjacent areas that mayrequire special protection orpreservation;

(iii) Plants, fish, shellfish and wildlifein the disposal site which may bedependent on water quality andquantity:

(iv) Uses of the disposal site whichmight affect human health and welfare;and

(v) A description of technologies ormanagement practices by which theapplicant proposes to minimize adverseenvironmental effects of the discharge.Guidelines for minimizing the adverseeffects of discharges of dredged or fillmaterial are found in 40 CFR Part 230.

[Note.-The State shall provide permitapplicants with guidance, either through theapplication form or on an individual basis,regarding the level of detail of informationand documentation required under thisparagraph. The level of detail shall bereasonably commensurate with the type andsize of discharge, proximity to critical areas,likelihood of presence of long-lived toxicchemical substances, and degree ofenvironmental degradation.]

. (3) One original set of drawings andmaps, or one set of drawings and mapsof reproducible quality, including:

(i) A map showing the following inplan view:

(A) Location of the activity siteincluding latitude, longitude, and rivermile, 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 the closest practicable accessto the sites;

(E) North arrow,(F) Arrows showing flow and.

circulation patterns;(G) Existing shorelines or ordinary

high watermark;(H) Location of known wetlands;(I) Water depths and bottom

configuration around the project;(1) Delineation of disposal site;(K) Size-relationship between the

proposed disposal site and affectedwaters (e.g., a X acre fill in a 15-acrewetland);

(L) Location of previously useddredged material disposal sites withremaining capacity in the vicinity of theprojects. The map must indicateretention levees, weirs, and any otherdevices for retaining dredged or fillmaterial; and

(M) Location of structures, if any, inwaters of the United States immediatelyadjacent to the proposed activity,

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including permit numbers, if known..Identify purposes of all structures.

(ii) A cross-sectional view of theproposed project showing the following:

(A] Water elevations;(B] Water depths at waterward face of

proposed work, or if dredging isproposed, showing dredging grade;

(C) Cross-section of fill;(D) Elevation of spoil areas;(E) Location of wetlands; and(F) Delineation of disposal site.(iii) Notes on all maps or drawings

submitted, including:(A] A list of names of adjacent

property owners whose property alsoadjoins the water and who are notshown in the plan view;

(B) A title block for each sheetsubmitted identifying the proposedactivity and containing the name of thebody of water; river mile, if applicable;name of county, State and nearestincorporated municipality; name ofapplicant; number of the sheet and thetotal number of sheets in set; and datethe drawing was prepared.

(C) Graphic or numerical scale.(f) Recordkeeping. Applicants shall'

keep records of all data used tocomplete permit applications and anysupplemental information submittedunder § 233.28 for a period of at least 3years from the date the application issigned.

§ 233.5 Continuation of expiring permits.A Corps of Engineers issued permit

does not continue in force beyond itsexpiration date under Federal law if atthat time a State is the permittingauthority. States authorized toadminister the 404 program maycontinue either Corps of Engineers orState issued permits until the effectivedate of the new permits, if State lawallows. Otherwise, the facility oractivity is operating without a permitfrom the time of expiration of the oldpermit to the effective date of the State-issued new permit.



(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, Federal,or other public agency: by either aprincipal executive officer or rankingelected official.

(b) Reports. All reports required bypermits and other information requestedby the Director shall be signed by a

person described in paragraph (a] 5f thissection, or by a duly authorizedrepresentative of that person. A personis a duly authorized representative onlyif:


(2) The authorization specifies eitheran individual or a position havingresponsibility for the overall operationof the regulated facility or activity, suchas the position of plant manager,operator of a well or a well field,superintendent, or position of equivalentresponsibility. (A duly authorizedrepresentative may thus be either anamed individual or any individualoccupying a named position.; and

(3) The written authorization is.submitted to the Director.

(c) Changes to authorization. If anauthorization under paragraph (b) of thissection is no longer accurate because adifferent individual or position hasresponsibility for the overall operationof the facility, a new authorizationsatisfying the requirements of paragraph(b) of this section must be submitted tothe Director prior to or together with any,reports, information, or applications tobe signed by an authorizedrepresentative.

(d) Certification. Any person signing adocument under paragraphs (a) or (b) ofthis section shall make the followingcertification:

I certify under penalty of law that I havepersonally examined and am familiar withthe information submitted in this documentand all attachments and that, based on myinquiry of those individuals immediatelyresponsible for obtaining the information, Ibelieve that the information is true, accurate,and complete. I am aware that there aresignificant penalties for submitting falseinformation, including the possibility of fineand imprisonment.

§ 233.7 Conditions applicable to allpermits.. The following conditions apply to all

404 permits. All such conditions shall beincorporated into the permits eitherexpressly or by reference. Ifincorporated by reference, a specificcitation to these regulations (or thecorresponding approved Stateregulations) must be given in the permit.

(a) Duty to comply. The permitteemust comply with all conditions of thispermit. Any permit noncomplianceconstitutes a violation of the CWA andis grounds for enforcement action; forpermit termination, revocation andreissuance, or modification; or for denialof a permit renewal application.

(b) Duty to reapply. If the permitteewishes to continue an activity regulatedby this permit after the expiration date

of this permit, the permittee must applyfor and obtain a new permit.

(c] Duty to halt or reduce activity. Itshall not be a defense for a permittee inan enforcement action that it wouldhave been necessary to halt or reducethe permitted activity in order tomaintain compliance with the conditionsof this permit.


(e) Proper operation and maintenance.The permittee shall at all times properlyoperate and maintain all facilities andsystems of treatment and control (andrelated appurtenances which areinstalled or used by the permittee toachieve compliance with the conditionsof this permit. Proper operation andmaintenance includes effectiveperformance, adequate funding,adequate operator staffing and training,and adequate laboratory and processcontrols, including appropriate qualityassurance procedures. This provisionrequires the operation of back-up orauxiliary facilities or similar systemsonly when necessary to achievecompliance with the conditions of thepermit.

(f) Permit actions. This permit may bemodified, revoked and reissued, orterminated for cause. The filing of arequest by the permittee for a permitmodification, revocation and reissuance,or termination, or a notification ofplanned changes or anticipatednoncompliance does not stay any permitconditions.

(g) Property rights. This permit doesnot convey any property rights of anysort, or any exclusive privilege.

(h) Duty to provide information. Thepermittee shall furnish to the Directorwithin a reasonable time, anyinformation which the Director mayrequest to determine whether causeexists for modifying, revoking andreissuing, or terminating this permit orto determine compliance with thispermit. The permittee shall also furnishto the Director, upon request, copies ofrecords required to be kept by thispermit.

(i] Inspection and entry. The permitteeshall allow the Director, or anauthorized representative, upon thepresentation of credentials and otherdocuments as may be required by law,to:


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(4) Sample or monitor 'at reasonabletimes, for the purposes of assuringpermit compliance or as otherwiseauthorized by the CWA any substancesor parameters at any location.

0) Monitoring and records. (1)Samples and measurements taken forthe purpose of monitoring shall berepresentative of the monitored activity.

(2) The permittee shall retain recordsof all monitoring information, includingall calibration and maintenance recordsand all original strip chart recordings forcontinuous monitoring instrumentation,copies of all reports required by thispermit, and records of all data used tocomplete the application for this permit,for a period of at least 3 years from thedate of the sample, measurement, reportor application. This period may beextended by request of the Director atany time.




(iii) The date(s) analyses wereperformed:



(vi) The results of such analyses.(k) Signatory requirement. All

applications, reports, or informationsubmitted to the Director shall be signedand certified. (See § 233.4.)

(1) Reporting requirements.(1) Planned changes. The permittee

shall give notice to the Director as soonas possible of any planned physicalalterations or additions to the permittedfacility.

(2] Anticipated noncompliance. Thepermittee shall give advance notice tothe Director of any planned changes inthe permitted facility or activity whichmay result in noncompliance withpermit requirements.

(3) Transfers. This permit is nottransferable to any person except afternotice to the Director. The Director mayrequire modification or revocation andreissuance of the permit to change thename of the permittee and incorporatesuch other requirements as may benecessary under the Act. (See § 233.13;

in some cases, modification orrevocation and reissuance ismandatory.)


(5) Compliance schedules. Reports ofcompliance or noncompliance with, orany progress reports on, interim andfinal requirements contained anycompliance schedule of this permit shallbe submitted no later than 14 daysfollowing each schedule date.

(6) Twenty-four hour reporting Thepermittee shall report anynoncompliance which inay endangerhealth or the environment. Anyinformation shall be provided orallywithin 24 hours from the time thepermittee becomes aware of thecircumstances. A written submissionshall also be provided within 5 days ofthe time the permittee becomes aware ofthe circumstances. The writtensubmission shall contain a descriptionof the noncompliance and its cause; theperiod of noncompliance, includingexact dates and times, ard if. thenoncompliance has not been corrected,the anticipated time it is expected tocontinue; and steps taken or planned toreduce, eliminate, and preventreoccurrence of the noncompliance.

(7) Other noncompliance. Thepermittee shall report all instances ofnoncompliance not reported underparagraphs (1) (1), (4), (5), and (6) of thissection, at the time monitoring reportsare submitted. The reports shall containthe information listed in paragraph (1)(6)of this section.

(8) Other information. Where thepermittee becomes aware that it failedto submit any releiant facts in a permitapplication, or submitted incorrectinformation in a permit application or inany report to the Director, it shallpromptly submit such facts orinformation.

(in) The permittee need not complywith the conditions of this permit to theextent and for the duration that suchnoncompliance is authorized in anemergency permit. (See § 233.311)

(n) Activities are not conducted underthe authority of this permit if they arenot specifically identified andauthorized in this permit.

(o) The permittee shall maintain theauthorized work areas in good conditionand in accordance with therequirements bontained in this permit.

(p) If any applicable water qualitystandards are revised or modified, or ifa toxic effluent standard or prohibitionunder CWA section 307(a) is establishedfor a pollutant present in the permittee'sdischarge and is more stringent than anylimitation in the permit, the permit shall

be promptly modified to conform to thestandard, limitation or prohibition.

§ 233.8 Establishing permit conditions.

(a) In addition to conditions requiredin all permits (§ 233.7), the Director shallestablish conditions in permits, asrequired on a case-by-case basis, under§ 233.9 (duration of permits), 233.10(a)(schedules of compliance), and 233.11(monitoring).

(b)(1) In addition the Director shallestablish conditions in permits, asrequired on a 'case-by-case basis, toprovide for and assure compliance withall applicable requirements of the CWAand appropriate regulations.

(2) An applicable requirement is aState statutory or regulatoryrequirement which takes effect prior tofinal administrative disposition of apermit, or prior to the modification orrevocation and reissuance of a permit,to the extent allowed in § 233.14.

(3) New or reissued permits, and tothe extent allowed under § 233.14modified or revoked and reissuedpermits, shall incorporate each of theapplicable requirements referenced in§ 233.8.

(c) Each permit shall includeconditions meeting the followingrequirements, when applicable;

(1) Identification. A specificidentification and description of theauthorized activity, including:

(i) The name and address of thepermittee and the permit applicationidentification number,

(ii) The use or purpose of thedischarge;. (iii)yThe type and quantity of thematerials to be discharged;

(iv) Any structures proposed to beerected on fill material; and

(v) The location and boundaries of thedischarge site(s), including a detailedsketch and the name and description ofaffected State regulated waters.

(2) Environmental guidelines.Provisions ensuring that the dischargewill be conducted in compliance withthe environmental guidelines issuedunder section 404(b)[1) of CWA (40 CFRPart 230), including conditions to ensurethat the discharge will be conducted in amanner which minimizes adverseimpacts upon the physical, chemical,and biological integrity of the waters ofthe United States, such as requirementsfor restoration or mitigation.

(3) Water quality standards. Anyrequirements necessary to comply withwater quality standards establishedunder applicable Federal or State law. Ifan applicable water quality standard ispromulgated after the permit is issued, it

14213




shall be modified as provided in§ 233.7(p).

(4) Toxic effluent guidelines orprohibitions. Requirements necessaryto comply with any applicable toxiceffluent standard or prohibition undersection 307(a) of CWA or applicableState or local law. If an applicable toxiceffluent standard or prohibition ispromulgated after the permit is issued, itshall be modified as provided in§ 233.7(p).

(5) Best Management Practices.Applicable BMPs approved by aStatewide CWA section 208(b)(4)agency as provided in the agreementdescribed in § 233.41(a)(1).

(6) Generalpermits. Any conditionsnecessary for general permits asrequired tnder § 233.37.

(7) Commencement of work. Aspecific date on which the permit shallautomatically expire, unless previouslyrevoked and reissued or modified orcontinued, if the authorized work hasnot been commenced.

(d) Incorporation, All permitconditions shall be incorporated eitherexpressly or by reference. Ifincorporated by reference, a specificcitation to the applicable regulations orrequirements must be given in thepermit. .

§ 233.9 Duration of permits.(a) Section 404 permits shall be "

effective for a fixed term not to exceed 5years.

(b) Except as provided in § 233.5, theterm of a permit shall not be extendedby modification beyond the maximumduration specified in this section.


§ 233.10 Schedules of compliance.(a) General. The permit may, when

appropriate, specify a schedule ofcompliance leading to compliance withthe CWA and appropriate regulations.

(1) Time for compliance. Anyschedules of compliance under thissection shall require compliance as soonas possible.

(2) Interim dates. Except as providedin paragraph (b)(1)(ii) of this section, if apermit establishes a schedule ofcompliance which exceeds 1 year fromthe date of permit issuance, the scheduleshall set forth interim requirements andthe dates for their achievement.


(i) If the time necessary forcompletion of any interim requirement(such as the construction of a controlfacility) is more than 1 year and is notreadily divisible into stages for

completion, the permit shall specifyinterim dates for the submission ofreports of progress toward completion ofthe interim requirements and indicate aprojected completion date.

(3) Reporting. The permit shall bewritten to require that no later than 14days following each interim date andthe final date of compliance, thepermittee shall notify the Director inwriting of its compliance ornoncompliance with the interim or finalrequirements, or submit progress reportsif paragraph (a)(1)(ii) of this section isapplicable.

§ 233.11 Requirements for recording andreporting of monitoring results.



(b) Required monitoring includingtype, intervals, and frequency sufficientto yield data which are representative ofthe monitored ectivity including, whenappropriate, continuous monitoring;

(c) Applicable reporting requirementsbased upon the impact of the regulatedactivity.

§ 233.12 Effect of a permit.(a] Compliance with a permit during

its term constitutes compliance, forpurpose of enforcement, with sections301, 307, and 403 of CWA. However, apermit may be modified, revoked andreissued, or terminated during its termfor cause as set forth in §§ 233.14 and233.15.

(b) The issuance of a permit does notconvey any property fights of any sort,or any exclusive privilege.

§233.13 Transfer of permits.Transfer by modification. A permit

may be transferred by the permittee to anew owner or operator only if the permithas been modified or revoked andreissued (under § 233.14(b)(2) or a minormodification made (under § 233.16(d)) toidentify the new permittee andincorporate such other requirements asmay be necessary under the Act.

§ 233.14 Modification or revocation andrelssuance of permits.

When the Director receives anyinformation (for example, inspects thefacility, receives information submittedby the permittee as required in thepermit (see § 233.7), receives a requestfor modification or revocation andreissuance under § 124.5 of this chapter,or conducts a review of the permit file)he or she may determine whether or notone or more of the causes listed in

paragraphs (a) and (b) of this section formodification or revocation andreissuance or both exist. If cause exists,the Director may modify or revoke andreissue the permit accordingly, subjectto the limitations of paragraph (c) of thissection, and may request an updatedapplication if necessary. When a permitis modified, only the conditions subjectto modification are reopened. If a permitis revoked and reisued, the entire permitis reopened and subject to revision andthe.permit is reissued for a new term.See § 124.5(c)(2). If cause does not existunder this section or § 233.16, theDirector shall not modify or revoke andreissue the permit. If a permitmodification satisfies the criteria in§ 233.16 for "minor modifications" thepermit may be modified without a draftpermit or public review. Otherwise, adraft permit must be prepared (ifrequired under § 233.39(b)(1)), andprocedures of an approved Stateprogram followed.

(a) Causes for modification. Thefollowing are causes for modificationbut not revocation and reissuance ofpermits. The following may be causesfor revocation and reissuance as well asmodification when the permitteerequests or agrees.

(1) Alterations. There are material andsubstantial alterations or additions tothe permitted facility or activity whichoccurred after permit issuance whichjustify the application of permitconditions that are different or absent inthe existing permit.

(2) Information. The Director hasreceived information. Permits may bemodified during their terms for thiscause onlytif the information was notavailable at the time of permit issuance(other than revised regulations,guidance, or test methods and wouldhave justified the application ofdifferent permit conditions at the time ofissuance. For 404 general permits(§ 233.37) this cause shall include anyinformation indicating that cumulativeeffects on the environment areunacceptable.

(3) New regulations. The standards orregulations on which the permit wasbased have been changed bypromulgation of amended standards orregulations or by judicial decision afterthe permit was issued. Permits may bemodified during their terms for thiscause only as follows: (i) Forpromulgation of amended standards orregulations, when:

(AJ The permit condition requested tobe modified was based on an EPAapproved or promulgated water qualitystandard; and

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Federal Register / Vbl. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations

(B) EPA has revised, withdrawn, ormodified that portion of the regulationon which the permit condition wasbased, or has approved a State actionwith regard to*a water quality standardon which the permit condition wasbased; and

(C) A permittee requests modificationin accordance with § 124.5 within ninety(90) days after Federal Register notice ofthe action on which the request is based.

(ii) For judicial decisions, a court ofcompetent jurisdiction has remandedand stayed EPA promulgated standardsif the remand and stay concern thatportion of the standards on which thepermit condition was based and arequest is filed by the permittee inaccordance with § 124.5 within ninety(90) days of judicial remand.

(4) Compliance schedules. TheDirector determines good cause existsfor modification of a complianceschedule, such as an act of God, strike,flood, or material shortage or otherevents over which the permittee haslittle or no control and for which there isno reasonably available remedy.

(5) The Director shall modify a permitto reflect toxic effluent standards orprohibitions or water quality standards,under the "reopener" condition of§ 233.7(d).



(2) The Director has receivednotification (as required in the permit,see § 233.7(l)(3)) of a proposed transferof the permit. I

§ 233.15 Termination of permits.The following are causes for

terminating a permit during'its term, orfor denying a permit renewalapplication:

(a) Noncompliance by the permitteewith any condition of the permit;

(b) The permittee's failure in theapplication or during the permitissuance process to disclose fully allrelevant facts, or the permittee'smisrepresentation of any relevant factsat any time; or

(c) A determination that the permittedactivity endangers human health or theenvironment and can only be regulatedto acceptable levels by permitmodification or termination.-

(d) Permits may be modified orterminated when there is a change inany condition that requires either atemporary or a permanent reduction or

elimination of any discharge controlled -by the permit (for example, plantclosure).


Director may modify a permit to makethe corrections or allowances forchanges in the permitted activity listedin this section, without following theprocedures of Part 124 of this Chapter.Any permit modification not processedas a minor modification under thissection must be made for cause andwith Part 124 draft permit and publicnotice as required in § 233.14(a). Minormodifications may only:

(a) Correct typographical errors;(b) Require more frequent monitoring"


in a schedule of compliance, providedthe new date is not.more than 120 daysafter the date specified in the existingpermit and does not interfere withattainment of the final compliance daterequirement; or

(d) Allow for a change in ownershipor operational control of a facility wherethe Director determines that no otherchange in the permit is necessary,provided that a written agreementcontaining a date for transfer of permitresponsibility, coverage, and liabilitybetween the current and new permitteeshas been submitted to the Director.

(e) Extend the term of a State section404 permit, so long as the modificationdoes not extend the term of the permitbeyond 5 years from its originaleffective date.

§ 233.17 Noncompliance and programreporting by the Director.

The Director shall prepare quarterlyand annual reports as detailed belowand shall submit them to the RegionalAdministrator.

(a) Quarterly reports for State 404programs. The Director shall submitnoncompliance reports for section 404discharges specified under§ 233.24(f)(1)(i)(A)-(E) containing thefollowing information:

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

(2) A brief description and date ofeach instance of noncompliance, whichshould include the following:

(i) Any unauthorized discharges ofdredged or fill material subject to theState's jurisdiction or anynoncompliance with permit conditions;and

(ii) A description of investigationsconducted and of any enforcementactions taken or contemplated.

(b) Annual report for State 404programs. The State Director shall

submit to the Regional Administrator anannual report assessing the cumulativeimpacts of the State's permit program onthe integrity of State regulated waters.This report 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 (for'example, wetlands,. rivers, lakes, andother categories which the Director andRegional Administrator may establish);

(2) The number of acres of each of thecategories of waters in paragraph (b)(1)of this section which were filled orwhich received any discharge of dredgematerial during the year (either byauthorized or unauthorized activities);

(3) The number and nature of permitapplications denied; and permitsmodified, revoked and reissued, orterminated during the year;

(4) The number and nature of permitsissued under emergency conditions, asprovided in § 233.38;

(5) The approximate number ofpersons in the State discharging dredgedor fill material under general permitsand an estimate of the cumulativeimpacts of these activities.

(c) Schedule. (1) For all quarterlyreports. On the last working day of May,August, November, and February, theState Director shall submit to theRegional Administrator informationconcerning noncompliance with State404 permit requirements by majordischargers or other dischargers withthe following schedule.


NONCOMPLIANCE BY MAJOR DISCHARGERS

[Date for completion of reports]

January, February, and March ....................... May 31.'April, May, and June ....................................... August 31.'July, August, and September ......................... November 30.'October, November, and December ............. February 28.'

'Reports must be made available to the public for inspec-tion and copying on this date.

(2) For all annual reports. The periodfor annual reports shall be for thecalendar year ending December 31, withreports completed and available to thepublic no more than 60 days later.

§ 233.18 Confidentiality of information.

Claims of confidentiality for thefollowing information will be denied:

(a) The name and address of anypermit applicant or permittee;

(b) Permit applications and permits;and

(c) Effluent data.

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Subpart C-State ProgramRequirements

§ 233.20 Purpose and scope.(a) This subpart specifies the

procedures EPA will follow inapproving, revising, and withdrawingState programs under Section 404 of theCWA, and the requirements Stateprograms must meet to be approved bythe Administrator under Section 404.

(b) State submissions for programapproval must be made in accordancewith the procedures set out in thisSubpart. This includes developing andsubmitting to EPA a program description(§ 233.22), an Attorney General'sstatement (§ 233.23), a Memorandum ofAgreement with the RegionalAdministrator (§ 233.24), and with theSecretary (§ 233.25).

(c) The substantive provisions whichmust be included in State programs forthem to be approved, includingrequirements for permitting, complianceevaluation, enforcement, publicparticipation, and sharing ofinformation, are found in this Part and in§ 233.26.

(d) Upon submission of a completeprogram, EPA will conduct a publichearing, if interest is shown, anddetermine whether to approve ordisapprove the program, taking intoconsideration the requirements of thisPart, the CWA and any commentsreceived.

(e) The Administrator shall approveState programs which conform to theapplicable requirements of this Part.

(fQ Upon approval of a State program,the Secretary shall suspend the issuanceof Federal permits for those activitiessubject to the approved State program.

(g) Any State program approved bythe Administrator shall at all times beconducted in accordance with therequirements of this Part.

(h) States are encouraged toconsolidate their permitting activities.These regulations do not requireconsolidation.

(i) Partial State programs are notallowed under 404. Except as providedin § 233.35, the State program mustregulate all discharges of dredged or fillmaterial into State regulated waters.State section 404 programs are limitedunder section 404(g)(1) of CWA tocoverage of such State regulated waters.See the definition of "State regulatedwaters" in § 233.3. However, in manycases States will lack authority toregulate activities on Indian lands. Thislack of authority does not impair aState's ability to obtain full programapproval in accordance with this Part,

-i.e., inability of a State to regulateactivities on Indian lands does not

constitute a partial program. TheSecretary will administer the programon Indian lands if the State does notseek this authority.

[Note.-States are advised to contact theUnited States Department of the Interior,Bureau of Indian Affairs, concerningauthority over Indian lands.]

{) Nothing in this Part precludes aState from:

(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. Where an approvedState program has greater scope ofcoverage than required by federal lawthe additional coverage is not part of theFederally approved program.

[Note.-State assumption of the Section 404program is limited to certain waters, asprovided in paragraph (j) of this section. Thefederal program operated by the Corps ofEngineers continues to apply to the remainingwaters in the State even after programapproval. However, this does not restrictStates from regulating discharges of dredgedor fill materials into those waters over whichthe Secretary retains section 404 jurisdiction.]


(a) Any State that seeks to administera program under this Part shall submitto the Administrator at least threecopies of a program submission. Thesubmission shall contain the following:


(2) A complete program description,as required by § 233.22, describing howthe State intends to carry out itsresponsibilities under this Part;


(4) A Memorandum of Agreementwith the Regional Administrator asrequired by § 233.24, and aMemorandum of Agreement with theSecretary as required by § 233.25;


(b) Within 30 days of receipt by EPAof a State program submission. EPA willnotify the State whether its submissionis complete. If EPA finds that a State'ssubmission is complete, the statutoryreview period (i.e., the period of timeallotted for formal EPA review of aproposed State program under theCWA) shall be deemed to have begunon the date of receipt of the State'ssubmission. If EPA finds that a State'ssubmission is incomplete, the statutoryreview period shall not begin until all

the necessary information is received byEPA.




404 program shall submit a descriptionof the program it proposes to administerin lieu of the Federal program underState law or under an interstatecompact. The program description shallinclude:


(b) A description (includingorganization charts) of the organizationand structure of the State agency oragencies which will have responsibilityfor administering the program, includingthe information listed below. If morethan one agency is responsible foradministration of a program, eachagency must have statewide jurisdictionover a class of activities. Theresponsibilities of each agency must bedelineated, their procedures forcoordination set forth, and an agencymay be designated as a "lead agency" tofacilitate communications between EPAand the State 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 agencystaff who will carry out the Stateprogram, including the number.occupations, and general duties of theemployees. The State need not submitcomplete job descriptions for everyemployee carrying out the Stateprogram.

(2) An itemization of the estimatedcosts of establishing and administeringthe program for the first two years afterapproval, including cost of thepersonnnel listed in paragraph (b)(1) ofthis section, cost of administrativesupport, and cost of technical support.

(3) An itemization of the sources andamounts of funding, including anestimate of Federal grant money,available to the State Director for thefirst two years after approval to meetthe costs listed in paragraph (b)(2) ofthis section, identifying any restrictionsor limitations upon this funding.

14216





(d) Copies of the permit form(s),application form(s), and reportingform(s) the State intends to employ in itsprogram. State section 404 applicationforms must include the informationrequired by § 233.4 and State section 404permit forms must include theinformation conditions required by§ 233.7.


(f) A description of State regulatedwaters.

[Note.-States should obtain from theSecretary an identification of those waters ofthe U.S. within the State over which theCorps of Engineers retains authority undersection 404(g) of CWA.]

(g) A categorization, by type andquantity, of discharges within the State,and an estimate of the number ofdischarges within each category forwhich the discharger must file for apermit.

(h) An estimate of the number andp~rcent of activities within eachcategory for which the State has alreadyissued a State permit regulating thedischarge.

(i) In accordance with § 233.35(a)(6), adescription of the specific bestmanagement practices requirementsproposed to be used to satisfy theexemption provisions of section404(f)(1)(E) of CWA for construction ormaintenance of farm roads, forest roads,or temporary roads for moving miningequipment.

(j) A description of how the Statesection 404 agency(ies) will interact withother State and local agencies.

(k) A description of how the State willcoordinate its enforcement'strategy withthat of the Corps of Engineers and EPA.

(1) Where more than one agencywithin a State has responsibility foradministering the State program:

(1) A memorandum of understandingamong all the responsible State agencieswhich establishes:

(i) Procedures for obtaining andexchanging information necessary foreach agency to determine and assess thecumulative impacts of all activitiesauthorized under the State program:

(ii) Common reporting requirements;and

(iii) Any other appropriate proceduresnot inconsistent with section 401 of theCWA or these regulations;

(2) A description of procedures forcoordinating compliance monitoring andenforcement, distributing among the

responsible agencies informationreceived from applicants and permittees,and issuing reports required by section404 of CWA or these regulations.

(in) Where several State 404 permitsare required for a single project, adescription of procedures for:

(1) Ensuring that all the.necessaryState 404 permits are issued before anyof the permits go into effect; and

(2) Concurrent processing and, whereappropriate, joint processing of all of thenecessary State 404 permits.


a 404 program shall submit a statementfrom the State Attorney General (or theattorney for those State or interstateagencies which have independent legalcounsel) that the laws of the State, or aninterstate compact, provide adequateauthority to carry out the programdescribed under § 233.22 and to meet therequirements of this Part. This statementshall include citations to the specificstatutes, administrative regulations, and,where appropriate, judicial decisionswhich demonstrate adequate authority.State statutes and regulations cited bythe State Attorney General orindependent legal counsel shall be in theform of lawfully adopted State statutesand regulations at the time thestatement is signed and shall be. fullyeffective by the time the program isapproved. To qualify as "independentlegal counsel" the attorney signing thestatement required by this section musthave full authority to independentlyrepresent the State agency in court onall matters pertaining to the Stateprogram.

(b) When a State seeks authority onIndian lands, the statement shall containan appropriate analysis of the State'sautocracy.

I (c)(1) The State Attorney General'sstatement shall contain an analysis ofState law regarding the prohibition ontaking private property without justcompensation, including any applicablejudicial interpretations, and anassessment of the effect such law willhave on the successful implementationof the State's regulation of the dischargeof dredged or fill material.

(2) Where more than one agency hasresponsibility for administering theState program, the Attorney General'sStatement shall include certification thateach agency has full authority toadminister the program within itscategory of jurisdiction and that theState as a whole has full authority toadminister a complete State section 404program.


(a) Any State that seeks to administera 404 program shall submit aMemorandum of Agreement. TheMemorandum of Agreement shall beexecuted by the State Director and theRegional Administrator and shallbecome effective when approved by theAdministrator. In addition to meetingthe requirements of paragraph (b) of thissection, the Memorandum of Agreementmay include other terms, conditions, oragreements consistent with this Part andrelevant to the administration andenforcement of the State's regulatoryprogram. The Administrator shall notapprove any Memorandum ofAgreement which contains provisionswhich restrict EPA's statutory oversightresponsibility.


(1) Provisions specifying the frequencyand content of reports, documents andother information which the State isrequired to submit to EPA. The Stateshall allow EPA to routinely reviewState records, reports, and files relevantto the administration and enforcementof the approved program. State reportsmay be combined with grant reportswhere appropriate. These proceduresshall implement the requirements of§ 233.39.


(i) Provisions for coordination ofcompliance monitoring activities by theStat and by EPA. These may specify thebasis on which the RegionalAdministrator will select facilities oractivities within the State for EPAinspection. The Regional Administratorwill normally notify the State at least 7days before any such inspection; and



(c) The Memorandum of Agreement,the annual program grant and the State/EPA Agreement should be consistent. Ifthe State/EPA Agreement indicates thata change is needed in the Memorandumof Agreement, the Memorandum ofAgreement may be amended through theprocedures set forth in this part. TheState/EPA Agreement may not overridethe Memorandum of Agreement.

[Note.-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. However, it may still be appropriate to

14217




specify in the MOA the basis for suchdetailed agreements, e.g., a provision in theMOA specifying that EPA will select facilitiesin the State for inspection annually as part ofthe State/EPA agreement.]

(d)(1) The Memorandum of Agreementwith the Regional Administrator shallalso specify:

(i) The categories (including any class,type, or size within such categories) ofdischarges for which EPA will Waivereview of State-issued permitapplications, draft permits, andproposed general permits. While theRegional Administrator and the State,after consultation with the Corps ofEngineers, the U.S. Fish and WildlifeService, and the National MarineFisheries Service, may agree to waiveFederal review of certain "classes orcategories" of permits, no waiver maybe granted for the following activities:

(A) Discharges which may affect thewaters of a State other than the one inwhich the discharge originates;

(B) Major discharges;(C) Discharges into critical areas

established under State or Federal lawincluding fish and wildlife sanctuariesor refuges, National and historicalmonuments, wilderness areas andpreserves, National and State parks,components of the National Wild andScenic Rivers system, the designatedcritical habitat of threatened orendangered species, and sites identifiedor proposed under the National HistoricPreservation Act;

(D) General permits;(E) Discharges known or suspected to

contain toxic pollutants in toxicamounts under section 307(a)(1) of CWAor hazardous substances in reportablequantities under section 311 of CWA.

(ii) A definition of major discharges.(2) Where more than one agency

within a State has responsibility foradministering the program, all of theresponsible agencies shall be parties tothe Memorandum of Agreement.

(e) Whenever a waiver is grantedunder paragraph (d)(1) of this section,the Memorandum of Agreement shallcontain:

(1) A statement that the RegionalAdministrator retains the right toterminate the waiver as to future permitactions, in whole or in part, at any timeby sending the State Director writtennotice of termination; and

(2) A statement that the State shallsupply EPA, the Corps of Engineers, theU.S. Fish and Wildlife Service, and theNational Marine Fisheries Service(unless receipt is waived in writing)with copies of final permits.

§ 233.25 Memorandum of Agreement withthe Secretary.

Before a State program is approvedunder this Part, the State shall enter intoa Memorandum of Agreement with theSecretary. Where more than one agencywithin a State has responsibility foradministering the Siate program, all ofthe responsible agencies shall be partiesto the Memorandum df Agreement. TheMemorandum of Agreement shallinclude:

(a) A description of State regulatedwaters, as identified by the Secretary.

(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 River and HarborAct of 1899, provided such proceduressatisfy the requirements of this Part.

(c) An identification of those generalpermits, if any, issued by the Secretary,the terms and conditions of which theState intends to administer and enforceupon receiving approval of its programand a plan for transferring responsibilityfor these permits to the State, includingprocedures for the prompt transmissionfrom the Secretary to the State Directorof relevant information not already inthe possession of the State Directorincluding support files for permitissuance, compliance reports andrecords of enforcement actions. In manyinstances States will lack the authorityto directly administer permits by theFederal government. However,procedures authorized under State lawmay be established to transferresponsibility for these permits.

(d) Procedures whereby the Secretary.will, upon program approval, transfer tothe State pending section 404 permitapplications and other relevantinformation, not already in thepossession of the State Director.

(e) Procedures to ensure that the StateDirector will not issue a permit on thebasis of any application received fromthe Secretary which the Secretary hasidentified as incomplete or otherwisedeficient until the State Directorreceives information sufficient to correctthe deficiency.

(f) A provision that the State shall notissue any section 404 permit for adischarge which, in the judgment of theSecretary after consultation with theSecretary of the Department in whichthe Coast Guard is operating, wouldsubstantially impair anchorage ornavigation.

(g) Those classes or categories, if any,of proposed State permits for which theSecretary waives the right to review.

(h) Other matters not inconsistentwith this Part that the Secretary and theState deem appropriate.

[Note.-For example, where a State permitprogram 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.]

§ 233.26 Requirements for permitting.(a) All State 404 programs must have

legal authority to implement each of thefollowing provisions and must beadministered in conformance with each;except that States are not precludedfrom omitting or modifying anyprovisions to impose more stringentrequirements:

(1) § 233.4-(Application for a permit).(2) § 233.6-Signatories);(3) § 233.7--Applicable permit

conditions);(4) § 233.8--(Establishing permit

conditions);(5) § 233.9--(Duration);(6) § 233.10-(Schedules of

compliance);(7) § 233.11--Monitoring

requirements);(8) § 233.12-(Effect of permit);(9) § 233.13-(Permit transfer);(10) § 233.14-(Permit modification);(11) § 233.15--{Permit termination);(12) § 233.17-(Noncompliance

reporting);(13) § 233.18-(Confidential

information);(14) § 124.3(a)-(Application for a

permit);(15) § 124.5(a), (c), (d), and {f}-

(Modification of permits) except asprovided in § 233.39(b)(2);

(16) § 124.6(a), (c), (d), and (e)--Draftpermit) except as provided in§ 233.39(b)(2);

(17) § 124.8--(Fact sheets) except asprovided in § 233.39(b)(2);

(18) § 124.10(a)(1)(ii), (a)(1)(iii),(a)(1)(v), (b), (c), (d), and (e)-(Publicnotice);


(20) § 124.12(a)-(Public hearings);and

(21) § 124.17(a) and (c)-{Response tocomments).

lNote.-States need not implementprovisions identical to the above listedprovisions. Implemented provisions must,however, establish requirements at least asstringent as the corresponding listedprovisions. While States may impose morestringent requirements, they may not makeone requirement more lenient as a tradeofffor making another requirement more

14218




stringent; for example, by requiring thatpublic hearings be held prior to issuing anypermit while reducing the amount of advancenotice of such a hearing. State programs may,if they have adequate legal authority,implement any of the provisions of EPA'sother permit regulations.]

(b)(1) State 404 permit programs shallhave an approved continuing planningprocess under 40 CFR 35.1500 and shallassure- that the approved planningprocess is at all times consistent withCWA.

(2) State 404 programs shall ensurethat any board or body which approvesall or portions of permits shall notinclude as a member any person whoreceives, or has during the previous 3years received, a significant portion ofincome directly or indirectly from permitholders or applicants for a permit.

(i) For the purposes of thissubparagraph:

(A) "Board or body" includes anyindividual, including the Director, whohas or shares authority to approve all orportions of permits either in the firstinstance, as modified or reissued, or onappeal

(B) "Significant portion of income"means 10 percent or more of grosspersonal income for a calendar year,except that it means 50 percent or moreof gross personal income for a calendaryear if the recipient is over 50 years ofage and is receiving that portion underretirement, pension, or similararrangement.

(C) "Permit holders or applicants for apermit" does not include anydepartment or agency of a Stategovernment, such as a Department ofParks or a Department of Fish andWildlife.

(D) "Iicome" includes retirementbenefits, consultant fees, and stockdividends.

(ii) For the purposes of thissubparagraph, income is not received"directly or indirectly from permitholders or applicants for a permit" whenit is derived from mutual fund payments,or from other diversified investments forwhich the recipient does not -knaw theidentity of the primary sources ofincome.


(a) State programs shail haveprocedures for receipt,. evaluation.retention and investigation for possibleenforcement of all notices and reportsrequired of permit-ees and otherregulated persons (and for investigationfor possible enforcement of failure tosubmit these notices and reports.

{b) State programs shall haveinspection and surveillance procedures

to determine, independent ofinformation supplied by regulatedpersons, compliance or noncompliancewith applicable program requirements.The State shall maintain:

(1) A program which is capable ofmaking comprehensive surveys of allfacilities and activities subject to theState Director's authority to identifypersons subject to regulation who have'failed to comply with permit applicationor other program requirements. Anycompilation, index, or inventory of suchfacilities and activities shall be madeavailable to the Regional Administratorupon request;

(2) A program for periodic inspectionsof the facilities and activities subject toregulation. These inspections shall beconducted in a manner designed to:

(i) Determine compliance ornoncompliance with issued permitconditions and other programrequirements;(ii) Verify the accuracy of information

submitted by permittees and otherregulated persons in reporting forms andother forms supplying monitoring data;and(iii) Verify the adequacy of sampling,

monitoring, and other methods used bypermittees and other regulated personsto develop that information;


(4) Procedures for receiving andensuring proper consideration ofinformation submitted by the publicabout violations. Public effort inreporting violations shall be encouraged,and the State Director shall make.available information on reportingprocedures.

(c) The State Director and Stateofficers engaged in complianceevaluation shall have authority to enterany site or premises subject toregulation or in which records relevantto program operation are kept in orderto copy any records, inspect, monitor orotherwise investigate compliance Withthe State program including compliancewith permit conditions and otherprogram requi'ements. States whose lawrequires a search warrant bEfbra entrymust conform Wili this reurnt.

(d) Investigatory hispections sha-: beconducted, sampl6s shall be taken and.other information shall be gathered in amanner 'e.g., using proper "chain ofcustody" procedures) that will produceevidence admissible in an enforcementproceeding or in court.



(1) To restrain immediately andeffectively any person by order or bysuit in State court from engaging in anyunauthorized activity which isendangering or causing damage topublic health or the environment;

INote. -This subparagraph requires thatStates have a mechanism (e.g., anadministrative cease and desist order or theability to seek a temporary restraining order]to stop any unauthorized activityendangering public health ,or theenvironment


(3) To immediately and effectivelyhalt or remove any unauthorizeddischarges of dredged or fill material,including the authority to issue a ceaseand desist order, interim protectionorder, or restoration order to any personresponsible for, or involved in, anunauthorized discharge.

( (4) To assess or sue to recover in courtcivil penalties and to seek criminalremedies, including fines, as follows:

(i) (A) Civil penalties shall berecoverable for the violation of anysection 404 permit condition; any section404 filing requirement; any duty to allowor carry out inspection, entry ormonitoring activities; or, any regulationor orders issued by the State Director.Such penalties shall be assessable in atleast the amount of $5,000 per day foreach violation.

(B) Criminal fines shall be recoverableagainst any person who willfully ornegligently violates any applicablestandards or limitations; any section 404permit condition or any section 404filing requirement. Such fines shall beassessable in at least the amount of$10,000 per day for each violation.

[Note.-States which provide the criminalremedies based on "criminal negligence,"1.gross neg"igence" or strict liability satisfythe requirement of paragraph (a)(31i](Bl ofthis section.]

(C) Criminal fines shall be recoverableagainst any person who knowinglymakes any false statement,representation or certification in anysection 404 form, in any notice or reportrequired by a section 404 permit, or whoknowingly renders inaccurate anymonitoring device or method required to

I14219




be maintained by the Director. Suchfines shall be recoverable in at least theamount of $5,000 for each insthnce ofviolation.

[Note.-In many States the State Directorwill be represented in State courts by theState Attorney General or other appropriatelegal officer. Although the State Director neednot appear in court actions, he or she shouldhave power to request that any of the aboveactions be brought.]

(b)(1) The maximum civil penalty orcriminal fine (as provided in paragraph(a)(4) of this section) shall be assessablefor each instance of violation and, if theviolation is continuous, shall beassessable up to the maximum amountfor each day of violation.

(2) The burden of proof and degrees ofknowledge or intent required underState law for establishing violationsunder paragraph (a)(4) of this section,shall be no greater than the burden ofproof or degree of knowledge or intentEPA must provide when it brings anaction under the CWA;


(c) Any civil penalty assessed, soughtor agreed upon by the State Directorunder paragraph (a)(4) 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.If such civil penalty, together with thecosts of expeditious compliance, wouldbe so severely disproportionate to theresources of the violator as to jeopardizecontinuance in business, the payment ofthe penalty may be deferred or thepenalty may be forgiven in whole, orpart, as circumstances warrant. In thecase of a penalty for a failure to meet astatutory or final permit compliancedeadline, "appropriate to the violation"as used in this paragraph, means apenalty which is equal to:





(5) An amount, if any,'appropriate toreflect any part of the noncompliance

attributable to the government itself;and minus




Procedures which enable the State toassess or to sue any persons responsible forunauthorized activities for any expensesincurred by the State in removing, correctingor terminating any adverse effects uponhuman health and the environment resultingfrom the unauthorized activity, whether ornot accidental;

Procedures which enable the State to suefor compensation for any loss or destructionof wildlife, fish or aquatic life, or theirhabitat, and for any other damages caused byunauthorized activity, either to the State or toany residents of the State who are directlyaggrieved by the unauthorized activity, orboth: and

Procedures for the administrativeassessment of penalties by the Director.]


(1) Authority which allowsintervention as of right in any civil oradministrative action to obtain remediesspecified in paragraphs (a)(1), (2), (3), or(4) of this section by any citizen havingan interest which is or may be adverselyaffected; or




(iii) Publish notice of and provide atleast 30 days for public comment on anyproposed settlement of a Stateenforcement action.


in the administration of a State programshall be available to EPA upon requestwithout restriction. If the informationhas been submitted to the State under aclaim of confidentiality, the State mustsubmit the claim to EPA when providinginformation under this section. Anyinformation obtained from a State andsubject to a claim of confidentiality willbe treated in accordance with the

regulations 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 shall furnish to States withapproved programs the information inits files not submitted under a claim ofconfidentiality which the State needs toimplement its approved program. EPA -shall furnish to States with approvedprograms information submitted to EPAunder a claim of confidentiality, whichthe State needs to implement itsapproved program subject to theconditions in 40 CFR Part 2.§ 233.30 Coordination with otherprograms.

(a) Issuance of State 404 permits maybe coordinated with issuance of RCRA,UIC, and NPDES permits whether theyare controlled by the State or EPA. See§ 124.4.

.(b) The State Director of anyapproved 404 program which may affectthe planning for and development ofhazardous waste management facilitiesand practices shall consult andcoordinate with agencies designatedunder section 4006(b) of RCRA (40 CFRPart 255) as responsible for thedevelopment and implementation ofState solid waste management plansunder section 4002(b) of RCRA (40 CFRPart 256).

§ 233.31 Approval process.(a) Within 10 days of receipt of a

complete State section 404 programsubmission under § 233.21 of this Part,the Administrator shall provide copiesof the State's submission to the Corps ofEngineers, the U.S. Fish and WildlifeService, and the National MarineFisheries 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 be interested in such matters,including all persons on appropriateState, EPA, Corps of Engineers, U.S. Fishand Wildlife Service, and NationalMarine Fisheries Service mailing listsand all permit holders and applicantswithin the State. This notice shall:

(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 days

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after notice of the hearing is publishedin the Federal Register;,

(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 90 days of receipt of acomplete program submission under§ 233.21 the Corps of Engineers, the U.S.Fish and Wildlife Service, and theNational Marine Fisheries Service shallsubmit any comments on the Stateprogram.

(d) Within 120 days of the receipt of acomplete program submission under§ 233.21, the Administrator shallapprove or disapprove the programbased on the requirements of this Partand of CWA and taking intoconsideration all comments received. Aresponsiveness summary shall beprepared by the Regional Office whichidentifies the public participationactivities conducted, describes thematters presented to the public,summarizes significant commentsreceived, and explains the Agency'sresponse to these comments. TheAdministrator shall respond individuallyto comments received from the Corps ofEngineers, the U.S. Fish and WildlifeService, and the National MarineFisheries Service.

(e) If the Administrator approves theState's section 404 program he or sheshall notify the State and the Secretaryand publish public 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 4041g)(1) of CWA and notidentified in the program descriptionunder 233.22(h)(1) as State regulatedwaters.

(f) If the Administrator disapprovesthe State programhe or she shall notifythe State of the reasons for thedisapproval and of any revisions ormodifications to the State programwhich are necessary to obtain approval.


(a) Either EPA or the approved Statemay initiate program revision. Programrevision may be necessary when thecontrolling Federal or State statutory orregulatory authority is modified orsupplemented. The State shall keep EPAfully informed of any proposed

modifications to its basic statutory orregulatory authority, its forms,procedures, or priorities.

(b) Revision of a State program -shallbe accomplished as follows:


(2) Whenever EPA determines that theproposed program revision issubstantial, EPA shall issue publicnotice and provide an opportunity tocomment for a period of at least 30 days.The public notice shall be mailed tointerested persons and shall bepublished in the Federal Register and inenough of the largest newspapers in theState to provide Statewide coverage.The public notice shall summarize theproposed revisions and provide for theopportunity to request a public hearing.Such a hearing will be held if there issignificant public interest based onrequests received.

(3) The Administrator shall approve ordisapprove revisions based on therequirements of this Part and of theCWA.

(4) A program revision shall becomeeffective upon the approval of theAdministrator. Notice of approval of anysubstantial program revision shall bepublished in the Federal Register. Noticeof approval of non-substantial programrevisions may be given by a letter fromthe Administrator to the State Governoror his designee.

(c) States with approved programsshall notify EPA whenever theyproposed to transfer all or part of anyprogram from the approved State agencyto any other State agency, and shallidentify any new division ofresponsibilities among the agenciesinvolved. The new agency is notauthorized to administer the programuntil approved by the Administratorunder paragraph (b) of this section.Organizational charts required under§ 233.22(b) shall be revised andresubmitted.

(d) Whenever the Administrator hasreasqn to believe the circumstanceshave changed with respect to a Stateprogram, he may requeet, and the Stateshall provide, a supplemental AttorneyGeneral's statement, programdescription, or such other documents orinformation as are necessary.

(e) The Regional Administrator shallconsult with the Corps of Engineers, theU.S. Fish and Wildlife Service, and theNational Marine Fisheries Serviceregarding any substantial programrevision, and shall consider their

recommendations prior to approval ofany such revision.


(a) The Administrator may withdrawprogram. approval when a State programno longer complies with therequirements of this Part, and the Statefails to take corrective action. Suchcircumstances include the following:

(1) When the State's legal authority nolonger meets the requirements of thisPart, including:

(i) Failure of the State to promulgateor enact new authorities whennecessary, or


(2) When 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) Issuance of permits do not conformto the requirements of this Part; or

(iii) Failure to comply with. the publicparticipation requirements of this Part.

(3) When the State's enforcementprogram fails to comply with therequirements of this Part, including:

(i) Failure to act on violations ofpermits or other program requirements;



(4) When the State program fails tocomply with the terms of theMemorandum of Agreement requiredunder § 233.24.

§ 233.34 Procedures for withdrawal ofState programs.

(a) A State with a program approvedunder this Part may voluntarily transferprogram responsibilities required byFederal law to the Secretary by takirgthe following actions, or in such othermanner as may be agreed upon with theAdministrator.

(1) The State shall give theAdministrator and the Secretary 180days notice of the proposed transfer andshall submit a plan for the orderlytransfer of all relevant programinformation not in the possession of theSecretary (such as permits, permit files,reports, permit applications) which arenecessary for the Secretary toadminister the program.

(2) Within 60 days of receiving thenotice and transfer plan, theAdministrator and the Secretary shall'

14221



14222 Federal Register I Vol. 48, No. 64 I Friday, April 1, 1983 I Rules and Regulationsevaluate 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 before the transferis to occur the Administrator shallpublish notice of transfer in the FederalRegister and in enough of the largestnewspapers in the State to provideStatewide coverage, and shall mailnotice to all permit holders, permitapplicants, other regulated persons andother interested persons on appropriateEPA and State mailing lists.


(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 as set forth in § 233.33. TheAdministrator shall respond in writingto any petition to commence withdrawalproceedings. He may conduct aninformal investigation of the allegationsin the petition to determine whethercause exists to commence proceedingsunder 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 Statewhich 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 hearing under thisparagraph.

(2) Definitions. For purposes of thisparagraph the definitions of "Act,""Administrative Law Judge," "Hearing,""Hearing Clerk," and "Presiding Officer"in 40 CFR 22.03 apply in addition to thefollowing:

(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 matterof the processing.


(3] Procedures.(i) The following provisions of 40 CFR

Part 22 (Consolidated Rules of Practice)

are applicable to proceedings under thisparagraph:

(A) § 22.02-(use of number/gender);(B) § 22.04(c)-(authorities of

Presiding Officer);(C) § 22.06--(filing/service of rulings

and orders);(D) § 22.09-(examination of filed

documents);(E) § 22.19 (a), (b) and (c)-

(prehearing conference);(F) § 22.22--{evidence);(G) § 22.23-(objections/offers of

proof);(H) § 22.25-(filing the transcript); and(I) § 22.26--(findings/conclusions).(ii) The following provisions are also

applicable:(A) Computation and extension of

time.(1) Computation. In computing any

period of time prescribed or allowed inthese rules of practice, except asotherwise provided, the day of the eventfrom which the designated period beginsto run shall not be included. Saturdays,Sundays, and Federal legal holidaysshall be included. When a stated timeexpires on a Saturday, Sunday or legalholiday, the stated time period shall beextended to include the next businessday.

(2) Extensions of time. TheAdministrator, Regional Administrator,or Presiding Officer, as appropriate, maygrant an extensi6n of time for the filingof any pleading, document, or motion (iupon timely motion of a party to theproceeding, for good cause shown, andafter consideration of prejudice to otherparties, or (ii) upon his own motion.Such a motion by a party may only bemade after notice to all other parties,unless the movant can show good causewhy serving notice is impracticable. Themotion shall be filed in advance of thedate on which the pleading, document ormotion is due to be filed, unless thefailure of a party to make timely motionfor extension of time was the result ofexcusable neglect.

(3) The time for commencement of thehearing shall not be extended beyondthe date set in the Administrator's orderwithout approval of the Administrator.

(B) Ex parte discussion of proceeding.At no time after the issuance of the

order commencing proceedings shall theAdministrator, Regional Administrator,Judicial Officer, Regional JudicialOfficer, Presiding Officer, or any otherperson who is likely to advise theseofficials in the decisions on the case,discuss ex parte the merits of theproceeding with any interested personoutside the Agency, with any Agencystaff member who performs aprosecutorial or investigative function insuch proceeding or a factually related

proceeding, or with any representativeof such person. Any ex partememorandum or other communicationaddressed to the Administrator,Regional Administrator, Judicial Officer,Regional Judicial Officer, or thePresiding Officer during the pendency ofthe proceeding and relating to the meritsthereof, by or on behalf of any partyshall be regarded as argument made inthe proceeding and shall be served uponall other parties. The other parties shallbe given an opportunity to reply to suchmemorandum or communication.

(C) Intervention.(1) Motion. A motion for leave to

intervene in any proceeding conductedunder these rules of practice must setforth the grounds for the proposedintervention, the position and interest ofthe movant and the likely impact thatintervention will have on theexpeditious progress of the proceeding.Any person already a party to theproceeding may file an answer to amotion to intervene, making specificreference to the factors set forth in theforegoing sentence and paragraph(b)(3)(ii)(C)(3 of this section, within ten(10) days after service of the motion for.leave to intervene.

(2) However, motions to intervenemust be filed within 15 days from the.date the notice of the administrator'sorder is first published.

(3) Disposition. Leave to intervenemay be granted only if the movantdemonstrates that (i) his presence in theproceeding would not unduly prolong orotherwise prejudice the adjudication ofthe rights of the original parties; (ii) themovant will be adversely affected by afinal order; and (iii) the interests of themovant are not being adequatelyrepresented by the original parties. Theintervenor shall become a full party tothe proceeding upon the granting ofleave to intervene.

(4) Amicus curiae. Persons not partiesto the proceeding who wish to file briefsmay so move. The motion shall identifythe interest of the applicant and shallstate the reasons why the proposedamicus brief is desirable. If the motion isgranted, the Presiding Officer orAdministrator shall issue an ordersetting the time for filing such brief. Anamicus curiae is eligible to participate inany briefing after his motion is granted,and shall be served with all briefs, replybriefs, motions, and orders relating toissues to be briefed.

(D). Motions.* (1) General. All motions, except those

made orally on the record during ahearing, shall () be in writing; (ii) statethe grounds therefor with particularity;(iii) set forth the relief or order sought;and (iv) be accompanied by any





affidavit, certificate, other evidence, orlegal memorandum relied upon. Suchmotions shall be served as provided by(b)(4) of this section.

(2) Response to motions. A party'sresponse to any written motion must befiled within ten (10) days after service ofsuch motion, unless additional time isallowed for such response. The responseshall be accompanied by any affidavit,certificate, other evidence, or legalmemorandum relied upon. If noresponse is filed within the designatedperiod, the parties may be deemed tohave waived any objection to thegranting of the motion. The PresidingOfficer, Regional Administrator, orAdministrator, as appropriate, may set ashorter time for response, or make suchother orders concerning the dispositionof motions as they deem appropriate.

(3) Decision. The Administrator shallrule on all motions filed or msde afterservice of the recommended decisionupon the parties. The Presiding Officershall rule on all other motions. Oralargument on motions will be permittedwhere the Presiding Officer, RegionalAdministrator, or the Administratorconsiders it necessary or desirable.

(4) Record of proceedings. (i) Thehearing shall be either stenographicallyreported verbatim or tape recorded, andthereupon transcribed by an officialreporter designated by the PresidingOfficer;

(ii) All orders issued by the PresidingOfficer, transcripts of testimony, writtenstatements of position, stipulations,exhibits, motions, briefs, and otherwritten material of any kind submittedin the hearing shall be a part of therecord and shall be available forinspection or copying in the Office of theHearing Clerk, upon payment of costs.Inquiries may be made at the Office ofthe Administrative 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;


(v) A copy of each such submissionshall be served by the person makingthe submission upon the PresidingOfficer and each party of record. Service-under this paragraph shall take place bymail or personal delivery;

(vi) Every submission shall beaccompanied by an acknowledgementof service by the person served or proofof service in the form of a statement ofthe date, time, and manner of serviceand the names of the persons served,

certified by the person who madeservice; and


(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 an oral orwritten statement of his/her position onthe issues within such limits and onsuch conditions as may be fixed by thePresiding Officer, but he/she may nototherwise participate in the proceeding.

(6) Rights of parties. (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, and replybriefs, the Presiding Officer shallevaluate the record before him/her, theproposed findings and conclusions andany briefs filed by the parties and shallprepare a recommended decision, andshall certify the entire record, includingthe recommended decision, to theAdministrator.

(ii) Copies of the recommendeddecision shall be served uponi'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 asupporting brief.

(8) Decision by Administrator. (i)Within 60 days after certification of therecord and filing of the PresidingOfficer's recommended decision, theAdministrator shall review the recordbefore him and issue his own decision.

(ii) If the Administrator concludes thatthe State has administered the programin conformity with the CWA and thisPart, his decision shall constitute "finalagency action" within the meaning of 5U.S.C. § 704.

(iii) If the Administrator concludesthat the State has not administered theprogram in conformity with the CWAand regulations, he shall list thedeficiencies in the program and providethe 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 appropriate correctiveaction has been taken.

(v) The Administrator may require afurther showing in addition to thecertified statement that corrective abtionhas been taken.

(vi) If the State fails to takeappropriate corrective action and file acertified statement thereof within thetime prescribed by the Administrator,the Administrator shall issue asupplementary order withdrawingapproval of the State program. If theState takes 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 meaningsof 5 U.S.C. 704.

(c) Withdrawal of authorization underthis section and the CWA does notrelieve any person from complying withthe requirements of State law, nor doesit affect the validity of actions taken bythe State prior to withdrawal.

§ 233.35 Activities not requiring permits.[a) Except as 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 subpart:

(1)(i) 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, asdefined in paragraph (a)(1)(iii) of thissection.

(ii) To fall under this exemption, theactivities specified in paragraph (a)(1)(i)of this section must be part of anestablished (i.e., on-going) farming,silviculture, or ranching operation.Activities on areas lying fallow as partof a conventional rotational cycle arepart of an established operation.Activities which bring an area intofarming, silviculture, or ranching use arenot part of an established operation. Anoperation ceases to be established whenthe area on which it was conducted hasbeen converted to another use or haslain idle so long that modifications tothe hydrological regime are necessary toresume operations. If an activity takesplace outside the waters of the UnitedStates, or if it does not involve adischarge, it does not need a section 404permit, whether or not it is part of an

Z14223




established farming, silviculture, orranching operation.

(iii)(A) Cultivating means physicalmethods of soil treatment employedwithin established farming, ranchingand silviculture lands upon plantedfarm, ranch, or forest crops to aid andimprove their growth, quality or yield.

(B) Harvesting means physicalmeasures employed directly upon farm,forest, or ranch crops within. establishedagricultural and silvicultural lands, tobring about their removal from farm,forest, or ranch land, but does notinclude the construction of farm, forest,or ranch roads.

(C)(1) Minor Drainage means:(i) The discharge of dredged or fill.

material incidental to connecting uplanddrainage facilities to. waters: of theUnited States, adequate to effect theremoval of excess soil moisture fromupland croplands. (Construction andmaintenance of upland (drylandfacilities, such as ditching and tiling,incidental to the planting, cutivating;protecting, or harvesting of crops,involve no discharge of dredged or fillmaterialinto waters of the UnitedStates, and as such neverrequire a.section 404 permit.);

(i) The discharge of dredged or fillmaterial for the purpose of installingditching or other such water controlfacilities incidental to planting,cultivating, protecting, or harvesting ofrice, cranberries on other wetland. cropspecies, where these activities and thedischarge occur in waters of the UnitedStates which are in established use forsuch agricultural and silviculturalwetland crop production;

(iii) The- discharge of dredged or fillmaterial for the purpose ofmanipulatingthe waterlevels of, or regulating theflow or distribution of water within,existing impoundments which have beenconstructed in accordance withapplicable requirements of CWA, andwhich are in established use for- theproduction ofrice, cranberries, or otherwetland crop species:

[Note.-The provisions of paragraphs(a)(1)(ii}{c)(1} (ii) and (iii) of this. section applyto areas- that are in established useexclusively for wetland crop production aswell as-areas-in established use forconventional wetland/non-wetland croprotation (,g., the rotation of Lice andsoybeansl where such rotation results in thecyclical or intermittent temporary dewateringof such areas.]

(iv) The discharge of dredged or fillmaterial incidental to the emergencyremoval of sandbars, gravel bars, orother similar blockages which areformed duringflood.flows or otherevents, where such blockages close orconstrict previously existing

drainageways and, if not promptlyremoved, would result in damage to orloss of existing crops on land inestablished use for crop production.Such removal does not include enlargingor'extending the dimensions of, orchanging the bottom elevations of, theaffected drainageway as it existed priorto the formation of the blockage.Removal must be accomplished withinone year of formation of such blockagesin order to be eligible for-exemption.

(2) Minor drainage in waters of theU.S. is limited to drainage within areas'that are part of an established farmingor silvicultural operation. It does notinclude drainage associated with theimmediate or gradual conversion of awetland to a non-wetland (e.g., wetlandsspecies to upland species. not typicallyadapted to life in saturated soilconditions),, or conversion from onewetland use to another (for example,silviculture to farming). In addition,minor drainage does not include theconstruction of any canal, ditch, dike orother waterway or structure whichdrains or otherwise significantlymodifies a stream, lake, swamp, bog or'any other wetland or aquatic areaconstituting waters of the United States.Any discharge of dredged or fill materialinto the waters of the United Statesincidental to the construction of anysuch structure or waterway requires- apermit.

(D) Plowing means all forms ofprimary tillage, including moldboard,chisel orwvide-blade, plowing, discing,harrowing, and similar physical meansutilized on farm, forest or ranch land forthe breaking up, cutting, turning over, orstirring of soil to prepare it for theplanting of crops. The term does notinclude the redistribution of spoil, rock,sand, or other-surficial materials in amanner which changes any area of thewaters of the United States to dry land.For example, the redistribution ofsurface materials by blading, grading, orother means to fill in wetland areas isnot plowing. Rock crushing activitieswhich result in the loss of naturaldrainage characteristics, the reductionof water storage- and rechargecapabilities, or the overburden ofnatural water filtration capacities do notconstitute plowing. Plowing will neverinvolve a discharge of dredged or'fillmaterial.

(E) Seeding. means the sowing f seedand placement of seedlings to producefarm, ranch, or forest crops and includesthe placement of soil beds for seeds or-seedlings on established farm and forestlands.

(2) Maintenance, including emergencyreconstruction of recently damagedparts, of currently serviceable structures,

such as dikes, dams, levees, groins,riprap, breakwaters, causeways, bridgeabutments or approaches, andtransportation structures. Maintenancedoes not include any modification thatchanges the character, scope, or size ofthe original fill design. Emergencyreconstruction must occur within areasonable period of'time after damageoccurs in order to qualify for thisexemption.

(3) Construction or maintenance offarm or stock ponds or irrigation ditches,or the maintenance (but notconstruction) of drainage ditches. Asimple connection of an irrigation returnor supply ditch to waters of the U.S. andrelated bank stabilization measures areincluded within this exemption. Where atrap, weir, groin,.wall, jetty or otherstructure within waters of the U.S.,which will result in significantdiscernable alterations to flow or'circulation, is: constructed as part of theconnection, such construction requires a404 permit.

[4) Construction of'temporarysedimentation basins on a constructionsite which does not include placement offill material into waters of the U.S; Theterm 'construction site" refers to anysite involving the erection of building,roads, and other discrete structures andthe installation of such structures. Theterm also includes any other land areaswhich involve land-disturbingexcavation activities, includingquarrying or other mining activities,where an increase in the runoff ofsediment is controlled through the use oftemporary sedimentation basins.

(5) Any activity with respect to whicha State has an approved program undersection 208(b)(4) of CWA which meetsthe-requirements of sections 208(b)(4)(B)and (C).

(6) Construction or maintenance offarm roads, forest roads, or temporaryroads for moving mining equipment,where such roads are constructed- andmaintained in accordance with bestmanagement practices (BMPs) to assurethat flow and circulation patterns andchemical and biological characteristicsof waters of'the United States are notimpaired, that the reach of the waters offthe-United States is not reduced, andthat any adverse effect on the aquaticenvironment will be otherwiseminimized. The BMPs which must beapplied to satisfy this provision shallinclude those detailed BMPs describedin the State's approved programdescription pursuant to the requirementsof § 233.22(k)(4], and shall also includethe following baseline provisionsr

(i} Permanent roads (for farming or'forestry activities), temporary access

14224




roads (for mining, forestry, or farmpurposes) and skid trails (for logging) inwaters of the U.S. shall be held to theminimum feasible number, width, andtotal length consistent with the purposeof specific farming, silvicultural ormining operations, and local topographicand climatic conditions;

(ii) All roads, temporary orpermanent, shall be located sufficientlyfar from streams or other water bodies(except for portions of such roads whichmust cross water bodies) to minimizedischarges of dredged or fill materialinto waters of the U.S.

(iii) The road fill shall be bridged,culverted, or otherwise designed toprevent the restriction of expectedfloods flows:

(iv) The fill shall be properlystabilized and maintained during andfollowing construction to preventerosion;

(v) Discharges fo dredged or fillmaterial into waters of the United Statesto construct a road fill shall be made ina manner that minimizes theencroachment of trucks, tractors,bulldozers, or other heavy equipmentwithin waters of the United States(including adjacent wetlands) that lieoutside the lateral boundaries of the fillitself;

(vi) In designing, constructing, andmaintaining roads, vegetativedisturbance in the waters of the U.S.shall be kept to a minimum;

(vii) The design, construction andmaintenance of the road crossing shallnot disrupt the migration or othermovement of those species of aquaticlife inhabiting the water body;

(viii) Borrow material shall be takenfrom upland sources whenever feasible;

(ix) The discharge shall not take, orjeopardize the continued existence of, athreatened or endangered species asdefined under the Endangered SpeciesAct, or adversely modify or destroy thecritical habitat of such species;

(x) Discharges into breeding andnesting areas for migratory waterfowl,spawning areas, and wetlands shall beavoided if practical alternatives exist;

(xi) The discharge shall not be locatedin the proximity of a public water supplyintake

(xii) The discharge shall not occur inareas of concentrated shellfishproduction;

(xiii) The discharge shall not occur ina component of the National Wild andScenic River System;

(xiv) The discharge of material shallconsist of suitable material free fromtoxic pollutants in toxic amounts; and

(xv) all temporary fills shall beremoved in their entirety and the arearestored to its original elevation.

(b) If any discharge of dredged or fillmaterial resulting from the activitieslisted in paragraphs (a)(1)-(6) of thissection contains any toxic pollutantlisted under section 307 of CWA suchdischarge shall be subject to anyapplicable toxic effluent standard orprohibition, and shall require a permitunder the State program.

(c) Any discharge of dredged or fillmaterial into waters of the United Statesincidental to any of thie activitiesidentified in paragraphs (a)(1)-(6) of thissection must have a permit if it is part ofan activity whose purpose is to convertan area of the waters of the UnitedStates into a use to which it was notpreviously subject, where the flow orcirculation of waters of the UnitedStates may be impaired or the reach ofsuch waters reduced. Where theproposed discharge will result in-significant discernible alterations toflow or circulation, the presumption isthat flow or circulation may be impairedby such alteration.

[Note.-For example, a permit will berequired for the conversion of a cypressswamp to some other use or the conversion ofa wetland from silvicultural to agriculturaluse when there is a discharge of dredged orfill materials into waters of the United Statesin conjunction with construction of dikes,drainage ditches or other works or structuresused to effect such conversion. A dischargewhich elevates the bottom of waters of theUnited States without converting it to dryland does not thereby reduce the reach of,but may alter the flow or circulation of,waters of the United States.]

(d) Federal projects which qualifyunder the criteria contained in section404(r) of CWA (Federal projectsauthorized by Congress where an EIShas been submitted to Congress prior toauthorization or an appropriation) areexempt from State section 404 permitrequirements, but may be subject toother State or Federal requirements.

§ 233.36 Prohibitions.No permit shall be issued by the State

Director in the following circumstances:(a) When the conditions of the permit

do not comply with the requirements ofCWA, or regulations and guidelinesimplementing CWA, including thesection 404(b)(1) environmentalguidelines (40 CFR Part 230).

(b) When the Regional Administratorhas objected to issuance of the permitunder section 404(j) of CWA and theobjection has not been resolved.

(c) When, 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) When the proposed dischargewould be into a defined area for whichspecification as a disposal site has beenprohibited, restricted, denied, orwithdrawn by the Administrator undersection 404(c) of CWA, and thedischarge would fail to comply with theAdministrator's actions under thatauthority..

§ 233.37 General permits.(a) Coverage. The State Director may

issue a general permit for similaractivities as specified in paragraph(b)(1) of this section within a definedgeographic area as specified inparagraph (b)(2) of this section, if he orshe determines that the regulatedactivities will cause only minimaladverse environmental effects whenperformed separately and will have onlyminimal cumulative adverse effects onthe environment.

(b) Conditions. In addition to § 233.7,and the applicable requirements of§ 233.8, each general permit shallcontain conditions as follows:

(1) Activities: A specific description ofthe type(s) of activities which areauthorized, including limitations for anysingle operation, to ensure that therequirements of paragraph (a) of thissection are satisfied. At a minimum,these limitations shall include:

(i) The maximum quantity of materialthat may be discharged;

(ii) The type(s) of.material that maybe discharged;

(iii) The depth of fill permitted;(iv) The maximum extent to which an

area may be modified; and(v) The size and type of structure that.

may be constructed.(2) Area: A precise description of the

geographic area to which the generalpermit applies, including, whenappropriate, limitations on the types(s)of water(s) or wetlands whereoperations may be conducted, to ensurethat the requirements of paragraph (a) ofthis section are satisfied.

(3) Notice: The permit shall contain arequirement that no activity isauthorized under the general permitunless the Director receives notice at

.least 30 days in advance of the datewhen the proposed activity is tocommence. The Director may requireany information in the notice necessaryto determine whether the conditions ofthe general permit will be satisfied. Ifwithin 15 days of the date of submissionof the notice the owner or operator has.not been informed by the State Directorof his or her intent to require anindividual permit application, the owneror operator may commence operationsunder the general permit.

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(c) Requiring an individual permit.. (1)Upon receiving notice under paragraph(b)(3) of this section, the State Directormay require, at his discretion, that theowner or operator apply for anindividual permit..Cases where anindividual permit may be requiredinclude:

(1) The activity has more than aminimal adverse environmental effect;

(ii) The cumulative effects on theenvironment of the authorized activitiesare more than minimal; or

(iii) The discharger is not incompliance with the conditions of thegeneral permit.

(2) When the State Director notifiesthe owner or operator within 15 days ofreceipt of notice under paragraph (b)(3)of this section that an individual permitapplication is required for that activity,the activity shall not be authorized bythe general permit.

(3) The Director may require anyperson authorized under a generalpermit to apply for an individual permit.

(d) Under section 404(h)(5) of CWA,States are entitled, after programapproval, to administer and enforcegeneral permits issued by the Secretary.If the State chooses not to administerand enforce these permits, the Secretaryretains jurisdiction until they expire. Ifthe Secretary has retained jurisdictionand if a permit appeal or modificationrequest is not finally resolved when theFederally issued permit expires, theSecretary, upon agreement with theState, may continue to retain jurisdictionuntil the matter is resolved.

§ 233.38 Emergency permits.(a) Coverage. Notwithstanding any

other provision of this Part or Part 124 ofthis Chapter, the State Director maytemporarily permit a specific dredge orfill activity if:

(1) An unacceptable hazard to life orsevere loss of property will occur if anemergency permit is not granted; and

(2) The anticipated threat or loss mayoccur before a permit can be issued ormodified under the proceduresotherwise required by this Part and Part124.

(b) Requirements for issuance. (1) Theemergency permit shall incorporate, tothe extent possible and not inconsistentwith the emergency situation, allapplicable requirements of § §233.7 and233.8.

(Z) Any emergency permit shall belimited in duration to the time requiredto complete the authorized emergencyaction, not to exceed 90 days.

(3) The emergency permit must have acondition requiring restoration of thedisposal site (for example, removal offill, steps to prevent erosion). If more

than 90 days from issuance is necessaryto complete restoration, the permit maybe extended for this purpose only.

(4) The emergency permit may be oralor written. If oral, it must be followedwithin five days by a written emergencypermit.

(5) Notice of the emergency permitshall be published and public commentsreceived in accordance with applicablerequirements of § § 124.10 and 124.11 assoon as possible but no later than 10days after the issuance date.

(6) The emergency permit may be'terminated at any time without processif the State Director determines thattermination is appropriate to protecthuman health or the environment.

§,233.39 Transmission of Information toEPA and other Federal agencies.

(a) The Memorandum of Agreementunder § 233.24 shall provide for thefollowing:

(1) Prompt transmission to theRegional Administrator (by certifiedmail) and to the Corps of Engineers, theU.S. Fish and Wildlife Service, and theNational Marine Fisheries Service of acopy of any complete permit applicationreceived by the State Director, exceptthose for which permit review has beenwaived under § 233.24(d)(1)(i). The Stateshall supply EPA. the Corps ofEngineers, the U.S. Fish and WildlifeService, and the National MarineFisheries Service with copies of permitapplications for which permit reviewhas been waived whenever requestedby such agencies. Where State lawrequires preparation of anenvironmental impact statement (EIS) orsimilar document, and such EIS or otherdocument is available, the EIS or otherdocument shall accompany the permitapplication when transmitted to theRegional Administrator.

(2) Prompt transmission to theRegional Administrator (by certifiedmail) and to the Corps of Engineers, theU.S. Fish and Wildlife Service, and theNational Marine Fisheries Service of'notice of every action taken by the Stateagency related to the consideration ofany permit application, including a copyof each draft permit prepared, and anyconditions, requirements, *or documentswhich are related to the draft permit orwhich affect the authorization of thedraft permit. A draft permit shall beprepared by the State and transmitted toEPA:

(i) At the time of transmission of thecomplete permit application, fordischarges listed in § 233.24(d)(1)(i)(A)-(E);

(ii) Upon request of EPA inaccordance with § 233.40(e)(3), fordischarges not listed in

§ 233.24(d)(1)(i)(A)-(E), unless EPA haswaived review under § 233.24(d)(1)(i).

(3) Prompt transmission to theRegional Administrator, the Corps ofEngineers, the U.S. Fish and WildlifeService, and the. National MarineFisheries Service of a copy of each draftgeneral permit. A draft general permitshall be prepared hy the State wheneverthe State intends to issue a generalpermit.

(4) Transmission to the RegionalAdministrator, the Corps of Engineers,the U.S. Fish and Wildlife Service, andthe National Marine Fisheries Service ofa copy of every issued permit followingissuance, along with any and allconditions and requirements.

(b)(1) State section 404 programs shallcomply with the draft permitrequirements of § § 124.6 (a), (c), (d), and(e) and 124.8 for those discharges whichrequire a draft permit under paragraph(a)(2) of this section and for thosedischarges to be regulated by generalpermits. For discharges which require adraft permit under paragraph (a)(2) ofthis section, public review and EPAreview, under § 233.40, shall be basedon the permit application and the draftpermit. For discharges to be regulatedby general permits, public review andEPA review shall be based on thd draftgeneral permit.

(2) For all other discharges, publicreview and EPA review, if not waivedunder § 233.24(d)(1)(i), shall be based onthe permit application. For thesedischarges,. States need not comply with§ § 124.6 (a), (c), (d), and (e) or 124.8.§ 233.40 EPA review of and objections toState permits.

(a) The Memorandum of Agreementshall provide that the RegionalAdministrator may comment upon,object to, or make recommendationswith respect to permit applications, draftpermits (if prepared under § 233.39),, ordraft general permits within 90 days ofreceipt. If the Regional Administratorintends to comment upon, object to, ormake recommendations with respect toa permit application, draft permit, ordraft general permit, he or she shallnotify the State Director of his or herintent within 30 days of receipt. TheRegional Administrator may notify theState within 30 days of receipt that thereis no comment but reserve the right toobject within 90 days of receipt, basedon any new information brought out bythe public during the comment period orat a hearing. The RegionalAdministrator shall send a copy of anycomment, objection, or recommendationto the permit applicant.

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(b) Within g0 days following receipt ofa permit application, draft permit ordraft general permit for which theRegional Administrator has providednotification under paragraph (a) of thissection, the Regional Administrator mayobject to permit issuance. In order toobject, the Regional Administrator shallset forth in writing and transmit 'to theState Director:

(1) A statement of the reason(s) forthe objection (including the section ofCWA or regulations that support theobjection); and

(2) The actions that must be taken bythe State Director in order to eliminatethe objection (including the conditionswhich the permit would include if itwere issued by the RegionalAdministrator.

(c) When the State Director hasreceived an objection to a permitapplication, draft permit, or draftgeneral permit under this section andhas taken the steps required by theRegional Administrator to eliminate .theobjection, a revised permit shall beprepared and transmitted to theRegional Administrator for review. If nofurther objection is received from theRegional Administrator within 15 daysof the receipt of the revised permit, theDirector may issue the permit.

(d) Any objection under this sectionmust be based upon one or more of thefollowing grounds:

(1) The permit application, draftpermit, or draft general permit fails toapply, or to ensure compliance with, anyapplicable requirements of this Part;

(2) In the case of any permitapplication for which notification to theAdministrator is required under section404(bh)(1)(E) of CWA. the writtenrecommendations of an affected Statehave not been accepted by thepermitting State and the RegionalAdministrator finds the reasons forrejecting the recommendations areinadequate (see § 233.41(c));

(3) The procedures followed inconnection with processing the permitfailed in a material respect to complywith procedures required by CWA, bythis Part, by other regulations andguidelines thereunder, or by theMemorandum of Agreement;

(4) Any finding made by the StateDirector in connection with the draftpermit or draft general permit,misinterprets CWA or any guidelines orregulations thereunder, or misappliesthem to the facts;

(5) Any provisions of the permitapplication, draft permit, or draftgeneral permit relating to themaintenance of records, reporting,monitoring, sampling, or the provision ofany other information by the permitee

are inadequate, in the judgment of theRegional Administrator, to assurecompliance with permit conditions,including water quality standards,required by CWA, by 40 CFR Part 230,or by the draft permit or draft generalpermit;

(6) The information contained in thepermit application is insufficient tojudge compliance with 40 CFR Part 230;or

(7) Issuance of a permit would in anyother respect to outside therequirements of section 404 of CWA, orregulations implementing section 404 ofCWA.

(e) Prior to notifying the State Directorof an objection based upon any of thegrounds set forth in paragraph (d) of thissection, the Regional Administrator

(1) Shall consider all data transmittedpursuant to § § 233.39 and 233.40.

(2) Shall, if the information providedis inadequate to determine whether thepermit application, draft permit, or draftgeneral permit meets the guidelines andrequirements of CWA, request the StateDirector to transmit to the RegionalAdministrator the complete record ofthe permit proceedings before the State,or any portions of the record, or otherinformation, including a supplementedapplication, that the RegionalAdministrator determines are necessaryfor review. This request shall be madewithin 30 days of receipt of the Statesubmittal under § 233.39. It shallconstitute an interim objection to theissuance of the permit, and the period oftime specified in the Memorandum-ofAgreement for the RegionalAdministrator's review shall besuspended from the date of the requestand shall resume when the RegionalAdministrator has received 'such recordor portions requested.

(3) May, in the case of discharges forwhich a draft permit is notautomatically required under§ 233.39(a)(1), request within 30 days ofreceipt of the permit application, thatthe State Director prepare a draft permitunder § 233.39(a)(2)(ii). The draft permitshall be submitted to EPA and otherFederal agencies, as required under§ 233.39(a)(2). When a draft permit isprepared under this subparagraph,Federal and public review shallrecommence under § 233.39(b)(1). TheRegional Administrator's period forreview shall begin upon receipt of thedraft permit.

[Note.-It is anticipated that draft permitswill be requested only in exceptional and/orcomplex cases.]'

(4) May, at his or her discretion, andto the extent feasible within the periodof time available under the

Memorandum of Agreement, afford tointerested persons an opportunity tocomment on the basis for the objection.

(f) Within 90 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. A publichearing in accordance with theprocedures of §§ 124.12 (c) and (d) shallbe held, and public notice provided inaccordance with § 124.10, wheneverrequested by the State issuing -thepermit, or if warranted by significantpublic interest based on requestsreceived.

* (g) A public hearing held underparagraph (f) of this section shall beconducted by the RegionalAdministrator, and, at the RegionalAdministrator's discretion, with theassistance of an EPA panel designatedby the Regional Administrator, in -anorderly expeditious manner.

(h) Following the public hearing theRegional Administrator shall reaffirmthe original objection, modify the termsof the objections, or withdraw theobjection, and shall notify the State ofthis decision.

(i)(1J If no public hearing is held underparagraph (f) of this section and theState does not resubmit a permit revisedto meet the Regional Administrator'sobjection or notify EPA of its intent todeny the permit within 90 days ofreceipt of the objection, the Secretarymay issue the permit in accordance withthe guidelines and regulations of CWA.

(2) If a public hearing is held underparagraph (f) of this section, theRegional Administrator does notwithdraw the objection and the Statedoes not resubmit a permit revised tomeet the Regional Administrator'sobjection or modified objection or notifyEPA of its intent to deny the permitwithin 30 days of the date of theRegional Adminstrator's notificationunder paragraph (h) of this secton. theSecretary may issue the permit inaccordance with the guidelines andregulations of CWA.

§ 233.41 Coordination requirements.(a) General coordination. (1) If the

State has a Statewide CWA section208(b)(4) regulatory program, the StateDirector shall develop an agreementwith the agency designated toadminister such program. The agreementshall include:

(i) A definition of the activities to beregulated by each program;

(ii) Arrangements providing theagencies an opportunity to comment on

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prospective permits, BMPs, and otherrelevant actions; and

(iii) Arrangements incorporating BMPsdeveloped by the section 208(b)(4)program into section 404 permits, whereappropriate.

(2) Where a CWA section 208(b)(4)program has been approved undersection 208(b)(4)(C), no permit shall berequired for activities for which theAdministrator has approved BMP'sunder such approved program except asprovided in § § 233.35 (b) and (c). Untilsuch section 208(b)(4) program has beenapproved by the Administrator, a personproposing to discharge must obtain anindividual permit or comply with ageneral permit.

(3) The State Director shall consultwith any State agency(ies) withjurisdiction over fish and wildliferesources.

(b) Coordination with other Federaland Federal-State review processes.State section 404 programs shall assurecoordination of State section 404 permitswith Federal and Federal-State waterrelated planning and review processes.

(1) The State Director shall assure thatthe impact of proposed discharges willbe consistent with the Wild and ScenicRivers Act when the proposed dischargecould affect portions of riversdesignated wild, recreational, scenic, orunder consideration for suchdesignation.

(2) Agencies with jurisdiction overFederal and Federal-State water relatedplanning and review processes,including the U.S. Army Corps ofEngineers, the U.S. Fish and WildlifeService, and the National MarineFisheries Service, shall notify theRegional Administrator that they wishto comment on a permit application,draft permit, or draft general permitwithin 20 days of receipt by the RegionalAdministrator of the permit application,draft permit, or draft general permit.Such agencies should submit theirevaluation and comments to theRegional Administrator within 50 daysof receipt by the Regional Administratorof the permit application, draft permit,or draft general permit. The RegionalAdministrator may allow any suchagency up to an additional 30 days tosubmit comments, upon request of suchagency.

(3).Al comments from the U.S. ArmyCorps of Engineers, the U.S. Fish andWildlife Service, and the NationalMarine Fisheries Service on permitapplications, draft permits, and draftgeneral permits shall be considered bythe Regional Administrator. If theRegional Administrator does not adopt arecommendation of any such agency, heshall consult with that agency. The final

decision to object or to require permitconditions shall be made by theRegional Administrator.

(c) Coordination with other States. Ifthe proposed discharge 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.

[Note.-States are encouraged to receiveand use information developed by the U.S.Fish and Wildlife Service as part of theNational Wetlands Inventory as it becomesavailable.]

Part 270 is added as follows:

PART 270-EPA ADMINISTEREDPERMIT PROGRAMS: THEHAZARDOUS WASTE PERMITPROGRAM

Subpart A-General InformationSec.270.1 Purpose and scope of these

regulations.270.2 Definitions.270.3 Considerations under Federal law,270.4 Effect of a permit.270.5 Noncompliance and program reporting

by Director.270.6 References.270.7-270.9 [Reserved].

Subpart B-Permit Application270.10 General application requirements.270.11 Signatories to permit applications

and reports.270.12 Confidentiality of information.270.13 Contents of Part A of the permit

application.270.14 Contents of Part B: General

requirements.270.15 Specific Part B information

requirements for containers.270.16 Specific Part B information

requirements for tanks.270.17 Specific Part B information

requirements for surface impoundments.270.18 Specific Part B information

requirements for waste piles.270.19 Specific Part B information

requirements for incinerators.270.20 Specific Part B information

requirements for landfills.270.21 Specific Part B information

requirements for land treatmentfacilities.

270.22-270.29 [Reserved].

Subpart C-Permit Conditions270.30 Conditions applicable to all permits.

Sec.270.31 Requirements for recording and

reporting of monitoring results.270.32 Establishing permit conditions.270.33 Schedules of compliance.270.34-270.39 [Reserved].

Subpart D-Changes to Permits270.40 Transfers of permits.270.41 Major modification or revocation and

reissuance of permits.270.42 Minor modifications of permits.270.43 Termination of permits.270.44-270-49 [Reserved].

Subpart E-Expiration and Continuation ofPermits270.50 Duration of permits.270.51 Continuation of expiring permits.270.52-270.59 [Reserved].

Subpart F-Special Forms of Permits270.60 Permits by rule.270.61 Emergency permits.270.62 Hazardous waste incinerator permits.270.63 Permits for land treatment

demorfstrations using field test orlaboratory analysis.

270.64 Interim permits for UIC wells.270.65-270.69 [Reserved].

Subpart G-Interim Status270.70 Qualifying for interim status.270.71 Operation during interim status.270.72 Changes during interim status.270.73 Termination of interim status.270.74-270.79 [Reserved].

Authority: Pub. L. 94-580, as amended byPub. L. 94-609, 42 U.S.C. 6901 et seq.

Subpart A-General Information

§270.1 Purpose and scope of theseregulations.

(a) Coverage. (1) These permitregulations establish provisions for theHazardous Waste Permit Program underSubtitle C of the Solid Waste DisposalAct, as amended by the ResourceConservation and Recovery Act of 1976,as amended, (RCRA), (Pub. L. 94-580, asamended by Pub. L. 95-609 and by Pub.L. 96-482; 42 U.S.C. 6901 et seq.).

(2) The regulations in this Part coverbasic EPA permitting requirements, suchas application requirements, standardpermit conditions, and monitoring andreporting requirements. Theseregulations are part of a regulatoryscheme implementing RCRA set forth indifferent Parts of the Code of FederalRegulations. The following chartindicates where the regulationsimplementing RCRA appear in the Codeof Federal Regulations.•Sectionof RCRA Coverage Final regulation

SubtitleC.. Overview and definitions... 40 CFR Part 2603001 .......... Indentiication and listing 40 CFR Part 261

of hazardous waste.3002 .......... Generators of hazardous 40 CFR Part 262

waste.3003 .......... Transporters of 40 CFR Part 263

hazardous waste.

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Federal Register / Vol. 48, No. 64 I Friday, April 1, 1983 / Rules and Regulations 14229Sectionof RCRA Coverage Final regulation

3004...... Standards for HWM 40 CFR Parts 264,facilities. 265. 266, and 267

3005...... Permit requirementa for 40 CFR Parts 270HWM facilities, and 124

3006 .......... Guidelines for State 40 CFR Part 271Progra&.

3010...... Preliminary notification of (public notice) 45 FRHWM activity. 12746 Feb. 26.

1980

(3) Technical regulations. The RCRApermit program has separate additionalRegulations that contain technicalrequirements. These separateregulations are used by permit issuingauthorities to determine whatrequirements must be placed in permitsif they are issued. These separateregulations are located in 40 CFR Paris264, 266, and 267.

(b) Overview of the RCRA PermitProgram. Not later than 90 days after thepromulgation or revision of Tegulationsin 40 CFR Part 261 fidentifying andlisting hazardous wastes) generatorsand transporters of hazardous waste,and owners or operators of hazardouswaste treatment, storage, or disposalfacilities may be irequired to file anotification of that activity undersection 3010. Six months after the initialpromulgation of the Part 261 regulations,

-treatment, storage, or disposal ofhazardous waste by any person who hasnot applied for or received a RCRApermit is prohibited. A RCRA permitapplication consists of two parts, Part A(see § 270.13) and Part B (see § 270.14and applicable sections in 270.15-270.29). For "existing HWM facilities."the requirement to submit an applicationis satisfied by submitting only Part A ofthe permit application until the date theDirector sets for submitting Part B of theapplication. (Part A consists of Forms 1and 3 of the Consolidated PermitApplication Forms.) Timely submissionof both notification under section 3010and Part A qualifies owners andoperators of existing HVM facilities(who are required to have a permit) forinterim status under section 3005(e) ofRCRA. Facility owners and operatorswith interim status are treated as havingbeen issued a permit until EPA or aState with interim authorization forPhase II or final authorization underPart 271 makes a final determination onthe permit application. Facility ownersand operators with interim status mustcomply with interim status standards setforth at 40 CFR Part 265 or with theanalagous provisions of a State programwhich has received interim or finalauthorization under Part 271. Facilityowners and operators with interimstatus are not relieved from complyingwith other State requirements. For

existing HWM facilities, the Directorshall set a date, giving at least sixmonths notice, for submission of Part Bof the application. There is no form forPart B of the application; rather, Part Bmust be submitted in narrative form andcontain the information set forth in theapplicable sections of § § 270.14-270.29.Owners or operators of new HWMfacilities must submit Part A and Part Bof the permit application at least 180days before physical construction isexpected to commence.

(c) Scope of the RCRA PermitRequirement. RCRA requires a permitfor the "treatment," "storage," or"disposal" of any "hazardous waste" asidentified or listed in 40 CFR Part 261.The terms "treatment," "storage,""disposal," and "hazardous waste" aredefined in J 270.2. Owners andoperators of hazardous wastemanagement units must have permitsduring the active life fincluding theclosure period) of the unit, and, for anyunit which closes after January 26, 1983,during any post-closure care periodrequired -under § 264.117 and during anycompliance period specified under§ 264.96, including any extension of thecompliance period under § 264.96(c).

(1) Specific inclusions. Owners andoperators of certain facilities requireRCRA permits as well as permits underother programs for certain aspects of thefacility operation. RCRA permits arerequired for:

(i) Injection wells that dispose ofhazardous waste, and associatedsurface facilities that treat, store ordispose of hazardous waste, (See§ 270.64). However, the owner andoperator with a UIC permit in a Statewith an approved or promulgated UICprogram, will be deemed to have aRCRA permit for the injection well itselfif they comply with the requirements of§ 270.60(b) (permit-by-rule for injectionwells).

(ii) Treatment, storage, or-disposal ofhazardous waste at facilities requiringan NPDES permit. However, the ownerand operator of a publicly ownedtreatment works receiving hazardouswaste will be deemed to have a RCRApermit for that waste if they complywith the requirements of § 270.60[c)(permit-by-rule for POTWs).

(iii) Barges or vessels that dispose ofhazardous waste by ocean disposal andonshore hazardous waste treatment orstorage facilities associated with anocean disposal operation. However, theowner and, operator will be deemed tohave a RCRA permit for ocean disposalfrom the barge or vessel itself it theycomply with the requirements of

§ 270.60(a) (permit-by-rule for oceandisposal barges and vessels).

(2) Specific exclusions. The followingpersons are among those who are not.required to obtain a RCRA permit:

(i) Generators who accumulatehazardous waste on site for less than 90days as provided in 40 CFR 262.34.

(i) Farmers who dispose of hazardouswaste pesticides from their own use asprovided in 40 CFR 262.51.

(iii) Persons -who own or operatefacilities solely for the treatment,storage or disposal of hazardous wasteexcluded from regulations under thisPart by 40 CFR 261.4 or.261.5 Ismallgenerator exemption).

(iv) Owners or operators of totallyenclosed treatment facilities .as definedin 40 CFR 260.10.

(V) Owners and operators ofelementary neutralization units orwastewater treatment units as definedin 40 CFR § 260.10.

{vi) Transporters storing manifestedshipments of hazardous waste incontainers meeting the requirements of40 CFR § 262.30 at a transfer facility fora period of ten-days or less.

(vii) Persons adding absorbentmaterial to waste in a container (asdefined in § 260.10 of this chapter) andpersons adding waste to absorbentmaterial in a container, provided thatthese actions occur at the time waste isfirst placed in the container, and§ § 264.17(b), 264.171, and 264.172 of thischapter are complied with.

(3) Further exclusions. (i) A person isnot required to obtain an RCRA permitfor treatment or containment activitiestaken during immediate response to anyof the following situations:

(A) A discharge of a hazardous waste;(B) An imminent and substantial

threat of a discharge of hazardouswaste;

(C) A discharge of a material which,when discharged, becomes a hazardouswaste.

(ii) Any person who continues orinitiates hazardous waste treatment orcontainment activities after theimmediate response is over is subject toall applicable requirements of this Partfor those activities.

(4) Permits for less than an entirefacility. EPA may issue or deny a permitfor one or more units at a facilitywithout simultaneously issuing ordenying a permit to all of the units at thefacility. The interim status of any unitfor which a permit has not been issuedor denied is not affected by the issuanceor denial of a permit to any other uhit atthe facility.

Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983/Rules and Regulations 14229




§ 270.2 Definitions.The following definitions apply to

Parts 270, 271 and 124. Terms notdefined in this section have the meaninggiven by RCRA.


Application means the EPA standardnational forms for applying for a permit,including any additions, revisions ormodifications to the forms; or formsapproved by EPA for use in approvedStates, including any approvedmodifications or revisions. Applicationalso includes the information requiredby the Director under § § 270.14-270.29(contents of Part B of the RCRAapplication).

Approved program or approved Statemeans a State which has been approvedor authorized by EPA under Part 271.

Aquifer means a geological formation,group of formations, or part of aformation that is capable of yielding asignificant amount of water to a well orspring.

Closure means the act of securing aHazardous Waste Management facilitypursuant to the requirements of 40 CFRPart 264.

CWA means the Clean Water Act(formerly referred to as the FederalWater Pollution Control Act or FederalWater Pollution Control Actamendments of 1972) Pub. L. 92-500, asamended by Pub. L. 92-217 and Pub. L.95-576; 33 U.S.C. 1251 et seq.

Director means the RegionalAdministrator or the State Director, asthe context requires, or an authorizedrepresentative. When there is noapproved State program, and there is anEPA administered program, Dirqctormeans the Regional Administrator.When there is an approved Stateprogram, Director normally means theState Director. In some circumstances,however, EPA retains the authority totake certain actions even when there isan approved State program. In suchcases, the term Director means theRegional Administrator and not theState Director.

Disposal means the discharge,deposit, injection, dumping, spilling,leaking, or placing of any hazardouswaste into or on any land or water sothat such hazardous waste or anyconstituent thereof may enter theenvironment or be emitted into the air ordischarged into any waters, includingground water.

Disposal facility means a facility orpart of a facility at which hazardouswaste is intentionally placed into or onthe land or water, and at which

hazardous waste will remain afterclosure.

Draft permit means a documentprepared under § 124.6 indicating theDirector's tentative decision to issue ordeny, modify, revoke and reissue,terminate, or reissue a permit. A noticeof intent to terminate a permit, and anotice of intent to deny a permit, asdiscussed in § 124.5, are types of draftpermits. A denial of a request for'modification, revocation and reissuance,or termination, as discussed in § 124.5 isnot a "draft permit." A proposed permitis not a draft permit.

Elementary neutralization unit meansa device which:

(a) Is used for neutralizing wasteswhich are hazardous wastes only'because they exhibit the corrosivitycharacteristic defined in § 261.22 of thischapter, or are listed in Subpart D ofPart 261 of this chapter only for thisreason; and

(b) Meets the definition of tank,container, transport vehicle, or vessel in§ 260.10 of this chapter.

Emergency permit means a RCRApermit issued in accordance with§ 270.61.

Environmental Protection Agency(EPA) means the United StatesEnvironmental Protection Agency.

EPA means the United StatesEnvironmental Protection Agency.

Existing hazardous wastemanagement (HWM facility or existingfacility means a facility which was inoperation or for which constructioncommenced on or before November 19,1980. A facility has commencedconstruction if:

(a) The owner or operator hasobtained the Federal, State and localapprovals or permits necessary to beginphysical construction; and either

(b)(1) A continuous on-site, physicalconstruction program has begun; or

(2) The owner or operator has enteredinto contractual obligations whichcannot be cancelled or modified withoutsubstantial loss-for physicalconstruction of the facility to becompleted within a reasonable time.

Facility or activity means any HWMfacility or any other facility or activity(including land or appurtenancesthereto) that is subject to regulationunder the RCRA program.

Federal, State and local approvals orpermits necessary to begin physicalconstruction means permits andapprovals required under Federal, Stateor local hazardous waste controlstatutes, regulations or ordinances.

Final authorization means approvalby EPA of a State program which hasmet the requirements of section 3006(b)

of RCRA and the applicablerequirements of Part 271, Subpart A.

Generator means any person, by sitelocation, whose act, or process produces"hazardous waste" identified or listed, in40 CFR Part 261.

Ground water means water below theland surface in a zone of saturation.

Hazardous waste means a hazardouswaste as defined in 40 CFR 261.3.

Hazardous Waste Managementfacility (HWM facility) means allcontiguous land, and structures, otherappurtenances, and improvements onthe land, used for treating, storing, ordisposing of hazardous waste. A facilitymay consist of several treatment,storage, or disposal operational units(for example, one or more landfills,surface impoundments, or combinationsof them).

HWMfacility means HazardousWaste Management facility.

Injection well means a well intowhich fluids are being injected.

In operation means a facility which istreating, storing, or disposing ofhazardous waste.

Interim authorization means approvalby EPA of a State hazardous wasteprogram which has met therequirements of section 3006(c) of RCRAand applicable requirements of Part 271,Subpart B.

Major facility means any facility oractivity classified as such by theRegional Administrator, or, in the caseof approved State programs, theRegional Administrator in conjunctionwith the State Director.

Manifest means the shippingdocument originated and signed by thegenerator which contains theinformation required by Subpart B of 40CFR Part 262.

National Pollutant DischargeElimination System means the nationalprogram for issuing, modifying, revokingand reissuing, terminating, monitoringand enforcing permits, and imposing andenforcing pretreatment requirements,under sections 307, 402, 318, and 405 ofthe CWA. The term includes anapproved program.

NPDES means National PollutantDischarge Elimination System.

New HWM facility means aHazardous Waste Management facilitywhich began operation or for whichconstruction commenced afterNovember 19, 1980.

Off-site means any site which is noton-site.

On-site means on the same orgeographically continguous propertywhich may be divided by public orprivate right(s)-of-way, provided theentrance and exit between the

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properties is at a cross-roadsintersection, and access is by crossingas opposed to going along, the right(s)-of-way. Non-contiguous propertiesowned by the same person butconnected by a right-of-way which theperson controls and to which the publicdoes not have access, is also consideredon-site property.

Owner or operator means the owneror operator of any facility or activitysubject to regulation under RCRA.

Permit means an authorization,license, or equivalent control documentissued by EPA or an approved State toimplement the requirements of this Partand Parts 271 and 124. Permit includespermit by rule (§ 270.60), and emergencypermit (§ 270.61). Permit does notinclude RCRA interim status (Subpart Gof this part), or any permit which hasnot yet been the subject of final agencyaction, such as a draft permit or aproposed permit.

Permit-by-rule means a provision ofthese regulations stating that a facilityor activity is deemed to have a RCRApermit if it meets the requirements of theprovision.

Person means an individual,association, partnership, corporation,municipality, State or Federal agency, oran agent.or employee thereof.

Phase I means that phase of theFederal hazardous waste managementprogram commencing on the effectivedate of the last of the following to beinitially promulgated: 40 CFR Parts 260,261, 262, 263, 265, 270 and 271.Promulgation of Phase I refers topromulgation of the regulationsnecessary for Phase I to begin.

Phase II means that phase of Federalhazardous waste management programcommencing on the effective date of thefirst Subpart of 40 CFR Part 264,Subparts F through R to be initiallypromulgated. Promulgation of Phase IIrefers to promulgation of the regulationsnecessary for Phase II to begin.

Physical construction meansexcavation, movement of earth, erectionof forms or structures, or similar activityto prepare an HWM facility to accepthazardous waste.

POTW means publicly ownedtreatment works.

Publicly owned treatment works(POTW) means any device or systemunsed in the treatment (includingrecycling and reclamation) of municipalsewage or industrial wastes of a liquidnature which is owned by a State ormunicipality. This definition includessewers, pipes, or other conveyancesonly if they convey wastewater to aPOTW providing treatment.

RCRA means the Solid WasteDisposal Act as amended by the

Resource Conservation and RecoveryAct of 1976 (Pub. L. 94-580, as amendedby Pub. L. 95-609 and Pub. L. 96-482, 42U.S.C. 6901 et seq.)


Schedule of compliance means aschedule of remedial measures includedin a permit, including an enforceablesequence of interim requirements (forexample, actions, operations, ormilestone events) leading to compliancewith the Act and regulations.

SDWA means the Safe DrinkingWater Act (Pub. L..95-523, as amendedby Pub. L. 95-1900; 42 U.S.C. 3001 etseq.).

Site means the land or water areawhere any facility or activity isphysically located or conducted,including adjacent land used inconnection with the facility or activity.

Spill means the accidental spilling,leaking, pumping, emitting, emptying, ordumping of hazardous wastes ormaterials which, when spilled, becomehazardous wastes into or on any land orwater.

State means any of the 50 States, theDistrict of Columbia, Guam, theCommonwealth of Puerto Rico, theVirgin Islands, American Samoa, andthe Commonwealth of the NorthernMariana Islands.

State Director means the chiefadministrative officer of any Stateagency operating an approved program,or the delegated representative of theState Director. If responsibility isdivided among two or more Stateagencies, State Director means the chiefadministrative officer of the Stateagency authorized to perform theparticular procedure or function towhich reference is made.

State/EPA Agreement means-anagreement between the RegionalAdministrator and the State whichcoordinates EPA and State activities,responsibilities and programs.

Storage means the holding ofhazardous waste for a temporary period,at the end of which the hazardous wasteis treated, disposed, or storedelsewhere.

Transfer facility means anytransportation-related facility includingloading docks, parking areas, storageareas and other similar areas whereshipments of hazardous waste are heldduring the normal course oftransportation.

Transporter means a person engagedin the off-site transportation of

hazardous waste by air, rail, highway orwater.

Treatment means any method,technique, or process, includingneutralization, designed to change thephysical, chemical, or biologicalcharacter or composition of anyhazardous waste so as to neutralizesuch wastes, or so as to recover energyor material resources from the waste; orso as to render such waste non-hazardous, or less hazardous; safer totransport, store, or dispose of: oramenable for recovery, amenable forstorage, or reduced in volume.

UIC means the Underground InjectionControl Program under Part C of theSafe Drinking Water Act, including anapproved program.

Underground injection means a wellinjection.

Underground source of drinking water(USDW) means an aquifer or its portion:

(a)(1) Which supplies any publicwater system; or

(2) Which contains a sufficientquantity of ground water to supply apublic water system; and

(i) Currently supplies drinking waterfor human consumption; or

(ii) Contains fewer than 10,000 mg/ltotal dissolved solids; and

(b) Which is not an exempted aquifer.USDW means underground source of

drinking water.Wastewater treatment unit means a

device which:(a) Is part of a wastewater treatment

facility which is subject to regulationunder either Section 402 or Section307(b) of the Clean Water Act; and

(b) Receives and treats or stores aninfluent wastewater which is ahazardous waste as defined in § 261.3 ofthis chapter, or generates andaccumulates a wastewater treatmentsludge which is a hazardous waste asdefined in § 261.3 of this chapter, ortreats or stores a wastewater treatmentsludge which is a hazardous waste asdefined in § 261.3 of this chapter; and

(c) Meets the definition of tank in§ 260.10 of this chapter.

§ 270.3 Considerations under Federal law.Permits shall be issued in a manner

and shall contain conditions consistentwith requirements of applicable Federallaws. These laws may include:

(a) The Wild and Scenic Rivers Act.16 U.S.C. 1273 et seq. Section 7 of theAct prohibits the RegionalAdministrator from assisting by licenseor otherwise the construction of anywater resources project that would havea direct, adverse effect on the values for.which a national wild and scenic riverwas established.

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14232 Federal, Register / VoL 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations

(b) The National HistoricPreservation Act of 1966. 16 U.S.C. 470et seq. Section 106 of the Act andimplementing regulations (36 CFR Part800) require the Regional Administrator,before issuing a license, to adoptmeasures when feasible to. mitigatepotential adverse effects of the licensedactivity and properties listed or eligiblefor listing in the National' Register ofHistoric Places. The Act's requirementsare to be implemented'in. cooperationwith State Historic Preservation Officersand upon notice to, and whenappropriate, in consultation with theAdvisory Council on HistoricPreservation.

(c) The Endangered Species Act.. 16U.S.C. 1531 et seq. Section 7 of the Actand implementing regulations (50 CFRPart 402) require the RegionalAdministrator to ensure, in. consultationwith the Secretary of the Interior orCommerce, that any action authorizedby EPA is not likely to jeopardize thecontinued existence of any endangeredor threatened species or adversely affectits critical habitat.

(d) The Coastal Zone ManagementAct. 16 U.S.C. 1451 etseq. Section 307(c)of the Act and implementing regulations(15 CFR Part 930)- prohibit EPA fromissuing a permit for an activity affectingland or water use in the coastal zoneuntil the applicant certifies that the-proposed activity complies with theState Coastal Zone Managementprogram, and the State or its designatedagency concurs with the certification (orthe Secretary of Commerce overridesthe State's nonconcurrence).

(e) The Fish and WildlifaCoordination Act. 16 U.S.C. 661 et seq.requires that the RegionalAdministrator, before issuing a permitproplosing or authorizing theimpoundment (with certain exemptions),diversion or other control ormodification of any bo-dy of water,consult with the appropriate Stateagency exercising jurisdiction overwildlife. resources to conserve thoseresources.(f) Executive orders; [Reservedl

§ 270.4 Effect of a permit.(a) Compliance with. a RCRA permit

during its term constitutes compliance,for purposes of enforcement, withSubtitle C of RCRA. However; a permitmay be modified, revoked and reissued,or terminated during its term for causeas set forth in §§ 270.41 and 270.43.

(b) The issuance of a permit does notconvey any property rights of any sort,or any exclusive privilege.

(c),The issuance of a permit does notauthorize any injury to persons orproperty or invasion of other private

rights, or any infringement of State orlocal law or regulations.

§ 270.5 Noncompliance and program,reporting by the Director.

The Director shall prepare quarterlyand annual reports as detailed below.When the State is the permit-issuingauthority, the State Director shall submitany reports required under this sectionto the Regional Administrator. WhenEPA is the permit-issuing adthority, theRegional Administrator shall submit anyreport required under this section toEPA Headquarters. For purposes of thissection only, RCRApermittees shallinclude RCRA interim status facilities,when appropriate.

(a) Quarterly reports. The. Director-shall submit quarterly narrative reportsfor major facilities as follows:


(i) Informatiorr on noncompliance foreach facility;

(ii) Alphabetize by permittee name.When two or more permittees have thesame .name,, the lowest permit numbershall be entered first;

(iii) For each entry on the list, includethe following information in thefollowing order:

(A) Name, location, and permitnumber of the noncomplying permittee.

(B) A brief'description and date ofeach instance of noncompliance for thatpermittee. Instances, of noncompliancemay include one or mora of the kinds setforth in paragraph (a)(2) of this section.When a permittee has noncompliance ofmore than one kind. combine the "information into a single entry for eachsuch permittee.

(C) The date(s) and a brief descriptionof the action(s).

(D) Status of the instance(s) of.noncompliance with the date of thereview of the status or the date ofresolution.


(2) Instances of noncompliance to bereportqd. Any instances ofnoncompliance within the followingcategories shall be reported insuccessive reports until thenoncompliance is reported as resolved..Once noncompliance is reported asresolved it need not appear in'subsequent reports.

(i) Failure to complete constructionelements. When the permittee has failedto complete, by the date specified in thepermit, an element of a complianceschedule involving either planning forconstruction (for example, award of acontract, preliminary plans), or aconstruction step (for example, begin

construction, attain operation level); andthe permittee has not returned tocompliance by accomplishing therequired element of the schedule within30 days from. the date a complianceschedule report is due under the-permit.

(ii) Modifications to scheduL-s cfcompliance When a schedule ofcompliance in the permit has beenmodified under § 270.41 or 273.42because of the permittee'snoncompliance..

(iii) Failure to complete or providecompliance schedule or monitoringreports. When the permittee has failedto complete or provide a report requiredin a permit compliance schedule (forexample, progress report or notice ofnoncompliance or compliance) or amonitoring reportz and the permittee hasnot submitted the complete reportwithin 30 days from the date it is dueunder the permit for complianceschedules, or from the date specified inthe permit for monitoring reports.

(iv) Deficient reports. When therequired reports provided by thepermittee are so deficient as to causemisunderstanding by the Director andthus impede the review of the status ofcompliance.

(v) Noncompliance with other permitrequirements. Noncompliance shall bereported in the following circumstances:

(A) Whenever the permittee hasviolated a permit requirement (otherthan reported under paragraph (a)(2)(i)or (ii) of this section), and has notreturned to compliance within 45 daysfrom the date reporting ofnoncompliance was due under thepermit; or

(B) When the Director determines thata pattern of noncompliance exists for amajor facility permittee over the mostrecent four consecutive reportingperiods. This pattern includes anyviolation of the s~ae requirement in twoconsecutive reporting periods, and anyviolation of one or more requirements ineach of four consecutive reportingperiods; or

(C) When the Director determinessignificant permit noncompliance orother significant event has occurred-,such as a fire or explosion.

(vi) All other. Statistical informationshall be reported quarterly on all otherinstances of noncompliance by majorfacilities with permit requirements nototherwise reported under paragraph (a)of this section.

(3) In addition to the annual non-compliance report, the Director shallprepare a "program report" whichcontains information (in a manner andform prescribed by the Administrator)on generators and transporters and the




permit status of regulated facilities. TheDirector shall also include, on a biennialbasis, summary information on thequantities and types of hazardouswastes generated, transported, treated,stored, and disposed during thepreceding odd numbered year. Thissummary information shall be reportedaccording to EPA characteristics andlists of hazardous wastes at 40 CFR Part261.

(b) Annual reports.(1) Annual noncompliance report.

Statistical reports shall be submitted bythe Director on nonmajor RCRApermittees indicating the total numberreviewed, the number of noncomplyingnonmajor permittees, the number ofenforcement actions, and number ofpermit modifications extendingcompliance deadlines. The statisticalinformation shall be organized to followthe types of noncompliance listed inparagraph (a) of this section.

(2) In addition to the annualnoncompliance report, the Director shallprepare a "program report" whichcontains information (in a manner andform prescribed by the Administrator)on generators and transporters; thepermit status of regulated facilities; andsummary information on the quantitiesand types of hazardous wastesgenerated, transported, stored, treated,and disposed during the preceding year.This summary information shall bereported according to EPAcharacteristics and lists of hazardouswastes at 40 CFR Part 261.

(c) Schedule.(1) For all quarterly reports. On the

last working day of May, August,November, and February, the StateDirector shall submit to the RegionalAdministrator information concerningnoncompliance with RCRA permitrequirements by major facilities in theState in accordance with the followingschedule. The Regional Administratorshall prepare and submit information forEPA-issued permits to EPAHeadquarters in accordance with thesame schedule.


NONCOMPLIANCE BY MAJOR DISCHARGERS

(Date for completion of reports]

January, February, and March .... 'May 31April, May, and June .................... 'August 31July, August, and September . November 30October November, and De- 'February 28

cember.

'Reports must be made available to the public for inspec-tion and copying on this date.

§ 270.6 References.(a) When used in Part 270 of this

Chapter, the following publications areincorporated by reference:

"Test Methods for the Evaluation ofSolid Waste, Physical/ChemicalMethods" (1980], EPA publicationnumber SW-846, available from the U.S.Environmental Protection Agency, 26 W.St. Clair St., Cincinnati, Ohio 45268.

(b) The references listed in paragraph(a) of this section are also available forinspection at the Office of the FederalRegister, 1100 L Street, N.W.,Washington, D.C. 20408. Theseincorporations by reference wereapproved by the Director of the FederalRegister. These materials areincorporated as they exist on the date ofapproval and a notice of any change inthese materials will be published in theFederal Register.

§§ 270.7-270.9 [Reserved]

Subpart B-Permit application

§ 270.10 General applicationrequirements.

(a) Permit application. Any personwho is required to have a permit(including new applicants andpermittees with expiring permits) shallcomplete, sign, and submit anapplication to the Director as describedin this section. Persons currentlyauthorized with interim status shallapply for permits when required by theDirector. Persons covered by RCRApermits by rule (§ 270.60), need notapply. Procedures for applications,issuance and administration ofemergency permits are foundexclusively in § 270.61.

(b) Who applies? When a facility oractivity is owned by one person but isoperated by another person, it is theoperator's duty to obtain a permit,except that the owner must also sign thepermit application.

(c) Completeness. The Director shallnot issue a permit before receiving acomplete application for a permit exceptfor permits by rule, or emergencyperrihits. An application for a permit iscomplete when the Director receives anapplication form and any supplementalinformation which are completed to hisor her satisfaction. The completeness ofany application for a permit shall bejudged independently of the status ofany other permit application or permitfor the same facility. For EPA-Administered programs, an applicationwhich is reviewed under § 124.3 iscomplete when the Director receivesinformation listed in a notice ofdeficiency.

(d) Information requirements. Allapplicants for RCRA permits shallprovide information set forth in § 270.13and applicable sections in § § 270.14-270.29 to the Director, using the

application form provided by theDirector.

(e) Existing HWM facilities. (1)Owners and operators of existinghazardous waste management facilitiesmust submit Part A of their permitapplication to the RegionalAdministrator no later than (i) six-months after the date of publication ofregulations which first require them tocomply with the standards set forth in40 CFR Parts 265 or 266, or (ii) thirtydays after the date they first becomesubject to the standards set forth in 40CFR Parts 265 or 266, whichever firstoccurs.

[Note.-For facilities which must complywith Part 265 because they handle a wastelisted in EPA's May 19, 1980, Part 261regulations (45 FR 33006 et seq.], the deadlinefor submitting an application is November 19,1980. Where other existing facilities mustbegin in complying with Parts 265 or 266 at alater date because of revisions to Parts 260,261, 265, or 266, the Administrator willspecify in the preamble to those revisionswhen those facilities must submit a permitapplication.]

(2) The Administrator may bypublication in the Federal Registerextend the date by which owners andoperators of specified classes of existinghazardous waste management facilitiesmust submit Part A of their permitapplication if he finds that (i) there hasbeen substantial confusion as towhether the owners and operators ofsuch facilities were required to file apermit application and (ii) suchconfusion is attributed to ambiguities inEPA's Parts 260, 261, 265, or 266regulations.

(3) The Administration may bycompliance order issued under Section3008 of RCRA extend the date by whichthe owner and operator of an existinghazardous waste management facilitymust submit Part A of their permitapplication.

(4) At any time after promulgation ofPhase II the owner and operator of anexisting HWM facility may be requiredto submit Part B of their permitapplication. The State Director mayrequire submission of Part B (orequivalent completion of the StateRCRA application process) if the Statein which the facility is located hasreceived interim authorization for PhaseII or final authorization; if not, theRegional Administrator may requiresubmission of Part B. Any owner oroperator shall be allowed at least sixmonths from the date of request tosubmit Part B of the application. Anyowner or operator of an existing HWMfacility may voluntarily submit Part B ofthe application at any time.

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Federal Register / VoL 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations

(5) Failure to furnish a requested partB application on time, or to furnish infull the information required.by the PartB application., is grounds for terminationof interim status under Part 124..

(f3 New -I4M facilities. (1) Except asprovided in paragraph (f)(3) of thissection, no person. shall begin physicalconstruction- of a new l{WM facilitywithout having submitted Part A andPart B of the-permit application, and-having received a finally effective RCRApermit.

(2) An application for a permit for anew HFM facility (including both PartA and Part B) may be filed any timeafter promulgation of those standards inPart 264, Subpart I et seq. applicable tosuch facility. The application shall befiled with the RegionalAdministrator ifat the time of application the State inwhich. the new HWM facility is'proposed to be located has not receivedPhase II interim authorization. forpermitting such facility or finalauthorization; otherwise it shalibe filedwith the State Director. Except asprovided in paragraph (f)(3) of thissection, all applications must besubmitted at least 180 days beforephysical construction is expected tacommence.

(3) AfterNovember-19, i980, but priorto the effective date of those standardsin Part.264, Subpart retseq., which areapplicable to his facility; a: person maybegin physical: construction of a newHWM facility;. except for landfills,injection wells, land treatment facilitiesor surface impoundments (as defined in40 CFR 260.10), without having receiveda finally effective RCRA permit. If priorto beginning physical construction, such-person has:

(i) Obtained the Federal, State andlocal approvals or permits.necessary tobegin_ physical construction;

(ii) SubmittedrPart ALof the, permitapplication; and

(iii) Made a commitment to completephysical construction of the facilitywithin a reasonable time.. Such personsmay continue physical construction ofthe HWM facility after the effective dateof the permitting standards in Part 264,Subpart I et seq., applicable to,-his ,facility if he- subnits Part B of the-permitapplication. on cr before the effectivedate of such standards [or on some laterdate specified by the Administrator}Such person must not operate the HWMfacility without having received a finallyeffective RCRA permit.

(g) Updating permit application&. (1) Ifany owner or operator of a HWMfacility has filed PartAof a permitapplication- and has not yet filed Part B,the owner or operator shall file. anamended Part A application:

(i) With the Regional Administrator, ifthe facility is located in a State whichhas not obtained interim authorizationfor phase II or final, authorization, withinsix months after the.promulgation ofrievised regulations under Part 261. listingor-identifying additional hazardouswastes, if the facility is treating, storing,or disposing of any of thosenewly listedor identified wastes..

(ii) With the State Director, if thefacility is located in a State. which hasobtained Phase II interim authorizationor final authorization. no later than theeffective date of regulatory provisionslisting -or designating wastes ashazardous in that State in addition tothose listed or designated under thepreviously approved State program, ifthe facility is treating, storing, ordisposing of any of those newly listed ordesignated wastes; or

(iii) As necessary to comply withprovisions of § 270.72 for changes duringinterim status or with the analogousprovisions of a State program approvedfor final authorization or interimauthorization for Phase II. Revised PartA applications necessary to, comply withthe provisions of §" 270 .72 shall he filedwith the Regional Administrator if theState in" which the facility in question islocated does nothave Phase II interimauthorization or final authorization;otherwise it shall be filed with the StateDirector (if the State has an. analogousprovision).

(2) The owner or operator of a facilitywho fails to comply with the updatingrequirements of paragraph (g)(1) of thissectin does not receive interim statusas to the wastes not coveredby dulyfiled PartA applications..

(h) Reapplicatioan. Any HWM facilitywith an effective permit shall submit anew application, at least 180 days beforethe expiration date of the effectivepermit, unless permisni for a laterdate has been granted by the Director.(The Director sall not grant permiesi6nfor applications to-be submitted laterthan the expiration: data of the existingperm*t.)

(i) Record kenping, Applicants shallkeep records, of all: data us ed tocofipLte pemift applications and anysupplemental infbmation submittedunder § § 270.10(d),.270.13, 270.14-270:21for a periad of atleast 3 year fromn thedate the applicatimis si-ned.



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

(2) For a partnership or sole:-proprietorship; by a general partner orthe proprietor, respectively; or

(3) Fora mumninzality; State; Federal,or atlwrpuhb& agency- by either a.principal executive officer or rankingelected official

(b) Reports.. All reports required bypermits and other information requestedby-the Director shall be signed by aperson described in paragraph (a) of thissection, or by a duly authorizedrepresentative of that person. A personis a duly authorized representative onlyif:

(11 The authorization is made inwriting by a person described inparagraph (a) of this section-

(2) The authorization specifies eitheran individual or a position havingresponsibility for overall operation ofthe regulated facility or activity such asthe.position of plant manager, operatorof a well or a well field, superintendent,or position of equivalent responsibility.(A duly authorized representative maythus be either a named individual or anyindi dual. occupying a named position);and

(3) The written, authorization issubmitted to the Director.

(c) Changes to authorization; If anauthorization underparagraph. (b) of thissection is no longer accurate because adifferent individual- or position hasresponsibility for the overall operationof the facility, a new authorizationsatisfying the requirements ofparagraph(b) of this section must be submitted tothe Director prior to or together with anyreports, information, or applicatibns tobe signed by an authorized.representative.

(d) Certification.. Any person signing adocument under paragraph (a) or (b) ofthis section shall make the followingcertification:

I certify underpenalty of law thatLhavepersonally examined and am.familiar withthe information submitted in this documentand all attachments and that, basedon myinquiry of those individuals immediatelyresponsible for obtaining the information, Ibelieve that the information is true, accurate,and complete. L am aware that there #resignificant.penalties for submitting falseinformation, includingthe possibility offineand imprisonment.


any information submitted to EPApursuant ta these, regulations may beclaimed as confidential by the submitter.Any such claim must be asserted at thetime of submission in the mannerprescribed on the, application form orinstructions or, in the case of othersubmissions, by stamping the words

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"confidential business information" oneach page containing such information.If n'o claim is made at the time ofsubmission, EPA may make theinformation available to the publicwithout further notice. If a claim isasserted, the information will be treatedin accordance with the procedures in 40CFR Part 2 (Public Information).

(b) Claims of confidentiality for thename and address of any permitapplicant or permittee will be denied.

§ 270.13 Contents of Part A of the permitapplication.

Part A of the RCRA application shallinclude the following information:

(a) The activities conducted by theapplicant which require it to obtain apermit under RCRA.

(b) Name, mailing address, andlocation, including latitude andlongitude of the facility for which theapplication is submitted.

(c) Up to four SIC codes which bestreflect the principal products or servicesprovided by the facility.

(d) The operator's name, addiess,telephone number, ownership status,and status as Federal, State, private,public, or other entity.

(e) The name, address, and phonenumber of the owner of the facility.

(f) Whether the facility is located onIndian lands.

(g) An indication of whether thefacility is new or existing and whether itis a first or revised application.

(h) For existing facilities, (1) a scaledrawing of the facility showing thelocation of all past, present, and futuretreatment, storage, and disposal areas;and (2) photographs of the facilityclearly delineating all existingstructures; existing treatment, storage,and disposal areas; and sites of futuretreatment, storage, and disposal areas.

(i) A description of the processes to beused for treating, storing, and disposingof hazardous waste, and the designcapacity of these items.

(j) A specification of the hazardouswastes listed or designated under 40CFR Part 261 to be treated, stored, ordisposed of at the facility, an estimate ofthe quantity of such wastes to betreated, stored, or disposed annually,and a general description of theprocesses to be used for such wastes.

(k) A listing of all permits orconstruction approvals received orapplied for under any of the followingprograms:

(1) Hazardous Waste Managementprogram under RCRA.

(2) UIC program under the SWDA.(3) NPDES progrhm under the CWA.

(4) Prevention of SignificantDeterioration (PSD) program under theClean Air Act.

(5) Nonattainment program under theClean Air Act.

(6) National Emission Standards forHazardous Pollutants (NESHAPS)preconstruction approval under theClean Air Act.

(7) Ocean dumping permits under theMarine Protection Research andSancturaies Act.

(8) Dredge or fill permits under section404 of the CWA.

(9) Other relevant environmentalpermits, including State permits.

(1) A topographic map (or other map ifa topographic map is unavailable)extending one mile beyond the propertyboundaries of the source, depicting thefacility and each of its intake anddischarge structures; each of itshazardous waste treatment, storage, ordisposal facilities; each well wherefluids from the facility are injectedunderground; and those wells, springs,other surface water bodies, and drinkingwater wells listed in public records orotherwise known to the applicant withinY4 mile of the facility property boundary.

(m) A brief description of the natureof the business.

§ 270.14 Contents of Part B: GeneralRequirements.

(a) Part B of the permit applicationconsists of the general informationrequirements of this section, and thespecific information requirements in§ § 270.14-270.29 applicable to thefacility. The Part B informationrequirements presented in § § 270.14-270.29 reflect the standards promulgatedin 40 CFR Part 264. These informationrequirements are necessary in order forEPA to determine compliance with thePart 264 standards. If owners andoperators of HWM facilities candemonstrate that the informationprescribed in Part B can not be providedto the extent required, the Director maymake allowance for submission of suchinformation on a case-by-case basis.Information required in Part B shall besubmitted to the Director and signed inaccordance with requirements in§ 270.11. Certain technical data, such asdesign drawings and specifications, andengineering studies shall be certified bya registered professional engineer.

(b) General information requirements.The following information is required forall HWM facilities, except as § 264.1provides otherwise:

(1) A general description of thefacility.

(2) Chemical and physical analyses ofthe hazardous waste to be handled atthe facility. At a minimum, these

analyses shall contain all theinformation which must be known totreat, store, or dispose of the wastesproperly in accordance with Part 264.

(3) A copy of the waste analysis planrequired by § 264.13(b) and, if applicable§ 264.13(c).

(4) A description of the securityprocedures and equipment required by§ 264.14, or a justification demonstratingthe reasons for requesting a waiver ofthis requirement.

(5) A copy of the general inspectionschedule required by § 264.15(b); Includewhere applicable, as part of theinspection schedule, specificrequirements in § § 264.174, 264.194,264.226, 264.254, 264.273, aid 264.303.

(6) A justification of any request for awaiverls) of the preparedness andprevention requirements of Part 264,Subpart C.

(7) A copy of the contingency planrequired by Part 264, Subpart D. Note:Include, where applicable, as part of thecontingency plan, specific requirementsin § § 264.227 and 264.255.

(8) A description of procedures,structures, or equipment used at thefacility to:

(i) Prevent hazards in unloadingoperations (for example, ramps, specialforklifts);

(ii) Prevent runoff from hazardouswaste handling areas to other areas ofthe facility or environment, or to preventflooding (for example, berms, dikes,trenches;

(iii) Prevent contamination of watersupplies;

(iv) Mitigate effects of equipmentfailure and power outages; and

(v) Prevent undue exposure ofpersonnel to hazardous waste (forexample, protective clothing).

(9) A description of precautions toprevent accidental ignition or reaction ofignitable, reactive, or incompatiblewastes as required to demonstratecompliance with § 264.17 includingdocumentation demonstratingcompliance with § 264.17(c).

(10) Traffic pattern, estimated volume(number, types of vehicles) and control(for example, show turns across trafficlanes, and stacking lanes (ifappropriate); describe access roadsurfacing and load bearing capacity;show traffic control signals).

(11) Facility location information;(i) In order to determine the

applicability of the seismic standard[§ 264.18(a)] the owner or operator of anew facility must identify the politicaljurisdiction (e.g., county, township, orelection district) in which the facility isproposed to be located.

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[Comment: If the county or election districtis not listed in Appendix VI of Part 264, nofurther information is required todemonstrate compliance with § 264.18(a).]

(ii), If the facility is proposed to belocated in an area listed in Appendix VIof Part 264, the owner or operator shalldemonstrate compliance with the*seismic standard. This demonstrationmay be made using either publishedgeologic data or data obtained from fieldinvestigations carried out by theapplicant. The information providedmust be of such quality to be acceptableto geologists experienced in identifyingand evaluating seismic activity. Theinformation submitted must show thateither:*

(A) No faults which have haddisplacement in Holocene time arepresent, or no lineations which suggestthe presence of a fault (which havedisplacement in Holocene time) within3,000 feet of a facility are present, basedon data from:

(1) Published geologic studies,(2) Aerial reconnaissance of the area

within a five-mile radius from thefacility.

(3) An analysis of aerial photographscovering a 3,000 foot radius of thefacility, and

(4) If needed to clarify the above data,a reconnaissance based on walkingportions of the area within 3,000 feet ofthe facility, or

(B) If faults (to include lineations)which have had displacement inHolocene time are present within 3,000feet of a facility, no faults pass with 200feet of the portions of the facility wheretreatment, storage, or disposal ofhazardous waste will be conducted,based on data from a comprehensivegeologic analysis of the site. Unless asite analysis is otherwise conclusiveconc6rning the absence of faults within200 feet of such portions of the facilitydata shall be obtained from asubsurface exploration (trenching) of thearea within a distance no less than 200feet from portions of the facility wheretreatment, storage, or disposal ofhazardous waste will be conducted.Such trenching shall be performed in adirection that is perpendicular to knownfaults (which have had displacement inHolocene time) passing within 3,000 feetof the portions of the facility wheretreatment, storage, or disposal ofhazardous waste will be conducted.Such investigation shall document withsupporting maps and other analyses, thelocation of faults found.

[Comment: The Guidance Manual for theLocation Standards provides greater detail onthe content of each type of seismicinvestigation and the appropriate conditions

under which each approach or a combinationof approaches would be used.]

(iii) Owners and operators of allfacilities shall provide an identificationof whether the facility is located withina 100-year floodplain. This identificationmust indicate the source of data for suchdetermination and include a copy of therelevant Federal InsuranceAdministration (FIA) flood map, if used,or the calculations and maps usedwhere an FIA map is not available.Information shall also be providedidentifying the 100-year flood level andany other special flooding factors (e.g.,wave action) which must be consideredin designing, constructing, operating, ormaintaining the facility to withstandwashout from a 100-year flood.

[Comment: Where maps for the NationalFlood Insurance Program produced by theFederal Insurance Administration (FIA] ofthe Federal Emergency Management Agencyare available,, they will normally bedeterminative of whether a facility is locatedwithin or outside of the 100-year floodplain.However, the FIA map excludes an area,(usually areas of the floodplain less than 200feet in width), these areas must beconsidered and a determination made as towhether they are in the 100-year floodplain.Where FIA maps are not available for aproposed facility location, the owner oroperator must use equivalent mappingtechniques to determine whether the facilityis within the 100-year floodplain, and if solocated, what the 100-year flood elevationwould be.]

(iv) Owners and operators of facilitieslocated in the 100-year floodplain mustprovide the following information:

(A) Engineering analysis to indicatethe various hydrodynamic andhydrostatic forces expected to result atthe site as consequence of a 100-yearflood.

(B) Structural or other engineeringstudies showing the design ofoperational units (e.g., tanks,incinerators) and flood protectiondevices (e.g., floodwalls, dikes) at thefacility and how these will preventwashout.

(C) If applicable, and in lieu ofparagraphs (b)(11)(iv) (A) and (B) above,a detaild description of procedures to befollowed to remove hazardous waste tosafety before the facility is flooded,including:

(1) Timing of such movement relativeto flood levels, including estimated timeto move the waste, to show that suchmovement can be completed beforefloodwaters reach the facility.

(2) A description of the location(s) towhich the waste will be moved anddemonstration that those facilities willbe eligible to receive hazardous waste inaccordance with the regulations under

Parts 270, 271, 124, and 264 through 266of this Chapter

(3) The planned procedures,equipment, and personnel to be usedand the means to ensure that suchresources will be available in time foruse.

(4) The potential for accidentaldischarges of the waste duringmovement.

(v) Existing facilities NOT incompliance with § 264.18(b) shallprovide a plan showing how the facilitywill be brought into compliance and aschedule for compliance.

(12) An outline of both theintroductory and continuing trainingprograms by owners or operators toprepare persons to operate or maintainthe HWM facility in a safe manner asrequired to demonstrate compliancewith § 264.16. A brief description of howtraining will be designed to meet actualjob tasks in accordance withrequirements in § 264.16(a)(3).

(13) A copy of the closure plan and,where applicable, the post-closure planrequired by § § 264.112 and 264.118.Include, where applicable, as part of theplans, specific requirements in§ § 264.178, 264.197, 264.228, 264.258,264.280, 264.310, and 264.351.

(14) For existing facilities,documentation that a notice has beenplaced in the deed or appropriatealternate instrument as required by§ 264.120.

(15) The most recent closure costestimate for the facility prepared inaccordance with § 264.142 plus a copy ofthe financial assurance mechanismadopted in compliance with § 264.143.

(16) Where applicable, the most recentpost-closure cost estimate for the facilityprepared in accordance with § 264.144plus a copy of the financial assurancemechanism adopted in compliance with§ 264.145.

(17) Where applicable, a copy of theinsurance policy or other documentationwhich comprises compliance with therequirements of § 264.147. For a newfacility, documentation showing theamount of insurance meeting thespecification of § 264.147(a) and, ifapplicable, § 264.147(b), that the owneror operator plans to have in effect--before initial receipt of hazardous wastefor treatment, storage, or disposal. Arequest for a variance in the amount ofrequired coverage, for a new or existingfacility, may be submitted as specifiedin § 264.147(d).

(18) Where appropriate, proof ofcoverage by a State financialmechanism in compliance with§ § 264.149 or 264.150.

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(19] A topographic map showing adistance of 1000 feet around, the. facilityat a scale of 2.5 centimeters (1 inch)equal to not more than 61.0 meters (200feet). Contours must be shown on themap.. The contour interval must besufficient to clearly show the pattern ofsurface water flow in the vicinity of andfrom each operational unit of thefacility. For example, contours with aninterval of 1.5 meters (5 feet), if relief isgreater than 6.1 meters (20 feet), or aninterval of 0.6 meters. (2 feet), if relief isless than 6.1 meters (20 feet). Ownersand operators of HWM facilities locatedin mountainous areas should use largecontour intervals to adequately showtopographic profiles of facilities. Themap shall clearly show the following;

(i) Map scale and date.(ii) 100-year floodplain area.(iii) Surface waters including

intermittant streams.(iv) Surrounding land uses

(residential, commercial, agricultural,recreational).

(v) A wind rose (i.e., prevailing wind-speed and direction)-

(vi) Orientation of the map (northarrow).

(vii) Legal boundaries of the HWMfacility site.

(viii) Access control (fences, gates).(ix) Injection and withdrawal wells

both on-site and off-site.(x) Buildings; treatment, storage, or

disposal operations; or other structure(recreation areas, runoff'controlsystems, access and internal roads,storm, sanitary, and process seweragesystems, loading and unloading areas-fire control facilities, etc.)

(xi) Barriers for drainage or floodcontrol.

(xii) Location of operational unitswithin the HWMfacility site, wherehazardous waste is (or will be) treated,stored, or disposed (include equipmentcleanup areas).

[Note.-For large HWM facilities theAgency will allow the use of other scales ona case-by-case basis.]

(20) Applicants may be required tosubmit such information as may benecessary to enable the RegionalAdministrator to carry out his dutiesunder other Federal laws as required in§ 270.3 of this part.

(c) Additional informationrequirements. The following additional.information regarding protection ofground water is required from owners oroperators of hazardous waste surfaceimpoundments, piles, land treatmentunits, and landfills except as otherwiseprovided in § 264.90(b):

(1) A summary of the ground-watermonitoring data obtained during the

interim status period under § § 265.90-265.94, where applicable.

(2) Identification of the uppermostaquifer and aquifers hydraulicallyinterconnected beneath the facilityproperty, including ground-water flowdirection and rate, and the basis forsuch identification (i.e., the informationobtained from hydrogeologicinvestigations of the facility area).

(3) On the, topographic map requiredunder paragraph (b)(19) of this section, adelineation of the waste managementarea, the property boundary, theproposed "point of compliance" asdefined under § 264.95, the proposedlocation of ground-water monitoringwells as required under § 264.97, and,, tothe extent possible, the information.required in paragraph (c)(2) of this.section.

(4] A description of any plume ofcontamination that has entered the,ground water from a regulated unit atthe time that the application wassubmitted that

(i) Delineates the extent of the plumeon the topographic map required underparagraph (b)(19) of this section;

(ii) Identifies the concentration ofeach Appendix VIII constituentthroughout the plume or identifies themaximum concentrations of eachAppendix VIII constituent in the plume.

(5) Detailed plans and an engineeringreport describing, the proposed groundwater monitoring program to beimplemented to meet the requirementsof § 264.97.

(6) If the presence of hazardousconstituents has not been detected inthe ground, water at the time of permitapplication, the owner or operator mustsubmit sufficient information, supportingdata, and analyses to establish- adetection monitoring. program whichmeets the requirements of § 264.98.. Thissubmission must address the followingitems specified under § 264.98:

(i) A proposed list of indicatorparameters, waste constituents, orreaction products that can provide areliable indication of the presence ofhazardous constituents in the groundwater;

(ii) A proposed ground-watermonitoring system;

(iii) Background values for each,proposed monitoring parameter orconstituent, or procedures to calculatesuch values; and

(iv) A description of proposedsampling, analysis and statisticalcomparison procedures to be utilized inevaluating ground-water monitoringdata.

(7) If the presence of hazardousconstituents has been detected in theground water at the point of compliance

at the time of permit application, theowner or operator must submit sufficientinformation, supporting data,. andanalyses to establish a compliancemonitoring program which meets therequirements. of § 264.99. The owner oroperator must also submit anengineering feasibility plan for acorrective action program necessary tomeet the requirements of § 264.100except as provided in § 264.98(h)(5). Todemonstrate compliance with § 264.99,the owner, or operator must address thefollowing items:

(i) A description of the wastespreviously handled at the facility;

(ii) A characterization of thecontaminated ground water, includingconcentrations of hazardousconstituents;

(iii) A list of hazardous constituentsfor which compliance monitoring will beundertaken in accordance with § 264.97and. 264.99;

(iv)' Proposed concentration limits foreach hazardous constituent, based onthe criteria set forth in § 264.94(a),including a justification for establishingany alternate concentration limits;

(v) Detailed plans and an engineeringreport describing the proposed ground-water monitoring system, in accordancewith the requirements of § 264.97; and

(vi) A description of proposedsampling, analysis and statisticalcomparison procedures to be utilized inevaluating ground-water monitoringdata.

(8) If hazardous constituents havebeen measured in the gi'ound waterwhich exceed the concentration limitsestablished under § 264.94 Table 1, or ifground water monitoring conducted atthe time of permit application under§ § 265.90=-265.94 at the waste boundaryindicates the presence of hazardousconstituents from the facility in groundwater over background concentrations,the owner or operator must submitsufficient information, supporting data,and analyses to establish a correctiveaction program which meets therequirements of §, 264.100. However, an.owner or operator is not required tosubmit information to establish acorrective action program if hedemonstrates to the RegionalAdministrator that alternateconcentration limits will protect humanhealth and the environment afterconsidering the. criteria listed in § 264.94.An owner or operator who is notrequired to establish a corrective actionprogram for this reason must insteadsubmit sufficient information toestablish a compliance monitoringprogram which meets the requirementsof § 264.99 and paragraph (c)(6) of this

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section. To demonstrate compliancewith § 264.100, the owner or operatormust address, at a minimum, thefollowing items:

(i) A characterization of thecontaminated ground water, includingconcentrations of hazardousconstituents;

(ii) The concentration limit for eachhazardous constituent found in theground water as set forth in § 264.94;

(iii) Detailed plans and an engineeringreport describing the corrective action tobe taken; and

(iv) A description of how the ground-water monitoring program willdemonstrate the adequacy of thecorrective action.

§ 270.15 Specific Part B informationrequirements for containers.

Except as otherwise provided in§ 264.1, owners or operators of facilitiesthat store containers of hazardous wastemust provide the following additionalinformation:

(a) A description of the containmentsystem to demonstrate compliance with§ 264.175. Show at least the following:

(1) Basic design parameters,dimensions, and materials ofconstruction.

(2) How the design promotes drainageor how containers are kept from contactwith standing liquids in the containmentsystem.

(3) Capacity of the containmentsystem relative to the number andvolume of containers to be stored.

(4) Provisions for preventing ormanaging run-on.

(5) How accumulated liquids can beanalyzed and removed to preventoverflow.

(b) For storage areas that storecontainers holding wastes that do notcontain free liquids, a demonstration ofcompliance with § 264.175(c), including:

(1) Test procedures and results oroth'er documentation or information toshow that the wastes do not contain freeliquids; and

(2) A description of how the storagearea is designed or operated to drainand remove liquids or how containersare kept from contact with standingliquids.

(c) Sketches, drawings, or datademonstrating compliance with§ 264.176 (location of buffer zone andcontainers holding ignitable or reactivewastes) and § 264.177(c) (location ofincompatible wastes), where applicable.

(d) Where incompatible wastes arestored or otherwise managed incontainers, a description of theprocedures used to ensure compliancewith §§ 264.177 (a) and (b), and 264.17(b) and (c).

§ 270.16 Specific Part B Informationrequirements for tanks.

Except as otherwise provided in§ 264.1, owners and operators offacilities that use tanks to store or treathazardous waste must provide adescription of design and operationprocedures which demonstratecomplaince with the requirements of§ § 264.191, 264.192, 264.198 and 264.199including: (a) References to designstandards or other available informationused (or to be used) in design andconstruction of the tank.

(b) A description of designspecifications including identification ofconstruction materials and liningmaterials (include. pertinentcharacteristics such as corrosion orerosion resistance).

(c) Tank dimensions, capacity, andshell thickness.

(d) A diagram of piping,instrumentation, and process flow.

(e) Description of feed systems, safetycutoff, bypass systems, and pressurecontrols (e.g., vents).

(f) Description of procedures forhandling incompatible ignitable, orreactive wastes, including the use ofbuffer zones.

§ 270.17 Specific Part B informationrequirements for surface impoundments.

Except as otherwise provided in§ 264.1, owners and operators offacilities that stoje, treat or dispose ofhazardous waste in surfaceimpoundments must provide thefollowing additional information:

(a) A list of the hazardous wastesplaced or to be placed in each surfaceimpoundment;

(b) Detailed plans and an engineeringreport describing how the surfaceimpoundment is or will be designed,constructed, operated and maintained tomeet the requirements of § 264.221. Thissubmission must address the followingitems as specified in § 264.221:

(1) The liner system (except for anexisting portion of a surfaceimpoundment). If an exemption from therequirement for a liner is sought asprovided by § 264.221(b), submitdetailed plans and engineering andhydrogeologic reports, as appropriate,describing alternate design andoperating practices that will, inconjunction with location aspects,prevent the migration of any hazardousconstituents into the ground water orsurface water at any future time;

(2) Prevention of overtopping; and(3) Structural integrity of dikes;(c) If any exemption from Subpart F of

Part 264 is sought, as provided by§ 264.222(a), detailed plans and anengineering report explaining the

location of the saturated zone in relationto the surface impoundment, and thedesign of a double-liner system thatincorporates a leak detection systembetween the liners;

(d) A description of how each surfaceimpoundment, including the liner and-cover systems and appurtenances forcontrol of overtopping, will be inspectedin order to meet the requirements of§ 264.226(a) and (b). This informationshould be included in the inspectionplan submitted under § 270.14(b)(5);

(e) A certification by a qualifiedengineer which attests to the structuralintegrity of each dike, as required under§ 264.226(c). For new units, the owner oroperator must submit a statement by aqualified engineer that he will providesuch a certification upon completion ofconstruction in accordance with theplans and specifications;

(f) A description of the procedure tobe used for removing a surfaceimpoundment from service, as requiredunder § 264.227(b) and (c). Thisinformation should be included in thecontingency plan submitted under§ 270.14(b)(7);

(g) A description of how hazardouswaste residues and contaminatedmaterials will be removed from the unitat closure, as required under§ 264.228(a)(1). For any wastes not to beremoved from the unit upon closure, theowner or operator must submit detailed-plans and an engineering reportdescribing how § 264.228(a)(2) and (b)will be complied with. This informationshould be included in the closure planand, where applicable, the post-closureplan submitted under § 270.14(b)(13);

(h) If ignitable or reactive wastes areto be placed in a surface impoundment,an explanation of how §'264.229 will becomplied with;

(i) If incompatible wastes, orincompatible wastes and materials willbe placed in a surface impoundment, anexplanation of how § ,264.230 will becomplied with.

§ 270.18 Specific Part B informationrequirements for waste piles.

Except as otherwise provided in§ 264.1, owners and operators offacilities that store or treat hazardouswaste in waste piles must provide thefollowing additional information:

(a) A list of hazardous wastes placedor to be placed in each waste pile;

(b) If an exemption is sought to§ 264.251, and Subpart F of Part 264 asprovided by § 264.250(c), an explanationof how the standards of § 264.250(c) willbe complied with;

(c) Detailed plans and an engineeringreport describing how the pile is or will

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Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 /.Rules and Regulations

be designed, constructed, operated andmaintained to meet the requirements of§ 264.251. This submission must addressthe following items as specified in§ 264.251:

(1) The liner system (except for anexisting portion of a pile). If anexemption from the requirement for aliner is sought, as provided by§ 264.252(b), the owner or operator mustsubmit detailed plans and engineeringand hydrogeologic reports, asapplicable, describing alternate designand operating practices that will, inconjunction with location aspects,prevent the migration of any hazardousconstituents into the ground water-or.surface water at any future time;

(2) Control of run-on;(3) Control of run-off;(4) Management of collection and

holding units associated with run-on andrun-off control systems; and

(5) Control of wind dispersal ofparticulate matter, where applicable;

(d) If an exemption from Subpart F ofPart 264 is sought as provided by§ § 264.252 or 264.253, submit detailedplans and an engineering reportdescribing how the requirements of§ § 264.252(a) or 264.253(a) will becomplied with;

(e) A description of how each wastepile, including the liner andappurtenances for control of run-on andrun-off, will be inspected in order tomeet the requirements of § 264.254 (a)and (b). This information should beincluded in the inspection plansubmitted under § 270.14(b)(5). If anexemption is sought to Subpart F of Part264 pursuant to § 264.253, describe in theinspection plan how the inspectionrequirements of § 264.253(a)(3) will becomplied with;

(f) If treatment is carried out on or inthe pile, details of the process andequipment used, and the nature andquality of the residuals;

(g) If ignitable or reactive wastes areto be placed in a waste pile, anexplanation of how-the requirements of§ 264.256 will be complied with;

(h) If incompatible wastes, orincompatible wastes and materials willbe place in a waste pile, an explanationof how § 264.257 will be complied with;

(i) A description of how hazardouswaste residues and contaminatedmaterials will be removed from.thewaste pile at closure, as required under§ 264.258(a). For any waste not to beremoved from the waste pile uponclosure, the owner or operator mustsubmit detailed plans and anengineering report describing how§ 264.310 (a) and (b) will be compliedwith. This information should beincluded in the closure plan and, where

applicable, the post-closure plansubmitted under § 270.14(b)(13).

§ 270.19 Specific Part B Informationrequirements for Incinerators.

Except as § 264.340 of this chapterprovides otherwise, owners andoperators of facilities that incineratehazardous waste must fulfill therequirements of (a), (b), or (c) of thissection.

(a) When seeking an exemption under§ 264.340 (b) or (c) of this chapter(Ignitable, corrosive, or reactive wastesonly):

(1) Documentation that the waste islisted as a hazardous waste in Part 261,Subpart D of this chapter, solelybecause it is ignitable (Hazard Code I)or corrosive (Hazard Code C) or both; or

(2) Documentation that the waste islisted as a hazardous waste in Part 261,Subpart D of this chapter, solelybecause it is reactive (Hazard Code R)for characteristics other than thoselisted in § 261.23(a) (4) and (5) of thischapter, and will not be burned whenother hazardous wastes are present inthe. combustion zone; or

(3) Documentation that the waste is ahazardous waste solely because itpossesses the characteristic ofignitability, corrosivity, or both, asdetermined by the tests forcharacteristics of hazardous wasteunder Part 261, Subpart C of thisChapter; or

(4) Documentation that the waste is ahazardous waste solely because itpossesses the reactivity characteristicslisted in § 261.23(a) (1), (2], (3), (6), (7), or(8) of this Chapter, and that it will not beburned when other hazardous wastesare present in the combustion zone; or

(b) Submit a trial burn plan or theresults of a trial burn, including allrequired determinations, in accordancewith § 270.62; or

(c) In lieu of a trial burn, the applicantmay submit the following information:

(1] An analysis of each waste ormixture of wastes to be burnedincluding:

(i) Heat value of the waste in the formand composition in which it will beburned.

(ii) Viscosity (if applicable), ordescription of physical form of thewaste.

(iii) An identification of anyhazardous organic constituents listed inPart 261, Appendix VIII, of this Chapter,which are present in the waste to beburned, except that the applicant neednot analyze for constituents listed inPart 261, Appendix VIII, of this Chapterwhich would reasonably not beexpected to be found in the waste. Theconstituents excluded from analysis

must be identified and the basis for theirexclusion stated. The waste analysis.must rely on analytical techniquesspecified in "Test methods for theevaluation of Solid Waste, Physical/Chemical Methods" (incorporated byreference, see § 270.6 and referenced in40 CFR Part 261, Appendix III), or theirequivalent.

(iv) An approximate quantification ofthe hazardous constituents identified inthe waste, within the precision producedby the analytical methods specified in"Test Methods for the Evaluation ofSolid Waste, Physical/ChemicalMethods" (incorporated by reference,see § 270.6).

(v) A quantification of thosehazardous constituents in the wastewhich may be designated as POHC'sbased on data submitted from other trialor operational burns which demonstratecompliance with the performancestandards in 264.343 of this chapter.

(2) A detailed engineering descriptionof the incinerator, including:

(i) Manufacturer's name and modelnumber of incinerator.

(ii) Type of incinerator.(iii) Linear dimension of incinerator

unit including cross sectional area ofcombustion chamber.

(iv) Decription of auxiliary fuel system(type/feed)..

(v) Capacity of prime mover.(vi) Description of automatic waste

feed cutoff system(s).(vii) Stack gas monitoring and

pollution control monitoring system.(viii) Nozzle and burner design.(ix) Construction materials.(x) Location and description of

temperature, pressure, and flowindicating devices and control devices.

(3) A description and analysis of thewaste to be burned compared with thewaste for which data from operationalor trial burns are provided to supportthe contention that a trial burn is notneeded. The data should include thoseitems listed in.paragraph (c)(1) of thissection. This analysis should specify thePOHC's which the applicant hasidenitified in the waste for which apermit is sought, and any differenecesfrom the POHC's in the waste for whichburn data are provided.

(4) The design and operatingconditions of the incinerator unit to beused, compared with that for whichcomparative burn data are available.

(5) A description of the resultssubmitted from any previouslyconducted trial burn(s) including:

(i) Sampling and analysis techniquesused to calculate performance standardsin § 264.343 of this chapter,

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(ii) Methods and results of monitoringtemperatures, waste feed rates, carbonmonoxide, and an appropriate indicatorof combustion gas velocity (including astatement concerning the precision andaccuracy of this measurement),

(6) The expected incinerator operationinformation to demonstrate compliancewith § § 264.343 and 264.345 of thischapter including:

(i) Expected carbon monoxide (CO)level in the stack exhaust gas.

(ii) Waste feed rate.(iii) Combustion zone temperature.(iv) Indication of combustion gas

velocity.(v) Expected stack gas volume, flow

rate, and temperature.(vi) Computed residence time for

waste in the combustion zone.(vii) Expected hydrochloric acid

removal efficiency.(viii) Expected fugitive emissions and

their control procedures.(ix) Proposed-waste feed cut-off limits

based on the identified significantoperating parameters.

(7) Such supplemental information asthe Director finds necessary to achievethe purposes of this paragraph.

(8) Waste analysis data, including thatsubmitted in paragraph (c)(1) of thissection, sufficient to allow the Directorto specify as permit Principal OrganicHazardous Constituents (permitPOHC's) those constituents for whichdestruction and removal efficiencies willbe required.

(d) The Director shall approve apermit application without a trial burn ifhe finds that:

(1) The wastes are sufficiently similar,and

(2) The incinerator units aresufficiently similar, and the data fromother trial burns are adequate to specify(under § 264.345 of this chapter)operating conditions that will ensurethat the performance standards in§ 264.343 of this Chapter will be met bythe incinerator.

(3) [Reserved].

§ 270.20 Specific Part B informationrequirements for landfills.

Except as otherwise provided in§ 264.1, owners and operators offacilities that use land treatment todispose of hazardous waste mustprovide the following additionalinformation:

(a) A description of plans to conduct atreatment demonstration as requiredunder § 264.272. The description mustinclude the following information;

(1) The wastes for which thedemonstration will be made and thepotential hazardous constituents in thewaste;

(2) The data sources to be used tomake the demonstration (e.g., literature,laboratory data, field data, or operatingdata);

(3) Any specific laboratory or fieldtest that will be conducted, including:

(i) The type of test (e.g., columnleaching, degradation);

(ii) Materials and methods, includinganalytical procedures;

(iii) Expected time for completion;(iv) Characteristics of the unit that

will be simulated in the demonstration,including treatment zone characteristics,climatic conditions, and operatingpractices.

(b) A description of a land treatmentprogram, as required under § 264.271.This information must be submitted withthe plans for the treatmentdemonstration, and updated followingthe treatment demonstration. The landtreatment program must address thefollowing items:

(1) The wastes to be land treated;(2) Design measures and operating

practices necessary to maximizetreatment in accordance with§ 264.273(a) including:

(i) Waste application method and rate;(ii) Measures to control soil pH;(iii) Enhancement of microbial or

chemical reactions;(iv) Control of moisture content;(3) Provisions for unsaturated zone

monitoring, including:(i) Sampling equipment, procedures,

and frequency;(ii) Procedures for selecting sampling

locations;(iii) Analytical procedures;(iv) Chain of custody control;(v) Procedures for establishing

background values;(vi) Statistical methods for

interpreting results;(vii) The justification for any

hazardous constituents recommendedfor selection as principal hazardousconstituents, in accordance with thecriteria for such selection in § 264.278(a);

(4) A list of hazardous constituentsreasonably expected to be in, or derivedfrom, the wastes to be land treatedbased on waste analysis performedpursuant to § 264.13;

(5) The proposed dimensions of thetreatment zone;

(c) A description of how the unit is orwill be designed, constructed, operated,and maintained in order to meet therequirements of § 264.273. Thissubmission must address the followingitems:

(1) Control of run-on;(2) Collection and control of run-off.(3) Minimization of run-off of

hazardous constituents from thetreatment zone;

(4) Management of collection andholding facilities associated with run-onand run-off control systems;

(5) Periodic inspection of the unit. Thisinformation should be included in theinspection plan submitted under§ 270.14(b)(5);

(6) Control of wind dispersal ofparticulate matter, if applicable;

(d) If food-chain crops are to be grownin or on the treatment zone of the landtreatment unit, a description of how thedemonstration required under§ 264.276(a) will be conducted including:

(1) Characteristics of the food-chaincrop for which the demonstration will bemade.

(2) Characteristics of the waste,treatment zone, and waste applicationmethod and rate to be used in thedemonstration;

(3) Procedures for crop growth, samplecollection, sample analysis, and dataevaluation;

(4) Characteristics of the comparisoncrop including the location andconditions under which it was or will begrown;

(5) If food-chain crops are to begrown, and cadmium is present in theland-treated waste, a description of howthe requirements of § 264.276(b) will becomplied with;

(6) A description of the vegetativecover to be applied to closed portions ofthe-facility, and a plan for maintainingsuch cover during the post-closure careperiod, as required under § 264.280(a)(8)and § 264.280(c)(2). This informationshould be included in the closure planand, where applicable, the post-closurecare plan submitted under§ 270.14(b)(13);

(7) If ignitable or reactive wastes willbe placed in or on the treatment zone,an explanation of how the requirementsof § 264.281 will be complied with;

(8) If incompatible wastes, orincompatible wastes and materials, willbe placed in or on the same treatmentzone, an explanation of how § 264.282will be complied with.

§ 270.21 Specific Part B Informationrequirements for land treatment facilities.

Except as otherwise provided in§ 264.1, owners and operators offacilities that dispose of hazardouswaste in landfills must provide thefollowing additional information:

(a) A list of the hazardous wastesplaced or to be placed in each landfill orlandfill cell;

(b) Detailed plans and an engineeringreport describing how the landfill is orwill be designed, constructed, operatedand maintained to comply with therequirements of § 264.301. This

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submission must address the followingitems as specified in § 264.301:

(1) The liner system and leachatecollection and removal system (exceptfor an existing portion of a landfill). If anexemption from the requirements for aliner and a leachate collection andremoval system is sought as provided by§ 264.301(b), submit detailed plans andengineering and hydrogeologic reports,as appropriate, describing alternatedesign and operating practices that will,in conjunction with location aspects,prevent the migration of any hazardousconstituent into the ground water orsurface water at any future time;

(2) Control of run-on;(3) Control of run-off:(4) Management of collection and

holding facilities associated with run-onand run-off control systems; and

(5) Control of wind dispersal ofparticulate matter, where applicable;

(c) If an exemption from Subpart F ofPart 264 is sought, as provided by§ 264.302(a), the owner or operator mustsubmit detailed plans and anengineering report explaining thelocation of the saturated zone in relationto the landfill, the design of a double-liner system that incorporates a leakdetection system between the liners,and a leachate collection and. removalsystem above the liners;

(d) A description of how each landfill,including the liner and cover systems,will be inspected in order to meet therequirements of § 264.303 (a) and (b).This information should be included inthe inspection plan submitted under§ 270.14(b)(5).

(e) Detailed plans and an engineeringreport describing the final cover whichwill be applied to each landfill orlandfill cell at closure in accordancewith § 264.310(a), and a description ofhow each landfill will be maintainedand monitored after closure inaccordance with § 264.310(b). Thisinformation should be included in theclosure and post-closure planssubmitted under § 270.14(b)(13).

(f) If ignitable or reactive Wastes willbe landfilled, an explanation of how thestandards of § 264.312 will be compliedwith;

(g) If incompatible wastes, orincompatible wastes and materials willbe landfilled, an explanation of how§ 264.313 will be complied with;

(h) If bulk or non-containerized liquidwaste or wastes containing free liquidsis to be landfilled, an explanation ofhow the requirements of § 264.314 willbe complied with;

(i) If containers of hazardous wasteare to be landfilled, an explanation ofhow the requirements of § 264.315 or

§ 264.316, as applicable, will becomplied with.,

§§ 270.22-270.29 [Reserved]

Subpart C-Permit Conditions

§ 270.30 Conditions applicable to allpermits.

The following conditions apply to allRCRA permits, and shall beincorporated into the permits eitherexpressly or by reference. Ifincorporated by reference, a specificcitation to these regulations (or thecorresponding approved Stateregulations) must be given in the permit.

(a) Duty to comply. The permitteemust comply with all conditions of thispermit, except that the permittee neednot comply with the conditions of thispermit to the extent and for the durationsuch noncompliance is authorized in anemergency permit. (See § 270.61). Anypermit noncompliance, except under the,terms of an emergency permit,constitutes a violation of the appropriateAct and is grounds for enforcementaction; for permit termination,revocation and reissuance, ormodification; or for denial of a permitrenewal application.


(c) Need to halt or reduce activity nota defense. It shall not be a defense for apermittee in an enforcement action thatit would have been necessary to halt orreduce the permitted activity in order tomaintain compliance with the conditionsof this permit.


(e) Proper operation and maintenance.The permittee shall at all times properlyoperate and maintain all facilities andsystems of treatment and control (andrelated appurtenances) which areinstalled or used by the permittee toachieve compliance with the conditionsof this permit. Proper operation andmaintenance includes effectiveperformance, adequate funding,adequate operator staffing and training,and adequate laboratory and processcontrols, including appropriate qualityassurance procedures. This provisionrequires the opration of back-up orauxiliary facilities or similar systemsonly when necessary to achievecompliance with the conditions of thepermit.

(f) Permit actions. This permit may bemodified, revoked and reissued, or

terminated for cause. The filing of arequest by the permittee for a permitmodification, revocation and reissuance,or termination, or a notification ofplanned changes or anticipatednoncompliance, does not stay anypermit condition.

(g) Property rights. The permit doesnot convey any property rights of anysort, or any exclusive privilege.

(h) Duty to provide information. Thepermittee shall furnish to the Director,within a reasonable time, any relevantinformation which the Director mayrequest to determine whether causeexists for modifying, revoking andreissuing, or terminating this permit, orto determine compliance with thispermit. The permittee shall also furnishto the Director, upon request, copies ofrecords required to be kept by thispermit.

(i) Inspection and entry. The permitteeshall allow the Director, or anauthorized representative, upon thepresentation of credentials and otherdocuments as may be required by lawto:

(1) Enter at reasonable times upon thepermittee's premises where a regulatedfacility or activity is located orconducted, or where records must bekept under the conditions of this permit;

(2] Have access to and copy, atreasonable times, any records that mustbe kept und&r the conditions of thispermit;

(3) Inspect at reasonable times anyfacilities, equipment (includingmonitoring and control equipment),practices, or operations regulated orrequiredunder this permit; and

(4) Sample or monitor at reasonabletimes, for the purposes of assuringpermit compliance or as otherwiseauthorized by RCRA, any substances orparameters at any location.

(j) Monitoring and records. (1)Samples and measurements taken forthe purpose of monitoring shall berepresentative of the monitored activity.

(2) The permittee shall retain recordsof all monitoring information, includingall calibration and maintenance recordsand all original strip chart recordings forcontinuous monitoring instrumentation,copies of all reports required by thispermit, and records of all data used tocomplete the application for this permit,for a period of at least 3 years from thedate of the sample, measurement, reportor application. This period may beextended by request of the Director.atany time. The permittee shall maintainrecords of all ground-water quality andground-water surface elevations, for theactive life of the facility, and for thepost-closure care period as well.

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(3) Records for monitoring informationshall include:






(vi) The results of such analyses.(k) Signatory requirements. All

applications, reports, or informationsubmitted to the Director shall be signedand certified (See § 270.11.)

(1) Reporting requirements. (1)Planned changes. The permittee shallgive notice to the Director as soon aspossible of any planned physicalalterations or additions to the permittedfacility.

(2) Anticipated noncompliance. Thepermittee shall give advance notice tothe Director of any planned changes inthe permitted facility or activity whichmay result in noncompliance withpermit requirements. For a new facility,the permittee may not treat, store, ordispose of hazardous waste; and for afacility being modified, the permitteemay not treat, store, or dispose ofhazardous waste in the modified portionof the facility, until:

(i) The permittee has submitted to theDirector by certified mail or handdelivery a letter signed by the permitteeand a registered professional engineerstating that the facility has beenconstructed or modified in compliancewith the permit; and

(ii](A) The Director has inspected themodified or newly constructed facilityand finds it is in compliance with theconditions of the permit; or

(B) Within 15 days of the date ofsubmission of the letter in paragraph(c)(1) of this section, the permittee hasnot received notice from the Director ofhis or her intent to inspect, priorinspection is waived and the permitteemay commence treatment, storage, ordisposal of hazardous waste.

(3) Transfers. This permit is nottransferable to any person exibept afternotice to the Director. The Director mayrequire.modification or revocation andreissuance of the permit to change thename of the permittee and incorporatesuch other requirements as may benecessary under RCRA. (See § 270.40)


(5) Compliance schedules. Reports ofcompliance or noncompliance with, orany progress reports on, interim andfinal requirements contained in any

compliance schedule of this permit shallbe submitted no later than 14 daysfollowing each schedule date.

(6) Twenty-four hour reporting. (i) Thepermittee shall report anynoncompliance which may endangerhealth or the environment orally within24 hours from the time the permitteebecomes aware of the circumstances,including:

(A) Information concerning release ofany hazardous waste that may cause anendangerment to public drinking watersupplies.

(B) Any information of a release ordischarge of hazardous waste or of a fireor explosion from the HWM facility,which could threaten the environment orhuman health outside the facility.

(ii) The description ofthe occurrenceand its cause shall include:(A) Name, address, and telephonenumber of the owner or operator;

(B) Name, address, and telephonenumber of the facility;

(C) Date, time, and type of incident;(D) Name and quantity of material(s)

involved;(E) The extent of injuries, if any;(F) An assessment of actual or

potential hazards to the environmentand-human health outside the facility,where this is applicable; and

(G) Estimated quantity anddisposition ofrecovered material thatresulted from the incident.

(iii) A written submission shall alsobe provided within 5 days of the timethe permittee becomes aware of thecircumstances. The written submissionshall contain a description of thenoncompliance and its cause; the periodof noncompliance including exact datesand times, and if the noncompliance hasnot been corrected, the anticipated timeit is expected to continue; and stepstaken or planned to reduce, eliminate,and prevent reoccurrence of thenoncompliance. The Director may waivethe five day written notice requirementin favor of a written report within fifteendays.

(7) Manifest discrepancy report: If asignificant discrepancy in a manifest isdiscovered, the permittee must attemptto reconcile the discrepancy. If notresolved within fifteen days, thepermittee must submit a letter report,including a copy of the manifest, to theDirector. (See 40 CFR 264.72.)

(8) Unmanifested waste report: Thisreport must be submitted to the Directorwithin 15 days of receipt ofunmanifested waste. (See 40 CFR§ 264.76)

(9) Biennial report. A biennial reportmust be submitted covering facilityactivities during odd numbered calendaryears. (See 40 CFR 264.75.)

(10) Other noncompliance. Thepermittee shall report all instances ofnoncompliance not reported underparagraphs (L)(4), (5), and (6) of thissection, at the time monitoring reportsare submitted. The reports shall containthe information listed in paragraph (1)(6)of this section.

(11) Other information. Where thepermittee becomes aware that it failedto submit any relevant facts in a permitapplication, or submitted incorrectinformation in a permit application or inany report to the'Director, it shallpromptly submit such- facts orinformation.§ 270.31 Requirements for recording andreporting of monitoring results.



(b) Required monitoring includingtype, intervals, and frequency sufficientto yield data which are representative ofthe monitored activity including, whenappropriate, continuous monitoring;

(c) Applicable reporting requirementsbased upon the impact of the regulatedactivity and as specified in Parts 264,266 and 267. Reporting shall be no lessfrequent than specified in the aboveregulations.

§ 270.32 Establishing permit conditions.(a) In addition to conditions required

in all permits (§ 270.30), the Directorshall establish conditions, as requiredon a case-by-case basis, in permitsunder § § 270.50 (duration of permits),270.33(a) (schedules of compliance),270.31 (monitoring), and for EPA issuedpermits only, 270.33(b) (alternateschedules of compliance) and 270.3(considerations under Federal law).

(b) Each RCRA permit shall includepermit conditions necessary to achievecompliance with the Act andregulations, including each of theapplicable requirements specified in 40CFR Parts 264, 266, and 267. In satisfyingthis provision, the Director mayincorporate applicable requirements of40 CFR Parts 264, 266, and 267 directlyinto the permit or establish other permitconditions that are based on these parts.

(c) For a State issued permit, anapplicable requirement is a Statestatutory or regulatory requirementwhich takes effect prior to finaladministrative disposition of a permit.For a permit issued by EPA, anapplicable requirement is a statutory orregulatory requirement (including any

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Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983 / Rules and Regulations1

interim final regulation] which takeseffect prior to the issuance of the permit(except as provided in § 124.86(c) forRCRA permits being processed underSubparts E or F of Part 124. Section124.14 (reopening of'comment period)provides a means for reopening EPApermit proceedings at the discretion ofthe Director where new requirementsbecome effective during the permittingprocess and are, of sufficient magnitudeto make additional proceedingsdesirable. For State and EPAadministered programs, an applicablerequirement is also, any requirementwhich takes effect prior to themodification or revocation andreissuance of a permit, to the extentallowed in §270.41.

(d) New or reissued permits; and tothe extent allowed under § 270.41,modified orrevoked and reissuedpermits, shall incorporate each of theapplicable requirements referenced inthis section and in 40 CFR 270.31.

(e) Incorporation. All- permitconditions shall be incorporated eitherexpressly or by reference. Ifincorporated by reference, a specificcitation to the applicable regulations orrequirements must be given in thepermit.

§270.33 Schedules of compliance.(a) The permit may, when appropriate,

specify a schedule of complianceleading to compliance with the Act andregulations.

(1) Time for compliance. Anyschedules of compliance under thissection shall require compliance as soonas possible.

(2) Interim dates. Except as providedin paragraph (b)(1}(ii) of this section, if apermit establishes a schedule ofcompliance which exceeds 1 year fromthe date of permit issuance, the scheduleshall set forth interim requirements andthe dates for their achievement.(i) The time between interim datesshall not exceed 1 year.

(ii) If the time necessary forcompletion of any interim requirement is.more than 1 year and is not readilydivisible into stages for completion, thepermit shall specify interim dates for thesubmission of reports of progresstoward completion of the interimrequirements and indicate a projectedcompletion date.

'(3) Reporting. The permit shall bewritten to require that no. later than 14days following each interim date andthe final date of compliance, thepermittee shall notify the director inwriting, of its compliance ornoncompliance with the interim or finalrequirements, or submit progress reports

if paragraph (a)(2](ii) of this section isapplicable.

(b) Alternative schedules ofcompliance. A RCRA.permit applicantor permittee, may cease conductingregulated activities (by receiving a-terminal volume of hazardous waste)and for treatmetit and storage HWMfacilities, closing pursuant to applicablerequirements; and for disposal HWMfacilities, closing and conducting post-closure care pursuant to applicablerequirements, rather than continue tooperate and meet permit requirementsas follows:

(1], If the permittee decides to ceaseconducting regulated activities at agiven time within' the term of a permitwhich has already been issued:


(ii) The permittee shall ceaseconducting permitted activities beforenoncompliance with any interim or finalcompliance schedule requirementalready specified in the permit.

(2) If the decision to cease conductingregulated activities is made beforeissuance of a permit whose term willinclude the termination date, the permitshall contain a schedule leading totermination which will ensure timelycompliance with applicable'requirements.

(3) If the permittee is undecidedwhether to cease. conducting- regulatedactivities, the Directof may issue ormodify a permit to contain twoschedules as follows:

(i) Both schedules shall contain anidentical interim deadline requiring afinal decision on whether to ceaseconducting regulated activities no laterthan a date which ensures sufficienttime to comply with applicable.requirements in a timely manner if thedecision is to continue conductingregulated activities;

(ii) One schedule shall lead. to timelycompliance with applicablerequirements;

(iii) The second schedule shall lead tocessation of regulated activities by adate which will ensure timelycompliance with applicablerequirements;

(iv) Each permit containing twoschedules shall include a requirementthat after the permittee has made finaldecision under paragraph (b)(3)(i) of thissection it shall follow the scheduleleading to compliance if the decision isto continue conducting regulatedactivities, and follow the scheduleleading to termination if the decision isto cease conducting regulated activities.

(4) The applicant's or permittee'sdecision to cease conducting regulatedactivities shall be evidenced by a firmpublic commitment satisfactory to theDirector, such as resolution of the boardof directors of a corporation.

§§270.34-270.39 [Reserved].

Subpart D-Changes to permit

§ 270.40, Transfer of permits.Transfers bymodification. A permit

may be transferred by the permittee to anew owner or operator only if the permithas been modified or revoked andreissued (under § 270.41(b)(2)), or aminor modification made (under§ 270.42(d)), to identify the newpermittee and incorporate such otherrequirements as may be necessaryunder the appropriate Act.

§ 270.41 Major modification or revocationand reissuance of permits.

When the Director receives anyinformation (for example, inspects thefacility, receives information submittedby the permittee as required in thepermit (see § 270.30)), receives a request

,for modification or revocation and-reissuance under § 124.5, or conducts areview of the permit file] he or she maydetermine whether or not one or more ofthe causes listed in paragraphs (a) and(b) of this section for modification, orrevocation and reissuance or both exist.If cause exists, the Director may modifyor revoke and reissue the permitaccordingly, subject to the limitations ofparagraphs (c) of this section, and may,request an updated application- ifnecessary. When a permit is modified,only the conditions subject tomodification are reopened. If a permit isrevoked and reissued, the entire permitis reopened and subject to revision andthe permit is reissued for a new term.See 40 CFR 124.5(c)(2), If cause does notexist under this section or 40 CFR 270.42,the Director shall not modify or revokeand reissue the permit. If a permitmodification satisfies the criteria in 40CFR 270.42 for a minor modification, thepermit may be modified without a draftpermit or public review. Otherwise, adraft permit must be prepared and otherprocedures in Part 124 (or procedures ofan approved State program] followed.

(a] Causes for modification. Thefollowingare causes for modification,but not revocation and reissuance, ofpermits; the following may be causes forrevocation and reissuance, as well asmodification, when the permitteerequests or agrees.

(1) Alterations. There are material andsubstantial alterations or additions tothe permitted facility or activity which

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occurred after permit issuance whichjustify the application of permitconditions that are different -or absent inthe existing permit.

(2) Information. The Director hasreceived information. Permits may bemodified during their terms for thiscause only if the information was notavailable at the time of permit issuance(other than revised regulations,guidance, or test methods) and wouldhave justified the application ofdifferent permit conditions at the time ofissuance.

(3) New regulations. The standards orregulations on which the permit wasbased have been changed bypromulgation of amended standards orregulations or by judicial decision afterthe permit was issued. Permits may bemodified during their terms for thiscause only as follows:


(A) The permit condition requested tobe modified was based on apromulgated Parts 260-266 regulation;and

(B) EPA has revised, withdrawn, ormodified that portion of the regulationon which the permit condition wasbased; and

(C) A permittee requests modificationin accordance with § 124.5 within ninety(90] days after Federal Register notice ofthe action on which the request is based.

(ii) For judicial decisions, a court ofcompetent jurisdiction has remandedand stayed EPA promulgatedregulations if the remand and stayconcern that portion of the regulationson which the permit condition wasbased and a request is filed by thepermittee in accordance with § 124.5within ninety (90) days of judicialremand.

(4) Compliance schedules. TheDirector determines good cause existsfor modification of a complianceschedule, such as an act of God, strike,flood, or materials shortage or otherevents over which the permittee haslittle or no control and for which there isno reasonably available remedy.

(5) The Director may also modify apermit:

(i) When modification of a closureplan is required under § § 264.112(b) or264.118(b).

(ii) After the Director receives thenotification of expected closure under§ 264.113, when the'Director determinesthat extension of the 90 to 180 dayperiods under § 264.113, modification ofthe 30-year post-closure period under§ 264.117(a), continuation of securityrequirements under § 264.117(b), orpermission to disturb the integrity of the

containment system under § 264.117(c)are unwarranted.

(iii) When the permittee has filed arequest under § 264.147(d) for a varianceto the level of financial responsibility orwhen the Director demonstrates under§ 264.147(c) that an upward adjustmentof the level of financial responsibility isrequired.

fiv) When the corrective actionprogram specified in the permit under§ 264.100 has not brought the regulatedunit into compliance with the ground-water protection standard within areasonable period of time.

(v) To include a detection monitoringprogram meeting the requirements of§ 264.98, when the owner or operatorhas been conducting a compliancemonitoring program under § 264.99 or acorrective action program under§ 264.100 and compliance period endsbefore the end of the post-closure careperiod for the unit.

(vi) When a permit requires acompliance monitoring program under§ 264.99, but monitoring data collectedprior to permit issuance indicate that thefacility is exceeding the ground-waterprotection standard.

(vii) To include conditions applicableto units at a facility that were notpreviously included in the facility'spermit.

(viii) When a land treatment unit isnot achieving complete treatment ofhazardous constituents under its currentpermit conditions. •



(2) The Director has receivednotification (as required in the permit,see § 270.30(L)(3)) of a proposed transferof the permit.

(c) Facility siting. Suitability of thefacility location will not be consideredat the time of permit modification orrevocation .and reissuance unless newinformation or standards indicate that athreat to human health or theenvironmental exists which wasunknown at the time of permit issuance.


Director may modify a permit to makethe corrections or allowances forchanges in the permitted activity listedin this section, without following theprocedures of Part 124. Any permitmodification not processed as a minormodification under this section must be

made for cause and with Part 124 draftpermit and public notice as required in§ 270.41. Minor modifications may only:



in a schedule of compliance, providedthe new date is not more than 120 daysafter the date specified in the existingpermit and does not interfere withattainment of the final compliance daterequirement;

(d) Allow for a change in ownershipor operational control of a facility wherethe Director determines that no otherchange in the permit is necessary,provided that a written agreementcontaining a specific date for transfer ofpermit responsibility, coverage, andliability between the current and newpermittees has been submitted to theDirector;

(e) Change the lists of facilityemergency coordinators or equipment inthe permit's contingency plan;

(f) Change estimates of maximuminventory under § 264.112(a)(2);

(g) Change estimates of expected yearof closure orschedules for final closureunder § 264.112(a)(4);

(h) Approve periods longer than 90days or 180 days under § 264.113 (a) and(b);

[i) Change the ranges of the operatingrequirements set in the permit to reflectthe results of the trial burn, providedthat the change is minor;

(j) Change the operating requirementsset in the permit for conducting a trialburn, provided that the change is minor;

(k) Grant one extension of the timeperiod for determining operationalreadiness following completion ofconstruction, for up to 720 hoursoperating time for treatment ofhazardous waste:

(1) Change the treatment programrequirements for land treatment unitsunder § 264.271 to improve treatment ofhazardous constituents, provided thatthe change is minor;

(in) Change any conditions specifiedin the permit for land treatment units toreflect the results of field tests orlaboratory analyses used in making atreatment demonstration in accordancewith § 270.63, provided that the changeis minor; and

(n) Allow a second treatmentdemonstration for land treatment to beconducted when the results of the firstdemonstration have not shown theconditions under which the waste orwastes can be treated completely asrequired by § 264.272(a), provided thatthe conditions for the seconddemonstration are substantially the

I

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same as the conditions for the firstdemonstration.

§ 270.43 Termination of permits.(a) The following are causes for

terminating a permit during its term, orfor denying a permit renewalapplication:

(1) Noncompliance by the permitteewith any condition of the permit;


(3) A determination that the permittedactivity endangers human health or theenvironment and can only be regulatedto acceptable levels by permitmodification or termination.

(b) The Director shall follow theapplicable procedures in Part 124 orState procedures in terminating anypermit under this section.

§§ 270.44-270.49 [Reserved.]

Subpart E-Expiration andcontinuation of permits

§ 270.50 Duration of permits.(a) RCRA permits shall be effective

for a fixed term not to exceed 10 years.(b) Except as provided in § 270.51, the

term of a permit shall not be extendedby modification beyond the maximumduration specified in this section.


§ 270.51 Continuation of expiring permits.(a) EPA permits. When EPA is the

permit-issuing authority, the conditionsof an expired permit continue in forceunder 5 U.S.C. 558(c) until the effectivedate of a new permit (see § 124.15j if:

(1) The permittee has submitted atimely application under § 270.14 andthe applicable sections in § § 270.15-270.29 which is a complete (under§ 270.10(c)) application for a new permit;and

(2) The Regional Administratorthrough no fault of the permittee, doesnot issue a new permit with an effectivedate under § 124.15 on or before theexpiration date of the previous permit(for example, when issuance isimpracticable due to time or resourceconstraintsl.

(b) Effect. Permits continued underthis section remain fully effective andenforceable.

(c) Enforcement. When the perniitteeis not in compliance with the conditionsof the expiring or expired permit, theRegional Administrator may choose todo any or all of the following:


(2) Issue a notice of intent to deny thenew permit under § 124.6. If the permit isdenied, the owner or operator wouldthen be required to cease the activitiesauthorized by the continued permit or besubject to enforcement action foroperating without a permit;



(d) State continuation. An EPA issuedpermit does not continue in forcebeyond its expiration date underFederal law if at thattime a State is thepermitting authority. States authorizedto administer the RCRA program maycontinue either EPA orState-issuedpermits until the effective date of thenew permits, if State law allows.Otherwise, the facility is operatingwithout a permit from the time ofexpiration of the old permit to theeffective date of the State-issued newpermit.

§§ 270.52-270.59 [Reserved].

Subpart F-Special forms of permits

§ 270.60 Permits by rule.Notwithstanding any other provision

of this Part or Part 124, the followingshall be deemed to have a RCRA permitif the conditions listed are met.

(a) Ocean disposal barges or vessels.The owner or operator of a barge orother vessel which accepts hazardouswaste for ocean disposal, if the owner oroperator:

(1) Has a permit-for ocean dumpingissued under 40 CFR Part 220 (OceanDumping, authorized by the MarineProtection, Research, and SanctuariesAct, as amended, 33 U.S.C. 1420 etseq.);

(2) Complies with the. conditions ofthat permit; and

(3) Complies with the followinghazardous waste regulations:.(i) 40 CFR 264.11, Identification

number;(ii) 40 CFR 264.71, Use of manifest

system:(iii) 40 CFR 264.72, Manifest

discrepancies;(iv) 40 CFR 264.73(a) and (b)(1),

Operating record;(v) 40 CFR 264.75, Biennial report; and(vi) 40 CFR 264.76, Unmanifested

waste report.(b) Injection wells. The owner or.

operator of an injection well disposingof hazardous waste, if the owner oroperator:

(1) Has a permit for undergroundinjection issued under Part 144 or 145;and

(2) Complies with the conditions ofthat permit and the requirements of§ 144.14 (requirements for wells -managing hazardous waste).

(c) Publicly owned treatment works.The owner or operator of a POTWwhich accepts for treatment hazardouswaste, if the owner or operator:

(1) Has an NPDES permit;(2) Complies with the conditions of

that permit; and(3) Complies with the following

regulations:(i) 40 CFR 264.11, Identification

number;(ii) 40 CFR 264.71, Use of manifest

system;(iii) 40 CFR 264.72, Manifest

discrepancies;(iv) 40 CFR 264.73(a) and (b)(1),

Operating record;(v] 40 CFR 264.75, Biennial report;(vi),40 CFR 264.76, Unmanifested

waste report; and(4) If the waste meets all Federal,

State, and local pretreatmentrequirements which would be applicableto the waste if it were being dischargedinto the POTW through a sewer, pipe, orsimilar conveyance.

§ 270.61 Emergency permits.(a) Notwithstanding any other

provision of this part or Part 124, in theevent the Director finds an imminentand substantial endangerment to humanhealth or the environment the Diiectormay issue a temporary emergencypermit for a facility to allow treatment,storage, or disposal, of hazardous wastefor a non-permitted facility or notcovered by the permit for a facility withan effective permit.

(b) This emergency permit:(1) May be oral or written. If oral, it

shall be followed in five days by awritten emergency permit;, (2) Shall not exceed 90 days in

duration;(3) Shall clearly specify the hazardous

wastes to be received, and the mannerand location of their treatment, storage,or disposal;

(4) May be terminated by the Directorat any time without process if he or she .determines that termination isappropriate to protect human health andthe environment;

(5) Shall be accompanied by a publicnotice published under § 124.11(b)including:

(i) Name and address of the officegranting the emergency authorization;

(ii) Name and location of thepermitted HWM facility;

(iii) A brief description of the wastesinvolved;

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(iv) A brief description of the actionauthorized and reasons for authorizingit; and

(v) Duration of the emergency permit;and

(6) Shall incorporate, to the extentpossible and not inconsistent with theemergency situation, all applicablerequirements of this part and 40 CFRParts 264 and 266.

§ 270.62 Hazardous waste Incineratorpermits.

(a) For the purposes of determiningoperational readiness followingcompletion of physical construction, theDirector must establish permitconditions, including but not limited toallowable waste feeds and operatingconditions, in the permit to a newhazardous waste incinerator. Thesepermit conditions will be effective forthe minimum time required to bring theincinerator to a point of operationalreadiness to conduct a trial burn, not toexceed 720 hours operating time fortreatment of hazardous waste. TheDirector may extend the duration of thisoperational period once, for up to 720additional hours, at the request of theapplicant when good cause is shown.The permit may be modified to reflectthe extension according to § 270.42(Minor modifications of permits) of thisChapter.

(1) Applicants must submit astatement, with part B of the permitapplication, which suggests theconditions necessary to operate incompliance with the performancestandards of § 264.343 of this Chapterduring this period. This statementshould include, at a minimum,restrictions on waste constituents, wastefeed rates and the operating parametersidentified in § 264.345 of this Chapter.

(2) The Director will review this'statement and any other relevantinformation submitted with Part B of thepermit application and specifyrequirements for this period sufficient tomeet the performance standards of§ 264.343 of this Chapter based on hisengineering judgment.

(b) For the purposes of determiningfeasibility of compliance with theperformance standards of § 24.343 ofthis Chapter and of determiningadequate operating conditions under§ 264.345 of this Chapter, the Directormust establish conditions in the permitfor a new hazardous waste incineratorto be effective during the trial burn.

(1) Applicants must propose a trialburn plan, prepared under paragraph(b)(2) of this section with a Part B of thepermit application.

(2) The trial burn plan must includethe following information:

(i) An analysis of each waste ormixture of wastes to be burned whichincludes:

(A) Heat value of the waste in the.form and composition in which it will beburned.

(B) Viscosity (if applicable), ordescription of the physical form of thewaste.

(C) An identification of any hazardousorganic constituents listed in Part 261,Appendix VIII of this Chapter, whichare present in the waste to be burned,except that the applicant need notanalyze for constituents listed in Part261, Appendix VIII, of this Chapterwhich would reasonably not beexpected to be found in the waste. Theconstituents excluded from analysismust be identified, and the basis for theexclusion stated. The waste analysismust rely on analytical techniquesspecified in "Test Methods for theEvaluation of Solid Waste, Physical/Chemical Methods" (incorporated byreference, see § 270.6), or otherequivalent.

(D) An approximate quantification ofthe hazardous constituents identified inthe waste, within the precision producedby the analytical methods specified in"Test Methods for the Evaluation ofSolid Waste, Physical/ChemicalMethods," (incorporated by reference,see § 270.6), or their equivalent.

(ii) A detailed engineering descriptionof the incinerator for which the permit issought including:

(A) Manufacturer's name and modelnumber of incinerator (if available).

(B) Type of incinerator.(C) Linear dimensions of the

incinerator unit including the crosssectional area of combustion chamber.

(D) Description of the auxiliary fuelsystem (type/feed).

(E) Capacity of prime mover.(F) Description of automatic waste

feed cut-off system(s).(G) Stack gas monitoring and pollution

control equipment.(H) Nozzle and burner design.(I) Construction materials.(J) Location and description of

temperature, pressure, and flowindicating and control devices.

(iii) A detailed description of samplingand monitoring procedures, includingsampling and monitoring locations in thesystem, the equipment to be used,sampling and monitoring frequency, andplanned analytical procedures forsample.analysis.

(iv) A detailed test schedule for eachwaste for which the trial burn is plannedincluding date(s), duration, quantity ofwaste to be burned, and other factorsrelevant to the Director's decision underparagraph (b)(5) of this section.

(v) A detailed test protocol, including,for each waste identified, the ranges oftemperature, waste feed rate,combustion gas velocity, use of auxiliaryfuel, and any other relevant parametersthat will be varied to affect thedestruction and removal efficiency ofthe incinerator.

(vi) A description of, and plannedoperating conditions for, any emissioncontrol equipment which will be used.

(vii) Procedures for rapidly stoppingwaste feed, shutting down theincinerator, and controlling emissions inthe event of an equipment malfunction.

(viii) Such other information as theDirector reasonably finds necessary todetermine whether to approve the trialburn plan in light of the purposes of thisparagraph and the criteria in paragraph(b)(5) of this section.

(3) The Director, in reviewing the trialburn plan, shall evaluate the sufficiencyof the information provided and mayrequire the applicant to supplement thisinformation, if necessary, to achieve thepurposes of this paragraph.

(4) Based on the waste analysis datain the trial bum plan, the Director willspecify as trial Principal OrganicHazardous Constituents (POHCs), thoseconstituents for which destruction andremoval efficiencies must be calculatedduring the trial burn. These trial POHCswill be specified by the Director basedon his estimate of the difficulty ofincineration of the constituentsidentified in the waste analysis, theirconcentration or mass in the waste feed,and, for wastes listed in Part 261,Subpart D, of this Chapter, thehazardous waste organic constituent orconstituents identified in Appendix VII

.of that Part as the basis for listing.(5) The Director shall approve a trial

burn plan if he finds that:(i) The trial burn is likely to determine

whether the incinerator performancestandard required by § 264.343 of thisChapter ban be met;

(ii) The trial burn itself will notpresent an imminent hazard to humanhealth or the environment;

(iii) The trial burn will help theDirector to determine operatingrequirements to be specified under§ 264.345 of this Chapter; and

(iv) The information sought inparagraphs (b)(5) (i) and (ii) of thisSection cannot reasonably be developedthrough other means.

(6) During each approved trial burn (oras soon after the burn as is practicable),the applicant must make the followingdeterminations:

(i) A quantitative analysis of the trialPOHCs in the waste feed to theincinerator.

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(ii) A quantitative analysis of theexhaust gas for the concentration andmass emissions of the trial POHCs,oxygen (0 2)and hydrogen chloride(HC1).

(iii) A quantitative analysis of thescrubber water (if any), ash residues,and other residues, for the purpose ofestimating the fate of the trial POHCs.

(iv) A computation of destruction andremoval efficiency (DRE), in accordancewith the DRE formula specified in§ 264.343(a) of this Chapter.

(v) If the HCI emission rate exceeds1.8 kilograms of HCl per hour (4 poundsper hour), a computation of HCI removalefficiency in accordance with 264.343(b)of this Chapter.

(vi) A computation of particulateemissions, in accordance with§ 264.343(c) of this Chapter.

(vii) An identification of sources offugitive emissions and their means ofcontrol.

(viii) A measurement of average,maximum, and minimum temperaturesand combustion gas velocity.

(ix) A continuous measurement ofcarbon monoxide (CO) in the exhaustgas.

(x) Such other information as theDirector may specify as necessary toensure that the trial burn will determinecompliance with the performancestandards in § 264.343 of this Chapterand to establish the operating conditionsrequired by § 264.345 of this Chapter asnecessary to meet that performancestandard.

(7) The applicant must submit to theDirector a certification that the trialburn has been carried out in accordancewith the approved trial burn plan, andmust submit the results of all thedeterminations required in paragraph(b)(6). This submission shall be madewithin 90 days of completion of the trialburn, or later if approved by theDirector.

(8) All data collected during any trialburn must be submitted to the Directorfollowing the completion of the trialburn.

(9) All submissions required by thisparagraph must be certified on behalf ofthe applicant by the signature of aperson authorized to sign a permitapplication or a report under § 270.11.

(10) Based on the results of the trialburn, the Director shall set the operatingrequirements in the final permitaccording to § 264.345 of this Chapter.The permit modification shall proceedas a minor modification according to§ 270.42.

(c) For the purposes of allowingoperation of a new hazardous wasteincinerator following completion of thetrial burn and prior to final modification

of the permit conditions to reflect thetrial burn results, the Director mayestablish permit conditions, includingbut not limited to allowable waste feedsand operating conditions sufficient tomeet the requirements of § 264.345 ofthis Chapter, in the permit to a newhazardous waste incinerator. Thesepermit conditions will be effective forthe minimum time required to completesample analysis, data computation andsubmission of the trial burn results bythe applicant, and modification of thefacility permit by the Director.

(1) Applicants must submit astatement, with Part B of the permitapplication, which identifies theconditions necessary to operate incompliance with the performancestandards of § 264.343 of this Chapter,during this period. This statementshould include, at a minimum,restrictions on waste constituents, wastefeed rates, and the operating parametersin § 264.345 of this Chapter.

(2) The Director will review thisstatement and any other relevantinformation submitted with Part 13 of thepermit application and specify thoserequirements for this period most likelyto meet the performance standards of§ 264.343"of this Chapter based on hisengineering judgment.

(d) For the purposes of determiningfeasibility of compliance with theperformance standards of § 264.343 ofthis Chapter and'of determiningadequate operating conditions under§ 264.345 of this Chapter, the applicantfor a permit to an existing hazardouswaste incinerator may prepare andsubmit a trial burnplan and perform atrial burn in accordance withparagraphs (b)(2) through (b)(9) of thisSection. Applicants who submit trialburn plans and receive approval beforesubmission of a permit application mustcomplete the trial burn and submit theresults, specified in paragraph (b)(6),with Part B of the permit application. Ifcompletion of this process conflicts withthe date set for submission of the Part Bapplication, the applicant must contactthe Director to establish a later date forsubmission of the Part B application orthe trial burn results. If the applicantsubmits a trial burn plan with Part B ofthe permit application, the trial burnmust be conducted and the results 'submitted within a time period to bespecified by the Director.

§ 270.63 Permits for land treatmentdemonstrations using field test orlaboratory analyses.

(a) For the purpose of allowing anowner or operator to meet the treatmentdemonstration requirements of § 264.272of this Chapter, the Director may issue a

treatment demonstration permit. Thepermit must contain only thoserequirements necessary to meet thestandards in § 264.272(c). The permitmay be issued either as a treatment ordisposal permit covering only the fieldtest or laboratory analyses, or as a two-phase facility permit covering the fieldtests, or laboratory analyses, anddesign, construction operation andmaintenance of the land treatment unit.

(1) The Director may issue a two-phase facility permit if he finds that,based on information submitted in PartB of the application, substantial,although incomplete or inconclusive,information already exists upon whichto base the issuance of a facility permit.

(2) If the Director finds that notenough information exists upon whichhe.can establish permit conditions toattempt to provide for.compliance withall of the requirements of Subpart M, hemust issue a treatment demonstrationpermit covering only the field test orlaboratory analyses.

(b) If the Director finds that a phasedpermit may be issued, he will establish,as requirements in the first phase of thefacility permit, conditions for conductingthe field tests or laboratory analyses.These permit conditions will includedesign and operating parameters(including the duration of the tests oranalyses and, in the case of fileld tests,the horizontal and vertical dimensionsof the treatment zone), monitoringprocedures, post-demonstration clean-up activities, and any other conditionswhich the Director finds may benecessary under § 264.272(c). TheDirector will include conditions in thesecond phase of the facility permit toattempt to meet all Subpart Mrequirements pertaining to unit design,construction, operation, andmaintenance. The Director will establishthese conditions in the second phase ofthe permit based upon the substantialbut incomplete or inconclusiveinformation contained in the Part Bapplication.

(1) The first phase of the permit willbe effective as provided in § 124.15(b) ofthis Chapter.

(2) The second phase of the permitwill be effective as provided inparagraph (d) of this Section.

(c) When the owner or operator whohas been issued a two-phase permit hascompleted the treatment demonstration,he must submit to the Director acertification, signed by a personauthorized to sign a permit applicationor report under § 270.11, that the fieldtests or laboratory analyses have beencarried out in accordance with theconditions specified in phase one of the

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permit for conducting such tests oranalyses. The owner or operator mustalso submit all data collected during thefield tests or laboratory analyses within90 days of completion of those tests oranalyses unless the Director approves alater date.

(d) If the Director determines that theresults of the field tests or laboratoryanalyses meet the requirements of§ 264.272 of this Chapter, he will modifythe second phase of the permit toincorporate any requirements necessaryfor operation of the facility incompliance with Part 264, Subpart M, ofthis Chapter, based upon the results ofthe field tests or .laboratory analyses.(1) This permit modification may

proceed as a minor modification under§ 270.42, provided any such change isminor, or otherwise will proceed as amodification under §270.41(a)(2).

(2) If no modifications of the secondphase of the permit are necessary, or ifonly minor modifications are necessaryand have been made, the Director willgive notice of his final decision to thepermit applicant and to each personwho submitted written comments on thephased permit or who requested noticeof the final decision on the second phaseof the permit. The second phase of thepermit then will become effective asspecified in § 124.15(b).

(3) If modifications under§ 270.41(a)(2) are necessary, the secondphase of the permit will becomeeffective only after those modificationshave been made.

§ 270.64 Interim permits for UIC wells.The Director may issue a permit under

this part to any Class I UIC well (see§ 144.7) injecting hazardous wasteswithin a State in which no UIC programhas been approved or promulgated. Anysuch permit shall apply and insurecompliance with all applicablerequirements of 40 CFR Part 264,Subpart R (RCRA standards for wells),and shall be for a term not to exceedtwo years. No such permit shall beissued after approval or promulgation ofa UIC program in the State. Any permitunder this section shall contain acondition providing that it will terminateupon final action by the Director under aUIC program to issue or deny a UICpermit for the facility.

§§ 270.65-270.69 [Reserved]

Subpart G-Interim Status

§ 270.70 Qualifying for Interim status.(a) Any person who owns or operates

an "existing HWM facility" shall haveinterim status and shall be treated ashaving been issued a permit to theextent he or she has:

(1) Complied with the requirements ofSection 3010(a) of RCRA pertaining tonotification of hazardous waste activity.

[Comment: Some existing facilities may notbe required to file a notificption underSection 3010(a) of RCRA. These facilities mayqualify for interim status by meetingparagraph (a)(2) of this section.)

[2] Complied with the requirements of§ 270.10 governing submission of Part Aapplications;

(b] When EPA determines onexamination or reexamination of a PartA application that it fails to meet thestandards of these regulations, it maynotify the owner or operator that theapplication is deficient and that theowner or operator is therefore notentitled to interim status. The owner oroperator will then be subject to EPAenforcement for operating without apermit.

§ 270.71 Operation during interim status.(a) During the interim status period

the facility shall not.[1) Treat store, or dispose of

hazardous waste not specified in Part Aof the permit application;

(2] Employ processes not specified inPart A of the permit application; or

(3] Exceed the design capacitiesspecified in Part A of the permitapplication.

(b) Interim status standards. Duringinterim status, owners or operators shallcomply with the interim statusstandards at 40 CFR Part 265.

§ 270.72 Changes during interim status.(a] New hazardous wastes not

previously identified in Part A of thepermit application may be treated,stored, or disposed of at a facility if theowner or operator submits a revisedPart A permit application prior to such achange;

(b) Increases in the design capacity ofprocesses used at a facility may bemade if the owner or operator submits arevised Part A permit application priorto such a change (along with ajustification explaining the need for thechange] and the Director approves thechange because of a lack of availabletreatment, storage, or disposal capacityat other hazardous waste managementfacilities;

(c) Changes in the processes for thetreatment, storage, or disposal ofhazardous waste may be made at afacility or additional processes may beadded if the owner or operator submitsa revised Part A permit application priorto such a change (along with ajustification explaining the need for thechange) and the Director approves thechange because:

(1) It is necessary to prevent a threatto human health or the environmentbecause of an emergency situation, or

(2) It is necessary to comply withFederal regulations (including theinterim status. standards at 40 CFR Part265] or State or local laws.

(d) Changes in the ownership oroperational control of a facility may bemade if the new owner or operatorsubmits a revised Part A permitapplication no later than'90 days prior tothe scheduled change. When a transferof ownership or operational control of afacility occurs, the old owner oroperator shall comply with therequirements of 40 CFR Part 265.Subpart H (financial requirements, untilthe new owner or operator hasdemonstrated to the Director that it iscomplying with that SubpartL All otherinterim status duties are transferredeffective immediately upon the date ofthe change of ownership or operationalcontrol of the facility. Upondemonstration to the Director by the,new owner or operator of compliancewith that Subpart, the Director shallnotify the old owner or operator inwriting that it no longer needs to complywith that part as of the date ofdemonstration.

(e) In no event shall changes be madeto an HWM facility during interim statuswhich amount to reconstruction of thefacility. Reconstruction occurs when thecapital investment in the changes to thefacility exceeds fifty percent of the

* capital cost of a comparable entirelynew HWM facility.

§ 270.73 Termination of Interim status.

Interim status terminates when:(al Final administrative disposition of

a permit application is made; or(b) Interim status is terminated as

provided in § 270.10(e)(5).Part 271 is added to read as follows:

PART 271-REQUIREMENTS FORAUTHORIZATION OF STATEHAZARDOUS WASTE PROGRAMS

Subpart A-Requirements for FinalAuthorization

Sec.271.1 Purpose and scope.271.2 Definitions.271.3 Availability of final authorization.271.4 Consistency.271.5 Elements of a program submission.271.6 Program description.271.7 Attorney General's statement.271.8 Memorandum of Agreement with

Regional Administrator.271:9 Requirements for identification and

listing of hazardous wastes.271.10 Requirements of generators of

hazardous wastes.

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Sec.271.11 Requirements for transporters of

hazardous wastes.271.12 Requirements for hazardous waste

management facilities.271.13 Requirements with respect to permits

and permit application.271.14 Requirements for permitting.271.15 Requirements for compliance


authority.271.17 Sharing of information.271.18 Coordination with other programs.271.19 EPA review of State permits.271.20 Approval process.271.21 Procedures for revision of State

programs.271.22 Criteria for withdrawing approval of

State programs.271.23 Procedures for withdrawing approval

of State programsSubpart B-Requirements for InterimAuthorization.271.121 Purpose and scope.271.122 Schedule.271.123 Elements of a program submission.271.124 Program description.271.125 Attorney General's statement.271.126 Memorandum of Agreement with

the Regional Administrator.271.127 Authorization plan.271.128 Program requirements for interim

authorization for Phase I.271.129 Additional program requirements

for interim authorization for Phase II.271.130 Interstate movement of hazardous

waste.271.131 Progress reports.271.132 Sharing of information.271.133 Coordination with other programs.271.134 EPA review of State permits.271.135 Approval process.271.136 Withdrawal of State programs.271.137 Reversion of State program.

Authority: Pub. L. 94-580, as amended byPub. L. 94-809, 42 U.S.C. 6901 et seq.

Subpart A-Requirements for FinalAuthorization§ 271.1 Purpose and scope.

(a) This subpart specifies theprocedures EPA will follow inapproving, revising, and withdrawingapproval of State programs and therequirements State programs must meetto be approved by the Administratorunder Section 3006(b) (hazardouswaste-final authorization) of RCRA.

(b) State submissions for programapproval must be made in accordancewith the procedures set out in thissubpart.

(c) The substantive provisions whichmust be included in State programs forthem to be approved includerequirements for permitting, complianceevaluation, enforcement, publicparticipation, and sharing ofinformation. Many of the requirementsfor State programs are made applicableto States by cross-referencing other EPAregulations. In particular, many of the

provisions of Parts 270 and 124 are madeapplicable to States by the referencescontained in § 271.14.

(d) Upon receipt of a completesubmission, EPA will conduct a publichearing, if interest is shown, anddetermine whether to approve ordisapprove the program taking intoconsideration the requirements of thissubpart, the Act and any commentsreceived.

(e) The Administrator shall approveState programs which conform to theapplicable requirements of this subpart.

(f) Upon approval of a Statepermitting program, the Administratorshall suspend the issuance of Federalpermits for those activities subject to theapproved State program.

(g) Any State program approved bythe Administrator shall at all times beconducted in accordance with therequirements of this subpart.

(h) Partial State programs are notallowed for programs operating underRCRA final authorization, However, inmany cases States will lack authority toregulate activities on Indian lands. Thislack of authority does not impair aState's ability to obtain full programapproval in accordance with thissubpart, i.e., inability of a State toregulate activities on Indian lands doesnot constitute a partial program. EPAwill administer the program on Indianlands if the State does not seek thisauthority.

Note.-States are advised to contact theUnited States Department of the Interior,Bureau of Indian Affairs, concerningauthority over Indian lands.

(i) Except as provided in § 271.4,nothing in this subpart precludes a Statefrom:

(1) Adopting or enforcingrequirements which are more stringentor more extensive than those requiredunder this subpart;

(2) Operating a program with a greaterscope of coverage than that requiredunder this subpart. Where an approvedState program has a greater scope ofcoverage than required by Federal law,the additional coverage is not part of theFederally approved program.

§ 271.2 Definitions.The definitions in Part 270 apply to all

subparts of this part.

§ 271.3 Availability of final authorization.(a) States approved under this

Subpart are authorized to administerand enforce their hazardous wasteprogram in lieu of the Federal program.

(b)(1), States may apply for finalauthorization at any time after thepromulgation of the last component ofPhase II.

(2) State programs under finalauthorization shall not take effect untilthe effective date of the last componentof Phase II.

(c) State operating under interimauthorization may apply for and receivefinal authorization as specified inparagraph (b) of this section.Notwithstanding approval underSubpart B such States must meet all therequirements of this Subpart in order toqualify for final authorization.

(d) States need not have beenapproved under Subpart B in order toqualify for final authorization.

§ 271.4 Consistency.To obtain approval, a State program

must be consistent with the Federalprogram and State programs applicablein other States and in particular mustcomply with the provision below. Forpurposes of this section the phrase"State programs applicable in otherStates" refers only to those Statehazardous waste programs which havereceived final authorization under thispart.

(a) Any aspect of the State programwhich unreasonably restricts, impedes,or operates as a ban on the freemovement across the State border ofhazardous wastes from other States fortreatment, storage, or disposal atfacilities authorized to operate under theFederal or an approved State programshall be deemed inconsistent.

(b) Any aspect of State law or of theState program which has no basis inhuman health or environmentalprotection and which acts as aprohibition on the treatment, storage ordisposal of hazardous waste in the Statemay be deemed inconsistent.

(c) If the State manifest system doesnot meet the requirements of this Part,the State program shall be deemedinconsistent.


(a) Any State that seeks to administera program under this part shall submit tothe Administrator at least three copiesof a program submission. Thesubmission shall contain the -following:


(2) A complete program description,as required by § 271.6 describing howthe State intends to carry out itsresponsibilities under this subpart;


(4) A Memorandum of Agreementwith the Regional Administrator asrequired by § 271.8;

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(5) Copies of all applicable Statestatutes and regulations, including thosegoverning State administrativeprocedures; and

(6) The showing required by§ 271.20(c) of the State's publicparticipation activities prior to programsubmission.

(b) Within 30 days of receipt by EPAof a State pro'gram submission, EPA willnotify the State whether its submissionis complete. If EPA finds that a State'ssubmission is complete, the statutoryreview period (i.e., the period of timeallotted for formal EPA review of aproposed State program under section3006(b) of the Act) shall be deemed tohave begun on the date of receipt of theState's submission: If EPA finds that aState's submission is incomplete, thereview period shall not begin until allnecessary information is received byEPA.

(c] If the State's submission ismaterially changed during the reviewperiod, the review period shall beginagain upon receipt of the revisedsubmission.

(d) The State and EPA may extend thereview period by agreement.


program under this subpart shall submita description of the program it proposesto administer in lieu of the Federalprogram under State law or under aninterstate compact. The programdescription shall include:


(b) A description (includingorganization charts) of the organizationand structure of the State agency oragencies which will have responsibilityfor administering the program, includingthe information listed below. If morethan one agency is responsible foradministration of a program, eachagency must have statewide jurisdictionover a class of activities. Theresponsibilities of each agency must bedelineated, their procedures forcoordination set forth, and an agencymust be designated as a "lead agency"to facilitate communications betweenEPA and the State agencies havingprogram responsibilities. When theState proposes to administer a programof greater scope of coverage than isrequired by Federal law, the informationprovided under this paragraph shallindicate the resources dedicated toadministering the Federally requiredportion of the program.

(1) A description of the State agencystaff who will carry out the Stateprogram, including the number,

occupations, and general duties of theemployees. The State need not submitcomplete job descriptions for everyemployee carrying out the Stateprogram.

(2) An itemization of the estimatedcosts of establishing and administeringthe program, including cost of thepersonnel listed in paragraph (b)(1) ofthis section, cost of administrativesupport, and cost of technical support.This estimate must cover the first twoyears after program approval.

(3) An itemization of the sources andamounts of funding, including anestimate of Federal grant money,available to the State Director to meetthe costs listed in paragraph (b)(2) ofthis section, identifying any restrictionsor limitations upon this funding. Thisestimate must cover the first two yearsafter program approval.



Note:-States are encouraged to useuniform national forms established by theAdministrator. If uniform national forms areused, they may be modified to include theState Agency's name, address, logo, andother similar information, as appropriate, inplace of EPA's.


(f) A description of the State manifesttracking system, and of the proceduresthe State will use to coordinateinformation with other approved Stateprograms and the Federal programregarding interstate and internationalshipments.

(g) An estimate of the number of thefollowing:

(1) Generators;(2) Transporters; and(3) On- and off-site storage, treatment

and disposal facilities, and a briefdescription of the types of facilities andan indication of the permit status ofthese facilities.

(h) If available, an estimate of theannual quantities of hazardous wastesgenerated within the State; transportedinto and out of the State; and stored,treated, or disposed of within the State:On-site; and Off-site.

§ 271.7 Attorney General's statement(a) Any State that seeks to administer

a program under this subpart shallsubmit a statement from the StateAttorney General (or the attorney forthose State agencies which haveindependent legal counsel] that the lawsof the State provide adequate authorityto carry out the program describedunder § 271.6 and to meet therequirements of this subpart. Thisstatement shall include citations to thespecific statutes, administrativeregulations and, where appropriate,judicial decisions which demonstrateadequate authority. State statutes andregulations cited by the State AttorneyGeneral or independent legal counselshall be in the form of lawfully adoptedState statues and regulations at the timethe statement is signed and shall befully effective by the time the program isapproved. To qualify as "independentlegal counsel" the attorney signing thestatement required by this section musthave full authority to independently.,represent the State agency in court onall matters pertaining to the Stateprogram.

Note:--EPA will supply States with anAttorney General's statement format onrequest.

(b) When a'State seeks authority overactivities on Indian lands, the statementshall contain an appropriate analysis ofthe State's authority.§ 271.8 Memorandum of Agreement withthe Regional Administrator.

(a) Any State that seeks to administera program under this subpart shallsubmit a Memorandum of Agreement(MOA). The Memorandum of Agreementshall be executed by the State Directorand the Regional Administrator andshall become effective when approvedby the Administrator. In addition tomeeting the requirements of paragraph(b) of this section, the Memorandum ofAgreement may include other terms,conditions, or agreements consistentwith this subpart and relevant to theadministration and enforcement of theState's regulatory program. TheAdministrator shall not approve anyMemorandum of Agreement whichcontains provisions which restrict EPA'sstatutory oversight responsibility.

(b) All Memoranda of Agreementshall include the following:

(1) Provisions for the RegionalAdministrator to promptly forward tothe State Director information obtainedprior to program approval innotifications provided under section3010(a) of RCRA. The RegionalAdministrator and the State Director

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shall agree on procedures for theassignment of EPA identificationnumbers for new generators,transporters, treatment, storage, anddisposal facilities.

(2) Provisions specifying the frequencyand content of reports, documents andother information which the State isrequired to submit to EPA. The Stateshall allow EPA to routinely reviewState records, reports, and files relevantto the administration and enforcementof the approved program. State reportsmay be combined with grant reportswhere appropriate.




(4) Provisions allowing EPA toconduct compliance inspections of allgenerators, transporters, and HWMfacilities in each year for which theState is operating under finalauthorization. The RegionalAdministrator and the State Directormay agree to limitations on complianceinspections of generators, transporters,and non-major HWM facilities.

(5) No limitations on EPA complianceinspections of generators, transporters,or non-major HWM facilities underparagraph (b)(4) of this section shallrestrict EPA's right to inspect anygenerator, transporter, or HWM facilitywhich ithas cause to believe is not incompliance with RCRA; however, beforeconducting such an inspection, EPA willnormally allow the State a reasonableopportunity to conduct a complianceevaluation inspection.

(6) Provisions for the prompt transferfrom EPA to the State of pending permitapplications and any other informationrelevant to program operation notalready in the possession of the StateDirector (e.g., support files for permitissuance, compliance reports, etc.].When existing permits are transferredfrom EPA to the State foradministration, the Memorandum ofAgreement shall contain provisionsspecifying a procedure for transferringthe administration of these permits. If aState lacks the authority to directlyadminister permits issued by the Federalgovernment, a procedure may beestablished to transfer responsibility forthese permits.

Note-For example, EPA and the Stateand the permittee could agree that the Statewould issue a permit(s) identical to theoutstanding Federal permit which wouldsimultaneously be terminated.

(7) Provisions specifying classes andcategories of permit applications, draftpermits, and proposed permits that theState will send to the RegionalAdministrator for review, comment and.where applicable, objection.

(8) When appropriate, provisions forjoint processing of permits by the Stateand EPA, for facilities or activitieswhich require permits from both EPAand the State under different programs.See § 124.4

Note.-To promote efficiency and to avoidduplication and inconsistency, States areencouraged to enter into joint processingagreements with EPA for permit issuance.

(9) Provisions for the State Director topromptly forward to EPA copies of draftpermits and permit applications for allmajor HWM facilities for review andcomment. The Regional Administratorand the State Director may agree to.limitations regarding review of andcomment on draft permits and/or permitapplications for non-major HWMfacilities. The State Director shall supplyEPA copies of final permits for all majorHWlMl facilities.

(10] Provisions for the State Directorto review all permits issued under Statelaw prior to the date of programapproval and modify or revoke andreissue them to require compliance withthe requirements of this subpart. TheRegional Administrator and the StateDirector shall establish a time withinwhich this review must take place.

(11) Provisions for modification of theMemorandum of Agreement inaccordance with this sibpart.

(c) The Memorandum of Agreement,the annual program grant and the State/EPA Agreement should be consistent. Ifthe State/EPA Agreement indicates thata change is needed in the Memorandumof Agreement the Memorandum ofAgreement may be amended through theprocedures set forth in this subpart. TheState/EPA Agreement may not overridethe Memorandum of Agreement.

Note.-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. However, it may still be appropriate tospecify in the MOA the basis for suchdetailed agreements, e.g., a provision in theMOA specifying that EPA will select facilitiesin the State for inspection-annually as part ofthe State/EPA agreement.

§ 271.9 Requirements for Identificationand listing of hazardous wastes.

The State program must control all thehazardous wastes controlled under 40CFR Part 261 and must adopt a list ofhazardous wastes and set ofcharacteristics for identifying hazardouswastes equivalent to those under 40 CFRPart 261.

§ 271.10 Requirements for generators ofhazardous waste.

(a) The State program must cover allgenerators covered by 40 CFR Part 262.States must require new generators tocontact the State and obtain an EPAidenticfiation number before theyperform any activity subject toregulation under the approved Statehazardous waste program.

(b) The State shall have authority torequire and shall require all generatorsto comply with reporting andrecordkeeping requirements equivalentto those under 40 CFR 262.40 and 262.41.States must require that generators keepthese records at least 3 years.

(c) The State program must requirethat generators who accumulatehazardous wastes for short periods oftime comply with requirements that areequivalent to the requirements foraccumulating hazardous wastes forshort periods of time under 40 CFR262.34.

(d) The State program must requirethat generators comply withrequirements that are equivalent to therequirements for the packaging, labeling,marking, and placarding of hazardouswaste under 40 CFR 262.30 to 262.33, andare consistent with relevant DOTregulations under 49 CFR Parts 172, 173,178 and 179.

(e) The State program shall providerequirements respecting internationalshipments which are equivalent to thoseat 40 CFR 262.50, except that advancenotification of international shipments,as required by 40 CFR 262.50(b)(1), shallbe filed with the Administrator. TheState may require that a copy of suchadvance notice be filed with the StateDirector, or may require equivalentreporting procedures. Note: Such noticesshall be mailed to Hazardous WasteExport, Division for Oceans andRegulatory Affairs (A-107), U.S.Environmental Protection Agency,Washington, D.C. 20460.

(f) The State must require that allgenerators of hazardous waste whotransport (or offer for transport) suchhazardous waste off-site:

(1) Use a manifest system that ensuresthat interstate and intrastate shipmentsof hazardous waste are designated fordelivery, and, in the case of intrastate

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shipments, are delivered to facilitiesthat are authorized to operate under anapproved State program or the Federalprogram;

(2) Initiate the manifest and designateon the manifest the storage, treatment,or disposal facility to which the waste isto be shipped;

(3) Ensure that all wastes offered fortransportation are accompanied by themanifest, except in the case ofshipments by rail or water specified in40 CFR 262.23 (c) and (d) and § 262.20 (e)and (f). The State program shall providerequirements for shipments by rail orwater equivalent to those under 40 CFR§ 262.23 (c) and (d) and § 263.20 (e) and(f).

(4) Investigate instances wheremanifests have not been returned by theowner or operator of the designatedfacility and report such instances to theState in which the shipment originated.

(g) In the case of interstate shipmentsfor which the manifest has not beenreturned, the State program mustprovide for notification to the State inwhich the facility designated on themanifest is located and to the State inwhich the shipment may have beendelivered (or to EPA in the case ofunauthorized States).

(h) The State must follow the Federalmanifest format (40 CFR 262.21) andmay supplement the format to a limitedextent subject to the consistencyrequirements of the HazardousMaterials Transportation Act (49 U.S.C.1801 et seq.).

§ 271.11 Requirements for transporters ofhazardous wastes.

(a) The State program must cover alltransporters covered by 40 CFR Part 263.New transporters must be required tocontact the State and obtain an EPAidentification number from the Statebefore they accept hazardous waste fortransport.

(b) The State shall have the authorityto require and shall require alltransporters to comply withrecordkeeping requirements equivalentto those found at 40 CFR 263.22. Statesmust require that records be kept atleast 3 years.

(c) The State must require thetransporter to carry the manifest duringtransport, except in the case ofshipments by rail or water specified in40 CFR 263.20 (e) and (f) and to deliverwaste only to the facility designated onthe manifest. The State program shallprovide requirement for shipments byrail or water equivalent to those under40 CFR 263.20 (e) and (f).

(d) For hazardous wastes that aredischarged in transit, the State programmust require that transporters notify

appropriate State, local, and Federalagencies of such discharges, and cleanup such wastes, or take action so thatsuch wastes do not present a hazard tohuman health or the environment. Theserequirements shall be equivalent tothose found at 40 CFR 263.30 and 263.31.

§ 271.12 Requirements for hazardouswaste management facilities.

The State shall have standards forhazardous waste management facilitieswhich are equivalent to 40 CFR Parts264 and 266. These standards shallinclude:

(a) Technical standards for tanks,containers, waste piles, incineration,chemical, physical and biologicaltreatment facilities, surfaceimpoundments, landfills, and landtreatment facilities;

(b) Financial responsibility duringfacility operation;

(c) Preparedness for and prevention ofdischarges or releases of hazardouswaste; contingency plans andemergency procedures to be followed inthe event of a discharge or release ofhazardous waste;

(d) Closure and post-closurerequirements including financialrequirements to ensure that money willbe available for closure and post-closuremonitoring and maintenance;

(e) Groundwater monitoring;(f) Security to prevent unauthorized

access to the facility;(g) Facility personnel training;(h) Inspections, monitoring,

recordkeeping, and reporting;(i) Compliance with the manifest

system, including the requirements thatfacility owners or operators return asigned copy of the manifest to thegenerator to certify delivery of thehazardous waste shipment;

(j) Other requirements to the extentthat they are included in 40 CFR Parts264 and 266.

§ 271.13 Requirements with respect topermits and permit applications.

(a) State law must require permits forowners and operators of all hazardouswaste management facilities required toobtain a permit under 40 CFR Part 270and prohibit the operation of anyhazardous waste management facilitywithout such a permit, except thatStates may, if adequate legal authorityexists, authorize owners and operatorsof any facility which would qualify forinterim status under the Federalprogram to remain in operation until afinal decision is made on the permitapplication. When State law authorizessuch continued operation it shall requirecompliance by owners and operators ofsuch facilities with standards at least as

stringent as EPA's interim statusstandards at 40 CFR Part 265.

(b) The State must require all newHWM facilities to contact the State andobtain an EPA identification numberbefore commencing treatment, storage,or disposal of hazardous waste.

(c) All permits issued by the Stateshall require compliance with thestandards adopted by the State under§ 271.12.

(d) All permits issued under State lawprior to the date of approval of finalauthorization shall be reviewed by theState Director and modified or revokedand reissued to require compliance withthe requirements of this Part.

§ 271.14 Requirements for permitting.All State programs under this Subpart

must have legal authority to implementeach of the following provisions andmust be administered in conformancewith each; except that States are notprecluded from omitting or modifyingany provisions to impose more stringentrequirements:

(a) Section 270.1(c)(1)-(Specificinclusions);

(b) Section 270.4-(Effect of permit);(c) Section 270.5-(Noncompliance

reporting);(d) Section 270.10-(Application for a

permit);(e) Section 270.11-(Signatories);(f) Section 270.12-(Confidential

information);(g) Section 270.13-(Contents of Part

A);(h) Sections 270.14-.29--(Contents of

Part B);[Note.-States need not use a two part

permit application process. The Stateapplication process must, however, requireinformation in sufficient detail to satisfy therequirements of § § 270.13-.29.] *

(i) Section 270.30-(Applicable permitconditions);

{) Section 270.31-(Monitoringrequirements);

(k) Section 270.32-(Establishingpermit conditions);

(1) Section 270.33-(Schedule ofcompliance);

(in) Section 270.40-(Permit transfer);(n) Section 270.41-(Permit

modification);(o) Section 270.43-(Permit

termination);(p) Section 270.50-(Duration);(q) Section 270.60-(Permit by rule);(r) Section 270.61-(Emergency

permits);(s) Section 270.64-(Interim permits

for UIC wells);(t) Section 124.3(a)-(Application for a

permit);

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(u) Section 124.5 (a), (c), (d), and (f)-(Modification of permits);

(v) Section 124.6 (a), (c), (d), and (e)-(Draft permit;

(w) Section 124.8-Fact sheets);(x) Section 124.10 (a)(1)(ii), (a)(1)(iii),

(a)(1)(v), (b), (c), (d), and (e)-[Publicnotice);

(y) Section 124.11-(Public commentsand requests for hearings);

(z) Section 124.12(a)-fPublichearings); and

[aa) Section 124.17 (a) and (c)-(Response to comments).

[Note.-States need not implementprovisions identical to the above listedprovisions. Implemented provisions must,however, establish requirements at least asstringent as the corresponding listedprovisions. While States may impose morestringent requirements, they may not makeone requirement more lenient as a tradeofffor making another requirement morestringent; for example, by requiring thatpublic hearings be held prior to issuing anypermit while reducing the amount of advancenotice of such a hearing.]


(a) State programs shall haveprocedures for receipt, evaluation,retention and investigation for possibleenforcement of all notices and reportsrequired of permittees and otherregulated persons (and for investigationfor possible enforcement of failure tosubmit these notices and reports).


(1) A program which is capable ofmaking comprehensive surveys of allfacilities and-activities subject to theState Director's authority to identifypersons subject to regulation who havefailed to comply with permit applicationor other program requirements. Anycompilation, index, or inventory of suchfacilities and activities shall be madeavailable to the Regional Administratorupon request;

(2) A program for periodic inspections-of the facilities and activities subject toregulation. These inspections shall beconducted in a manner designed to:


(ii) Verify the accuracy of informationsubmitted by permittees and other

I regulated persons in reporting forms andother forms supplying monitoring data;and



(4) Procedures for receiving andensuring proper consideration ofinformation submitted by the publicabout violations. Public effort inreporting violations shall be encouraged,and the State Director shall makeavailable information on reportingprocedures.

(c) The State Director and Stateofficers engaged in complianceevaluation shall have authority to enterany site or premises subject toregulation or in which records relevantto program operation are kept in orderto copy any records, inspect, monitor orotherwise investigate compliance withthe State program including compliancewith permit conditions and otherprogram requirements. States whose lawrequires a search warrant before entryconform with this requirement.

(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.

§ 271:16 Requirements for enforcementauthority.


(1) To restrain immediately andeffectively any person by order or bysuit in State court from engaging in anyunauthorized activity which isendangering or causing damage topublic health or the environment.

[Note.-This paragraph requires that Stateshave a mechanism (e.g., an administrativecease and desist order or the ability to seek atemporary restraining order to stop anyunauthorized activity endangering publichealth or the environment.]


(3) To access or sue to recover incourt civil penalties and to seek criminalremedies, including fines, as follows:

(i) Civil penalties shall be recoverablefor any program violation in at least theamount of $10,000 per day.

(ii) Criminal remedies shall beobtainable against any person who

knowingly transports any hazardouswaste to an unpermitted facility; whotreats, stores, or disposes of hazardouswaste without a permit; or who makesany false statement, or representation inany application, label, manifest, record,report, permit or other document filed,maintained, or used for purposes ofprogram compliance. Criminal finesshall be recoverable in at least theamount of $10,000 per day for eachviolation, and imprisonment for at leastsix months shall be available.

(b)(1) The maximum civil penalty orcriminal fines (as provided in paragraph(a)(3) of this section) shall be assessablefor each instance of violation and, if theviolation is continuous, shall beassessable up to the maximum amountfor each day of violation.

(2) The burden of proof and degree ofknowledge or intent required underState law for establishing violationsunder paragraph (a)(3) of this section,shall be no greater than the burden ofproof or degree of knowledge or intentEPA must provide when it brings anaction under the Act.


(c) Any civil penalty assessed, soughtor agreed upon by the StateDirectorunder paragraph (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.If such civil penalty, together with thecosts of expeditious compliance, wouldbe so severely disproportionate to theresources of the violator as to jeopardizecontinuance in business, the payment ofthe penalty may be deferred or thepenalty may be forgiven in whole orpart, as circumstances warrant. In thecase of a penalty for a failure to meet astatutory or final permit compliancedeadline, "appropriate to the violation,"as used in this paragraph, means apenalty which is equal to:

(1) An amount appropriate to addressthe harm or risk to public health or theenvironment; plus




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(5) An amount, if any, appropriate toreflect any part of the noncomplianceattributable to the government itself;and, minus


[Note. In addition to the requirements ofthis paragraph, the State may have otherenforcement remedies. The followingenforcement options, while not mandatory,are highly recommended:


Procedures which enable the State toassess or to sue any persons responsible forunauthorized activities for any expensesincurred by the State in removing, correcting,or terminating any adverse effects uponhuman health and the environment resultingfrom the unauthorized activity, whether ornot accidental;

Procedures which enable the State to suefor compensation for any loss or destructionof wildlife, fish or aquatic life, or theirhabitat, and for any other damages caused byunauthorized activity, either to the State or toany residents of the State who are directlyaggrieved by the unauthorized activity, orboth; and

Procedures for the administrativeassessment of penalties by the Director.]


(1) Authority which allowsintervention as of right in any civilaction to obtain remedies specified inparagraphs (a) (1), (2) or (3) of thissection by any citizen having an interestwhich -is or may be adversely affected;or



(ii) Not oppose intervention by anycitizen when permissive interventionmay be authorizedby statute, rule, orregulation; and

(iii) Publish notice of and provide atleast 30 days for public comment on anyproposed settlement of a Stateenforcement action.

§ 271.17 Sharing of information.(a) Any information obtained or used

in the administration of a State progranshall be available to EPA upon requestwithout restriction. If the informationhas been submitted to the State under aclaim of confidentiality, the State mustsubmit that claim to EPA whenproviding information under thissubpart. Any information obtained from

a State and subject to a claim ofconfidentiality will be treated inaccordance with the regulations in 40CFR Part 2. If EPA obtains from a Stateinformation that is not claimed to beconfidential, EPA may make thatinformation, available to the publicwithout further notice.

(b) EPA shall furnish to States withapproved programs the information inits files not submitted under a claim ofconfidentiality which the State needs toimplement its approved program. EPAshall furnish to States with approvedprograms information submitted to EPAunder a claim of confidentiality, whichthe State needs to implement itsapproved program, subject to theconditions in 40 CFR Part 2.

§ 271.18 Coordination with otherprograms.

(a) Issuance of State permits underthis subpart may be coordinated, asprovided in Part 124, with issuance ofUIC, NPDES, and 404 permits whetherthey are controlled by the State, EPA, orthe Corps of Engineers. See § 124.4.

(b) The State Director of anyapproved program which may affect the

.planning for and development ofhazardous waste management facilitiesand practices shall consult andcoordinate with agencies designatedunder section 4006(b) of RCRA (40 CFRPart 255) as responsible for thedevelopment and implementation ofState solid waste management plansunder section 4002(b) of RCRA (40 CFRPart 256).

§ 271.19 EPA review of State permits.(a) The Regional Administrator may

comment on permit applications anddraft permits as provided in theMemorandum of Agreement under§ 271.8.

(b) Where EPA indicates, in acomment, that issuance of the permitwould be inconsistent with the approvedState program, EPA shall include in thecomment:

(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 conditionswhich the permit would include if itwere issued by the RegionalAdministrator).

(c] A copy of any comment shall besent to the permit applicant by theRegional Administrator.,

(d) The Regional Administrator shallwithdraw such a comment whensatisfied that the State has met orrefuted his or her concerns.

(e) Under Section 3008(a)(3) of RCRA,EPA may terminate a State-issuedpermit in accordance with theprocedures of Part 124, Subpart E, orbring an enforcement action inaccordance with the procedures of 40CFR Part 22 in the case of a violation ofa State program requirement. Inexercising these authorities, EPA willobserve the following conditions:

(1) The Regional Administrator maytake action under section 3008(a)(3) ofRCRA against a holder of a State-issuedpermit at any time on the ground thatthe permittee is not complying with acondition of that permit.

(2) The Regional Administrator maytake action under Section 3008(a)(3) ofRCRA against a holder of a State-issuedpermit at any time on the ground thatthe permittee is not complying with aconditionthat the RegionalAdministrator in commenting on thepermit application or draft permit statedwas necessary to implement approved*State program requirements, whether ornot that condition was included in thefinal permit.

(3) The Regional Administrator maynot take action under section 3008(a)(3)of RCRA against a holder of a State-issued permit on the ground that thepermittee is not complying with acondition necessary to implementapproved State program requirementsunless the Regional Administratorstated in commenting on the permitapplication or draft permit that thecondition was necessary.

(4) The Regional Administrator maytake action under Section 7003 of RCRAagainst a permit holder at any timewhether or not the permit holder iscomplying with permit conditions.

§ 271.20 Approval process.(a) Prior to submitting an application

to 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;

(3) Indicate the cost of obtaining acopy of the submission;

(4) Provide for a comment period ofnot less than 30 days during which time

14254




interested members of the public mayexpress 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 publichearing. Any public hearing to be heldby the State on its application forauthorization shall be scheduled noearlier than 30 days after the notice ofhearing is published;

(6) Briefly outline the fundamentalaspects of the State program; and

(7) Identify a person that an interestedmember of the public may contact withany questions.

(b) If the proposed State program issubstantially modified after the publiccomment period provided in paragraph(a)(4) of this section, the State shall,prior to submitting its program to theAdministrator, provide an opportunityfor further public comment inaccordance with the procedures ofparagraph (a) of this section. Provided,that the opportunity for further publiccomment may be limited to thoseportions of the State's application whichhave been changed since the priorpublic notice.

(c) After complying with therequirements of paragraphs (a) and (b)of this section, the State may submit, inaccordance with § 271.3, a proposedprogram to EPA for approval. Suchformal submission may only be madeafter the date of promulgation of the lastcomponent of Phase II. The programsubmission shall include copies of allwritten comments received by the State,a transcript, recording, or summary ofany public hearing which was held bythe State, and a responsivenesssummary which identifies the publicparticipation activities conducted,describes the matters presented to thepublic, summarizes significantcomments received and responds tothese comments.

(d) Within 90 days from the date ofreceipt of a complete programsubmission for final authorization, theAdministrator shall make a tentativedetermination as to whether or not heexpects to grant authorization to theState program. 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 withparagraph (a)(1) of this section. Noticeof the tentative determination ofauthorization shall also:

(1) Indicate that a public hearing willbe held by EPA no earlier than 30 daysafter notice of the tentative

determination of authorization. Thenotice may require persons wishing topresent testimony to file a request withthe Regional Administrator, who maycancel the public hearing if sufficientpublic interest in a hearing is notexpressed.

(2) Afford the public 30 days after thenotice to comment on the State'ssubmission and the tentativedetermination; and

(3) Note the availability of the Statesubmission for inspection and copyingby the public.

(e) Within 90 days of the notice givenpursuant to paragraph (d) of this section,the Administrator shall make a finaldetermination whether or not to approvethe State's program, taking into accountany comments submitted. TheAdministrator will grant finalauthorization only after the effectivedate of the last component of Phase II.The Administrator shall give notice ofthis final determination in theFederalRegister and in accordance withparagraph (a)() of this section. Thenotification shall include a concisestatement of the reasons for thisdetermination, and a response tosignificant comments received.


(a) Either EPA or the approved Statemay initiate program revision. Programrevision may be necessary when thecontrolling Federal or State statutory orregulatory authority is modified. orsupplemented. The State shall keep EPAfully informed of any proposedmodifications to Its basic statutory orregulatory authority, its forms,procedures, or priorities.

(b) Revision of a State program shallbe accomplished as follows:


(2) Whenever EPA determines that theproposed program revision issubstantial, EPA shall issue publicnotice and provide an opportunity tocomment for a period of at least 30 days.The public notice shall be mailed tointerested persons and shall bepublished in the Federal Register and inenough of the largest newspapers in theState to provide Statewide coverage.The public notice shall summarize the

"proposed revisions and provide for theopportunity to request a public hearing.Such a hearing will be held if there issignificant public interest based onrequests received.

(3) The Administrator shall approve ordisapprove program revisions based onthe requirements of this subpart and ofthe Act.

(4) A program revision shall becomeeffective upon the approval of theAdministrator. Notice of approval of anysubstantial revision shall be publishedin the Federal Register. Notice of ,approval of non-substantial programrevisions may be given by a letter fromthe Administrator to the State Governoror his designee.

(c) States with approved programsshall notify EPA whenever they proposeto transfer all or part of any programfrom the approved State agency to anyother State agency, and shall identifyany new division of responsibilitiesamong the agencies involved. The newagency is not authorized to administerthe program until approved by theAdministrator under paragraph (b) ofthis section. Organizational chartsrequired under § 271.6(b) shall berevised and resubmitted.

(d) Whenever the Administrator hasreason to believe that circumstanceshave changed with respect to a Stateprogram, he may request, and the Stateshall provide, a supplemental AttorneyGeneral's statement, programdescription, or such other documents orinformation as are necessary.

(e) All new programs must complywith these regulations immediately uponapproval. Any approved program whichrequires revision because of amodification to this subpart or to 40 CFRParts 270, 124, 260, 261, 262, 263, 264, 265,or 266 shall be so revised within oneyear of the date of promulgation of suchregulation, unless. a State must amend orenact a statute in order to make therequired revision in which case suchrevision shall take place within twoyears.

§ 271.22 Criteria for withdrawing approvalof State programs.

(a) The Administrator may withdraw,program approval when a State programno longer complies with therequirements of this subpart, and theState fails to take corrective action.Such circumstances include thefollowing:

(1) When the State's legal authority nolonger meets the requirements of thispart, including:



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14256 Federal Register I Vol. 48, No. 64 I Friday, April 1, 1983 I Rules and Regulations

(2) When 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;

Iii) Repeated issuance of permitswhich do not conform to therequirements of this part; or

Iiii) Failure to comply with the publicparticipation requirements of this part.

(3) When the State's enforcementprogram fails to.comply with therequirements of this part. including:

fil Failure to act on violations ofpermits or other program requirements;

(ii) Failure to seek adequateenforcement penalties or to collectadministrative fines when imposed; orI (iii Failure to inspect and monitor

activities subject to regulation.(4) When the State program fails to

comply with the terms of theMemorandum of Agreement requiredunder § 271,8.

§ 271.23 Procedures for withdrawingapproval of State programs.

(a) A State with a program approvedunder this part may voluntarily transferprogram responsibilities required byFederal law to EPA by taking thefollowing actions, or in such othermanner as may be agreed upon with theAdministrator. -

(1) The'State shall give theAdministrator 180 days notice of theproposed transfer and shall submit aplan for the orderly transfer of allrelevent program information not in thepossession of EPA (such as permits,permit files, compliance files, reports,permit applicatiqns) which arenecessary for EPA to administer theprogram.

(2) Within 60 days of receiving thenotice and transfer plan, theAdministrator shall evaluate the State'stransfer plan and shall identify anyadditional information needed by theFederal government for programadministration and/or identify any otherdeficiencies in the plan.

(3) At least 30 days before the transferis to occur the Administrator shallpublish notice of the transfer in theFederal Register and in enough of thelargest newspapers in the State toprovide Statewide coverage, and shallmail notice to all permit holders, permitapplicants, other regulated persons andother interested persons on appropriateEPA and State mailing lists.


(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 as set forth in § 271.22. TheAdministrator shall respond in -writingto any petition to commence withdrawalproceedings. He may conduct aninformal investigation of the allegationsin the petition to determine whethercause exists to commence proceedingsunder this paragraph. TheAdministrator's order commencingproceedings under this paragraph shallfix a time and place for the,commencement of the hearing and shallspecify the allegations against the Statewhich are to beconsidered at thehearing. Within 30 days the State shalladmit or deny these allegations in awritten answer. The party seeking withdrawal of the State's program shall havethe burden of coming forward with theevidence in a hearing under thisparagraph.

(2) Definitions. For purposes of thisparagraph the definitions of "Act,"Administrative Law Judge". "'Hearing","Hearing Clerk", "and "Presiding Officer"in 40 CFR 22.03 apply in addition to thefollowing:

(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 matterof the proceeding.


(3) Procedures. The followingprovisions of 40 CFR Part 22(Consolidated Rules of Practice) areapplicable to proceedings under thisparagraph:

(i) § 22.02-(use of number/gender),(ii) § 22.04(c)-(authorities of

Presiding Officer);(iii) § 22.06--(filing/service of rulings

and orders;(iv) § 22.07 (a) and (b)-except that,

the time for commencement of thehearing shall not be extended beyondthe date set in the Administrator's orderwithout approval of the Administrator(computation/extension of time);

(v) § 22.08-however, substitute"order commencing proceedings" for"complaint"-Ex Parte contacts);

(vi) § 22.09-(examination of fileddocuments);

(vii) § 22.11 (a), (c) and (d), however,motions to intervene must be filed 15days from the date the notice of the

Administrator's order is firstpublished-{intervention);

(viii) § 22.16 except that, service shallbe in accordance with paragraph fb[4)of this section, the first sentence in§ 22.18[c) shall be deleted, and. the word"recommended" shall be substituted forthe word "initial" in § 22.16(c)-(motions);

fix) § 22.19 1a), (b) and (c)-(prehearing conference

[xJ § 22.22-,evidence](xi) § 22.23--objections/offers of

proof);(xii) § 22.25-filing the transcript);

and(xifi) § 2226-{findings/conclusions].(4) Ror-d of proceedings. (i) The

hearig shall be either stenographicallyreported verbatim or tape recorded, andthereupon transcribed by an officialreporter designated by the PresidingOfficer;

(ii) All crders issued by the PresidingOfficer, transcripts of testimony, writtenstatements of position, stipulations,exhibits, motions, briefs, and otherwritten material of any kind submittedin the hearing shall be a part of therecord and shall be available forinspection or copying intihe Office of theHearing Clerk, 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;


(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 proofof service in the form of a statement ofthe datetime, and manner of serviceand the names of the persons served,certified by the person who madeservice; and


(5) Participation by a person not aparty. A person who is not a party may,at the discretion of the Presiding Officer,be permitted to make a limitedappearance by malng an oral or writtenstatement of his/her position on theissues within such limits and on suchconditions as may be fixed by the

Rules and Regulations14256Federal Register / Vol. 48, No. 64 / Friday, April 1, 1983/




Presiding Officer, but he/she may nototherwise participate in the proceeding.

(6) Rights ofparties. All parties to theproceeding may;

(i) Appear by counsel or otherrepresentative in all hearing and pre-hearing proceedings;

(ii) 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, and replybriefs, the Presiding Officer shall .evaluate the record before him/her, theproposed findings and conclusions andany briefs filed by the parties and shallprepare a recommended decision, andshall certify the entire record, includingthe recommended decision, to theAdministrator.

(ii) Copies of the recommendeddecision shall be 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 asupporting brief.

(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.

(ii) If the Administrator concludes thatthe State has administered the programin conformity with the Act andregulations his decision shall constitute"final agency action" within themeaning of 5 U.S.C. 704.

(iii) If the Administrator concludesthat the State has not administered theprogram in conformity with the Act andregulations he shall list the deficienciesin the program and provide the State areasonable time, not to exceed 90 days,to take such appropriate correctiveaction as the Administrator determinesnecessary.

(iv) Within the time prescribed by theAdministrator the State shall take suchappropriate corrective action asrequired by the Administrator and shallfile with the Administrator and allparties a statement certified by the StateDirector that 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 takeappropriate corrective action and file acertified statement thereof within thetime prescribed by the Administrator,the Administrator shall issue asupplementary order withdrawingapproval of the State program. If the

State takes. 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 Act does riot relieveany person from complying with-therequirements of State law, nor does itaffect the validity of actions by the Stateprior to withdrawal.

Subpart B-Requirements for InterimAuthorization

§ 271.121 Purpose and scope.(a) This subpart specifiesrequirements a State program must meetin order to obtain interim authorizationunder Section 3006(c) of RCRA. A Statemust meet all the requirements of this'Subpart in order to qualify for interimauthorization. The requirements a Stateprogram must meet in order to obtainfinal authorization under Section 3006(b)of RCRA are specified in Subpart A.

(b) Interim Authorization of Stateprograms under this Subpart may occurin two phases. The phase (Phase 1allows States to administer a hazardouswaste program in lieu of andcorresponding to that portion of theFederal program which coversidentification and listing of hazardouswaste (40 CFR Part 26), generators (40CFR Part 262) and transporters (40 CFRPart 263) of hazardous wastes, andestablishes preliminary (interim status)standards for hazardous wastetreatment, storage and disposal facilities(40 CFR Part 265). The second phase(Phase II) allows States to administer apermit program for hazardous wastetreatment, storage and disposal facilitiesin lieu of and corresponding to theFederal hazardous waste permitprogram (40 CFR Parts 270, 124 and 264),as explained in paragraph (c) of this"section.

(c) Because some of the Subparts ofthe Federal regulations containingstandards for hazardous wastetreatment, storage and disposal facilities(40 CFR Part 264) will be promulgated atdifferent times, Phase II of interimauthorization will be implemented inseveral components.

(1) Each component of Phase II ofinterim authorization will correspond tospecified Parts and Subparts of theFederal regulations.

(2) EPA will announce eachcomponent of Phase II of interimauthorization in a Federal Registernotice. The notice will announce thatStates may apply for interim

authorization for one or morecomponents. The notice will alsoprovide the effective date of thecomponent(s) and specifically identifythe Parts and Subparts of the Federalregulations comprising thecomponent(s).

(3) States meeting the requirements ofthis Subpart will be allowed to.administer a permit program in lieu ofthe corresponding Federal hazardouswaste permit program for eachcomponent for which they have receivedinterim authorization.

(d) States may apply for'interimauthorization either sequentially or allat once, as long as they adhere to theschedule in § 271.122. For example,States may:

(1) Apply for interim authorization forPhase I and amend that application eachtime a component of Phase II isannounced; or

(2) Apply for interim authorization forPhase I, wait until the last component ofPhase II had been announced, andamend the Phase I application at thattime to include all components of PhaseII; or(3) Apply at the same time for interimauthorization for Phase I and for alreadyannounced components of Phase II, andamend the application each time anadditional component of Phase II isannounced; or

(4) Wait until the last component ofPhase II has been announced, and applyat the same time for interimauthorization for Phase I and for allcomponents of Phase Il.

(e) The Administrator shall approve aState program which meets theapplicable requirements of this Subpart.

[f) Upon approval of a State programfor a component of Phase H, theAdministrator shall suspend theissuance of Federal permits for thoseactivities subject to the approved Stateprogram.

(g) Any State program approved bythe Administrator under this Subpartshall at all times be conducted inaccordance with this Subpart.

(h) Lack of authority to regulateactivities on Indian lands does notimpair a State's ability to obtain interimauthorization under this Subpart. EPAwill administer the program on Indianlands if the State does not seek thisauthority.

Note.-States are advised to contact theUnited States Department of Interior, Bureauof Indian Affairs, concerning huthority overIndianlands.

(1) Nothing in this Subpart precludes aState from:

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(1) Adopting or enforcingrequirements which are more stringentor more extensive than those requiredunder this Subpart.

(2) Operating a program with a greaterscope of coverage than that requiredunder this Subpart. Where an approvedprogram has a greater scope of coveragethan required by Federal law theadditional coverage is not part of theFederally approved program.

§ 271.122 Schedule.(a) Interim authorization for Phase I

shall not take effect until Phase Icommences. Interim authorization foreach component of Phase II shall nottake effect until the effective date of thatcomponent.

(b)(1) Interim authorization mayextend for a 24-month period from theeffective date of the last component ofPhase II.

Note.-EPA will publish a notice in theFederal Register announcing the beginning ofthis 24-month period.

(2) At the end of this period all interimauthorizations automatically expire andEPA shall administer the Federalprogram in any State which has notreceived final authorization.

(c)(1) A State may apply for interimauthorization at any time prior toexpiration of the 6th month of the 24-month period beginning with theeffective date of the last component ofPhase II. The Regional Administratormay extend the application period forgood cause.

(2) A State applying for interimauthorization prior to the announcementof the first component of Phase II shallapply only for interim authorization forPhase I.

(3) A State may apply for interimauthorization for a component of PhaseII upon the'announcement of thatcomponent, provided that the Statemeets the requirement of paragraph (d)of this section.

(4) A State which has received interimauthorization for Phase I (or interimauthorization for Phase I and for somebut not all of the components of PhaseII) shallamend its original submission toinclude all ;f the components of Phase IInot later than 6 months after theeffective date of the last component ofPhase II. The Regional Administratormay extend this deadline for goodcause.

(d)(1) No State may apply for interimauthorization for a component of PhaseII unless it: (i) has received interimauthorization for Phase I; or (ii) issimultaneously applying for interimauthorization for that component ofPhase II and for Phase I.

(2) When a State applies for interimauthorization for a particular componentof Phase II, it shall demonstrate that itsinterim authorization program for PhaseI (and, if applicable, its program for anyother component of Phase II) issubstantially eqivalent to the Federalprogram, including modifications to theFederal program, as follows:

(i) Any State already authorized forparts of the Federal program shallamend its original submission to includeany additional requirements for Phase I(and any additional requirements forother Phase II components for which theState is authorized) which werepromulgated on or before theannouncement date of the particularPhase II component being applied for.

(ii) Any State not yet authorized forany of the Federal programs shallinclude in its submission those Phase Irequirements which were promulgatedon or before the announcement date ofthe particular Phase II component beingapplied for. Any new State programwhich is applying for more than onecomponent of Phase II shall include inits submission the additionalrequirements for such other componentswhich were promulgated on or beforethe announcement date of the particularPhase II component being applied for.


(a) Any State that seeks to administera program under this subpart shallsubmit to the Administrator at leastthree copies of a program submission.The submission shall contain thefollowing:

(1) A letter from the Governor of theState requesting program approval;1 (2) A complete program description,as required by § 271.124 describing howthe State intends to carry out itsresponsibilities under this part;


(4) Memorandum of Agreement withthe Regional Administrator as requiredby § 271.126;

(5) An authorization plan as requiredby § 271.127; and

(6) Copies of all applicable Statestatutes and regulations, including thosegoverning State administrativeprocedures.

(b) Within 30 days of receipt by EPAof a State program submission, EPA willnotify the State whether its submissionis complete. If EPA finds that a State'ssubmission is complete, the formalreview period shall be deemed to havebegun on the date of receipt of theState's submission. If EPA finds that aState's submission is incomplete, thereview period shall not begin until, all

necessary information is received byEPA.

(c) If the State's submission ismaterially changed during the reviewperiod, the review period shall beginagain upon receipt of the revisedsubmission.

(d) A State 'simultaneously applyingfor interim authorization for both PhaseI and a component of Phase II shallprepare a single submission.

(e) A State applying for interimauthorization for a component of PhaseII after receiving interim authorizationfor Phase I (or for Phase I and previouscomponents of Phase II) shall amend itsprevious submission for interimauthorization as specified in §*§ 271.124to 271.127.


program under this subpart shall submit'a description of the program it proposesto administer in lieu of the Federalprogram under State law or under aninterstate compact. A State applyingonly for interim authorization for acomponent of Phase II shall amend itsprogram description for interimauthorization for Phase I (or for Phase Iand previous components of Phase II) asnecessary to reflect the program it -proposes to administer to meet therequirements for interim authorizationcorresponding to the component ofPhase II for which the State is applying.The program description shall include:


(b) A description (includingorganization charts) of the organizationand structure of the State agency oragencies which will have responsibilityfor administering the program, includingthe information listed below. If morethan one agency is responsible foradministration of a program, eachagency must have statewide jurisdictionover a class of activities. Theresponsibilities of each agency must bedelineated, their procedures forcoordination set forth, and an agencymust be designated as a "lead agency"to facilitate communications betweenEPA and the State agencies havingprogram responsibilities. When theState proposes to administer a programof greater scope of coverage than isrequired by Federal law, the informationprovided under this paragraph shallindicate the resources dedicated toadministering the Federally requiredportion of the program.

(1) A description of the State agencystaff who will carry out the Stateprogram, including the number,

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Federal Register / Vol. 48, No. 64 / Friday, April 1, i983 / Rules and Regulations

occupations, and general duties of theemployees. The State need not submitcomplete job description for everyemployee carrying out the Stateprogram.

(2) An itemization of the estimatedcosts of establishing and administeringthe program, including cost of thepersonnel listed in paragraph (b)(1) ofthis section, cost of administrativesupport, and cost of technical support.

(3) An itemization of the sources andamounts of funding, including anestimate of Federal grant money,available to the State Director to meetthe costs listed in paragraph (b)(2) of 'this section, identifying any restrictionsor limitation upon this funding.

(c) A description of applicable Stateprocedures, including permittingprocedures and any State administrativeor judicial review procedures.Note.-States applying only for interimauthorization for Phase I need describepermitting procedures only to the extent theywill be utilized to assure compliance withstandards substantially equivalent to CFRPart 265.


(e) A'complete description of theState's compliance tracking andenforcement program.

(f) A description of the State manifesttracking system, if the State has such asystem and of the procedures the Statewill use to coordinate information withother approved State programs and theFederal program regarding interstateand international shipments.

(g) An estimate of the number of thefollowing:

(1) Generators;(2) Transporters; and(3) On- and off-site storage, treatment

and disposal facilities, and a briefdescription of the types of facilities andan indication of the permit status ofthese facilities.


a program under this subpart shallsubmit a statement from the AttorneyGeneral (or the attorney for those Stateagencies which have independent legalcounsel) that. the laws of the Stateprovide adequate authority to carry outthe program described under § 271.124and to meet the requirements of thissubpart. This statement shall include

citations to the specific statutes,administrative regulations, and, whereappropriate, judicial decisions whichdemonstrate adequate authority. Exceptas provided in § 271.128(d), the StateAttorney General or independent legalcounsel must certify that the enablinglegislation for the State's program wasin existence within 90 days of theannouncement of the last component ofPhase II. State statutes and regulationscited by the State Attorney General orindependent legal counsel shall be in theform of lawfully adopted State statutesand regulations at the time thestatement is signed and shall be fullyeffective by the time the program isapproved. To qualify as "independentlegal counsel" the attorney signing thestatement required by this section musthave full authority to independentlyrepresent the State agency in court onall matters pertaining to the Stateprogram. In the case of a State applyingonly for interim authorization for acomponent of Phase II, the AttorneyGeneral's statement submitted forinterim authorization for Phase I (or forPhase I and previous components ofPhase II) shall be amended andrecertified to demonstrate adequateauthority to carry out all requirements ofthat component.

(b)(1) In the case of a State applyingfor interim authorization for Phase I, theAttorney General's statement shallcertify that the authorization plan under§ 271.127(a), if carried out, wouldprovide the State with enablingauthority and regulations aelequate tomeet the requirements for finalauthorization contained in Phase I.

(2) In the case of a State applying forinterim authorization for a component ofPhase II, the Attorney General'sstatement shall certify that theauthorization plan under § 271.127(b), ifcarried out, would provide the Statewith enabling authority and regulationsadequate to meet all the requirementsfor final authorization contained in thatcomponent of Phase II.


(c) When a State seeks authority overactivities on Indian lands, the statementshall contain an appropriate analysis ofthe State's authority.

§ 271.126 Memorandum of Agreementwith the Regional Administrator.

'(a) Any State that seeks to administer

a program under this subpart shallsubmit a Memorandum of Agreement(MOA). The Memorandum of Agreementshall be executed by the State Directorand the Regional Administrator and

shall become effective when approvedby the Administrator. In addition tomeeting the requirements of paragraph(b) of this section and, if applicable,paragraph (c) of this section, theMemorandum of Agreement mayinclude other terms, conditions, oragreements consistent with this Part andrelevant to the administration andenforcement of the State's regulatoryprogram. The Administrators shall notapprove any Memorandum ofAgreement which contains provisionswhich restrict EPA's statutory oversightresponsibility. In the case of a Stateapplying for interim authorization for acomponent of Phase II, theMemorandum of Agreement shall beamended and reexecuted to include therequirements of paragraph (c) of thissection and any necessary revisions tothe requirements of paragraph (b) of thissection.


(1) Provisions for the RegionalAdministrator to promptly forward tothe State Director information obtainedprior to program approval innotifications provided under section3010 (a) of RCRA. The RegionalAdministrator and the State Directorshall agree on procedures for theassignment of EPA identificationnumbers for new generators,transporters, treatment, storage, anddisposal facilities.

(2) Provisions specifying the frequencyand content of reports, documents andother information which the State isrequired to submit to EPA. The Stateshall allow EPA to ioutinely reviewState records, reports, and files relevantto the administration and enforcementof the approved program. State reportsmay be combined with grant reportswhere appropriate.




(4) Provisions allowing EPA toconduct compliance inspections of allgenerators, transporters, and HWMfacilities during interim authorization.The Regional Administrator and theState Director may agree to limitationson compliance inspections of generators,

14259142R




transporters, and non-major HWMfacilities.

(5) No limitations on EPA complianceinspections of generators, transporters,or non-major HWM facilities underparagraph (b)(4) of this section shallrestrict EPA's right to inspect anygenerator, transporter, or HWM facilitywhich it has cause to believe is notcompliance with RCRA; however, beforeconducting such an inspection, EPA willnormally allow the State a reasonableopportunity to conduct a complianceevaluation inspection.

.(6) Provisions delineating respectiveState and EPA responsibilities duringthe interim authorization period.


(c) In addition, Memoranda ofAgreement for Phase II shall alsoinclude the following, as applicable tothe component of Phase II for which theState is applying:

(1) Provisions for the prompt transferfrom EPA to the State of pending permitapplications and any other informationrelevant to program operation notalready in the possession of the StateDirector (e.g., support files for permitissuance, compliance reports, etc.).When existing permits are transferredfrom EPA to the State foradministration, the Memorandum ofAgreement shall contain provisionsspecifying a procedure for transferringthe administration of these permits. If aState lacks the authority to directlyadminister permits issued by the Federalgovernment, a procedure may beestablished to transfer responsibility forthese permits.

(2) Provisions specifying classes andcategories of permit applications anddraft permits that the State Director willsend to the Regional Administrator forreview and comment.

(3) When appropriate, provisions forjoint processing of permits by the Stateand EPA, for facilities or activitieswhich require permits from both EPAand the State under different programs.See § 124.4.

(4) Provisions for the State Director topromptly forward to EPA copies of draftpermits and permit applications for allmajor HWM facilities for review andcomment. The Regional Administratorand the State Director may agree tolimitations regarding review of andcomment on draft permits and/or permitapplications for non-major HWMfacilities. The State Director shall supplyEPA copies of final permits for all majorHWM facilities.

§ 271.127 Authorization plan.The State must submit an

"authorization plan" which shalldescribe the additions and modifications.necessary for the State program toqualify for final authorization as soon aspracticable, but no later then the end ofthe interim authorization period. Thisplan shall include the nature of andschedules for any changes in Statelegislation and regulations; resourceslevels; actions the State must take tocontrol the complete universe ofhazardous waste listed or designatedunder section 3001 of RCRA as soon aspossible; the manifest and permitsystems; and the surveillance andenforcement program which will benecessary in order for the State tobecome eligible for final authorization.

(a)(1) In the case of a State applyingonly for interim authorization for PhaseI, the puthorization plan shall describethe additions and modificationsnecessary for the State program to meetthe requirements for final authorizationcontained in Phase I.

(2) In the case of a State applying only'for interim authorization for acomponent of Phase II, the authorizationplan for Phase I (or for Phase I andprevious components of Phase II) shallbe amended to meet the requirements ofparagraph (b) of this section.

(b)(1) In the case of a State applyingfor interim authorization for acomponent of Phase II, the authorizationplan shall describe the additions andmodifications necessary for the Stateprogram to meet the requirements forfinal authorization corresponding to thatcomponent of Phase II and therequirements for final authorizationcorresponding to Phase I and previouscomponents of Phase II.

(2) In the case of a State applying forinterim authorization for the lastcomponent of Phase II, the authorizationplan shall describe the additions andmodifications necessary for the Stateprogram to meet all the requirements forfinal authorization.

§ 271.128 Program requirements forinterim authorization for Phase I.

The following requirements areapplicable to States applying for interimauthorization for Phase I. If a State doesnot have legislative authority orregulatory control over certain activitiesthat do not occur in the State, the Statemay be granted interim authorization forPhase I provided the State authorizationplan under § 271.127 provides for thedevelopment of a complete program assoon as practicable after receivinginterim authorization.

(a) Requirements for identificationand listing of hazardous waste. The

State program must control a universe ofhazardous wastes generated,transported, treated, stored, anddisposed of in the State which is nearlyidentical to that which would becontrolled by the Federal program under40 CFR Part 261.

(b) Requirements for generators ofhazardous waste.

(1) This paragraph applies unless theState comes within the exceptionsdescribed under paragraph (d) of thissection.

(2) The State program must cover allgenerators of hazardous wastecontrolled by the State.

(3) The State shall have the authorityto require and shall require allgenerators covered by the State programto comply with reporting andrecordkeeping requirementssubstantially equivalent to those foundat 40 CFR 262.40 and 262.41.

(4) The State program must requirethat generators who accumulatehazardous wastes for short periods oftime do so in a manner that does notpresent a hazard to human health or theenvironment.

(5) The State program shall providerequirements respecting internationalshipments which are substantiallyequivalent to those at 40 CFR 262.50,except that advance notification ofinternational shipment, as required by40 CFR 262.50(b)(1), shall be filed withthe Administrator. The State mayrequire that a copy of such advancenotice be filed with the State Director, ormay require equivalent reportingprocedures.

[Note.-Such notices shall be mailed toHazardous Waste Export, Division forOceans and Regulatory Affairs (A-107), U.S.Environmental Protection Agency,Washington, D.C. 20460.]

(6) The State program must requirethat such generators of hazardous wastewho transport (or offer for transport)such hazardous waste off-site use amanifest system that ensures that inter-and intrastate shipments of hazardouswaste are designated for delivery, and,in the case of intrastate shipments, aredelivered only to facilities that areauthorized to operate under anapproved State program or the Federalprogram.

(7) The State manifest system mustrequire that:

(i) The manifest itself identify thegenerator, transporter, designatedfacility to which the hazardous wastewill be transported, and the hazardouswaste being transported;

(ii) The manifest accompany allwastes offered for transport, except inthe case of shipments by rail or water

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specified in § 262.23 (c) and (d) and263.20 (e) and (f); and

(iii) Shipments of hazardous wastethat are not delivered to a designatedfacility are either identified and reportedby the generator to the State in whichthe shipment originated or areindependently identified by the State inwhich the shipment originated.

(8) In the case of interstate shipmentsfor which the manifest fias not beenreturned, the State program mustprovide for notification to the State inwhich the facility designated on themanifest is located and to the State inwhich the shipment may have beendelivered (or to EPA in the case ofunauthorized States).

(c) Requirements for transporters ofhazardous wastes.

(1) This paragraph applies unless theState comes within the exceptionsdescribed under paragraph (d) of thissection.

(2) The State program must cover alltransporters of hazardous wastecontrolled by the State.

(3) The States shall have the authorityto require and shall require alltransporters covered by the Stateprogram to comply with recordkeepingrequirements substantially equivalent tothose found at 40 CFR 263.22.

(4] The State program must requiresuch transporters of hazardous waste touse a manifest system that ensures thatinter- and intrastate shipments ofhazardous waste are delivered only tofacilities that are authorized under anapproved State program or the Federalprogram.

(5) The State program must requirethat transportation carry the manifestwith all shipments, except in the case of.shipments by rail or water specified in40 CFR 263.20 (e) and (f).

(6) For hazardous wastes that aredischarged in transit, the State programmust require that transporters notifyappropriate State, local and Federalagencies of the discharges, and clean upthe wastes or take action so that thewastes do not present a hazard tohuman health or the environment. Theserequirements shall be substantiallyequivalent to those found at 40 CFR263.20 and 263.31.

(d) Limited exceptions from generator,transporter, and related manifestrequirements. A State applying forinterim authorization for Phase I whichmeets all the requirements for suchinterim authorization except that it doesnot have statutory or regulatoryauthority for the manifest system orother generator or transporter.requirements discussed in paragraphs(b) and (c) of this section may begranted in interim authorization, if the

State authorization plan under § 271.127delineates the necessary steps forobtaining this authority no later than theend of the interim authorization periodunder § 271.122(b). A State may applyfor interim authorization to implementthe manifest system and other generatorand transporter requirements if theenabling legislation for that part of theprogram was in existence within 90 daysof the announcement of the lastcomponent of Phase II. States whichreceived interim authorization for PhaseI under the terms of this paragraph mayapply for interim authorization toimplement the manifest system andother generator and transporterrequirements as a part of the State'ssubmission for Phase II or as mutuallyagreed upon between EPA and theState. Until the State manifest systemand other generator and transporterrequirements are approved by EPA, allFederal requirements'for generators andtransporters (including use of theFederal manifest system) shall apply insuch States and enforcementresponsibility for that part of theprogram shall remain with the Federalgovernment. The universe of wastes forwhich these Federal requirements applyshall be the universe of wastescontrolled by the State under paragraph(a) of this section.

(e) Requirements for hazardous wastetreatment, storage and disposalfacilities. States must have standardsapplicable to HWM facilities which aresubstantially equivalent to 40 CFR Part265. State law shall prohibit theoperation of facilities not in compliancewith such standards. These standardsshall include:

(1) Prepardness for and prevention ofreleases of hazardous waste controlledby the State under paragraph (a) of thissection and contingency plans andemergency procedures to be followed inthe event of a release of such hazardouswaste;

(2) Closure and post-closurerequirements;

(3) Ground-water monitoring;(4) Security to prevent unknowing and

unauthorized access to the facility;(5) Facility personnel training;(6) Inspection, monitoring,

recordkeeping, and reporting;(7) Compliance with the manifest

system including the requirement thatthe facility owner or operator or theState in which the facility is locatedmust return a copy of the manifest to thegenerator or to the State in which thegenerator is located indicating deliveryof the waste shipment; and

(8) Other facility standards to theextent that they are included in 40 CFRPart 265, except that Subpart R

(standards for injection wells) may beincluded in the State standards, at theState's option.

(f) Requirements for enforcementauthority. (1) Any State agencyadministering a program under thisSubpart shall have the followingauthority to remedy violations of Stateprogram requirements:

(i) Authority to restrain immediatelyby order or by suit in State court anyperson from engaging in anyunauthorized activity which isendangering or causing damage topublic health or the environment;

(ii) To sue in courts of competentjurisdiction to enjoin any threatened orcontinuing violation of any programrequirement, including, whereappropriate, permit conditions, withoutthe necessity of a prior revocation of thepermit; and

(iii) for any program violation, toassess or sue to recover in court civilpenalties in at least the amount of $1000per day or to seek criminal fines in atleast the amount of $1000 per day

(2) Any State administering a programunder this Subpart shall provide forpublic participation in the Stateenforcement process by providing either:

(i) Authority which allowsintervention as of right in any civilaction to obtain the remedies specifiedin paragraphs (f)[1) (ii) and (iii) of thissection by any citizen having an interestwhich is or may be adversely affected;or

(ii)(A) Assurance by the appropriateState agency that it will investigate andprovide written responses to all citizencomplaints submitted pursuant to theprocedures specified in paragraph(g)(2)(iv) of this section;

(B) Assurance by the appropriateState enforcement authority that it willnot oppose intervention by any citizenwhen permissive intervention isauthorized by statute, rule, or regulation;and

(C) Assurance by the appropriateState enforcement authority that it willpublish notice of and provide at least 30days for public comment on all proposedsettlements of civil enforcement actions,except in cases where a settlementrequires some immediate action (e.g.,cleanup) which if otherwise delayedcould result in substantial damage toeither public health or the environment.

(g) Requirements for complianceevaluation programs.

(1) A State program under thisSubpart shall have procedures forreceipt, evaluation, recordkeeping, andinvestigation for possible enforcement ofall required notices and reports.

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(2) The State program shall (i) includeindependent State inspection andsurveillance authority to determinecompliance or non-compliance withapplicable program requirements; or (ii)the State program shall indicate that theState will rely on and act under theinspection authority provided in Section3007(a) of RCRA.

(3) If the State is relying onindependent State inspection andsurveillance authority, the authorityshall include authority to enter anyconveyance, vehicle, facility, orpremises subject to regulation or inwhich records relevant to programoperation are kept in order to inspect,obtain samples, monitor or otherwiseinvestigate compliance with the Stateprogram. States whose law requires asearch warrant prior to entry complywith this requirement.

(4) If the State is relying on theauthority in section 3007(a), the Stateprogram must contain assurances thatthere are no provisions of State lawwhich prevent the State from using thatauthority.

(5) The State program must include:(i) The capability to make

comprehensive surveys of any activitiessubject to the State Director's authorityin order to identify persons subject toregulation who have failed to complywith program requirements;

(ii) A program for periodic inspectionof the activities subject to regulation;

(iii) The capability to investigateevidence of violations of applicableprogram and permit requirements;

(iv) Procedures to determinecompliance or non-compliance withapplicable program requirementsincluding procedures for receiving andensuring proper consideration ofinformation submitted by the publicabout violations. Public effort inreporting violations shall be encouragedand the State Director shall makeavailable information on reportingprocedures.

(6) 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.

§ 271.129 Additional programrequirements for Interim authorization forPhase II.

In addition to the requirements of§ 271.128, the following requirements areapplicable to States applying for acomponent of Phase II.

(a)(1) State programs must havestandards applicable to hazardouswaste management facilities that

provide substantially the same degree ofhuman health and environmentalprotection as the standards promulgatedin the Subparts of 40 CFR Part 204comprising that component.

(2) The Administrator may authorize aState program for Phase II ComponentsA or B, or both, even though the Stateprogram does not include liabilitycoverage requirements, if (i) the Statesubmitted a draft application for thecomponent or components of Phase IIinterim authorization prior to April 16,1982, and (ii) the State commits in itsMemorandum of Agreement to adoptState liability coverage requirements asquickly as practicable, but in no caselater than the State's application for anadditional component of Phase II interimauthorization.

(3) Any State which receives interimauthorization for Components A or B orboth without liability coveragerequirements, pursuant to paragraph(a)(2) of this section, may not receive anadditional component of Phase II interimauthorization unless it has liabilitycoverage requirements in effect.

(4) The Administrator may authorize aState program for Phase II ComponentA, even though the State program doesnot have standards corresponding to 40CFR Subpart K (Surface Impoundments),if the State commits in its Memorandumof Agreement to adopt State standardssubstantially equivalent to 40 CFR Part264 Subpart K no later than the State'sapplication for the Phase II componentcorresponding to the Federal landdisposal standards.

(5) Any State which receives interimauthorization for Component A withoutsurface impoundment standards,pursuant to paragraph (a)(4) of thissection, may not receive interimauthorization for the Phase II componentcorresponding to the Federal landdisposal standards unless it hasstandards substantially equivalent to 40CFR Part 264 Subpart K in effect.

(b)(1) State programs shall require apermit for owners and operators ofthose hazardous waste treatment,storage and disposal facilities:

(i) corresponding to that component;(ii) which handle any waste controlled

by the State under § 271.128(a); and(iii) for which a permit is required

under 40 CFR Part 270.(2) The State program shall prohibit

the operation of such facilities without apermit, provided States may authorizeowners and operators of facilities whichwould qualify for interim status underthe Federal program (if State law soauthorizes) to remain in operationpending permit action. Where State lawauthorizes such continued operation itshall require compliance by owners and

operators of such facilities withstandards substantially equivalent toEPA's interim status standards under 40CFR Part 265.

(c) All permits issued by the Stateunder this section shall require

compliance with the standards adoptedby the State in accordance withparagraph (a) of this section.

(d) State programs shall haverequirements for permitting which aresubstantially equivalent to theprovisions listed in § 271.14, except thatStates must have requirementsequivalent to § 124.10(b)(1), (c)(1)(ix),(c)(2)(ii) and § 124.12(a).

(e) A State with interim authorizationfor a component of Phase II may notissue permits pursuant to thatcomponent with a term greater than tenyears.

(f) State programs shall require that afacility which, under the Federalhazardous waste management programwould be deemed to have a Federalpermit if the conditions established in§ 270.60 of this chapter are met, complywith standards at least substantiallyequivalent to the applicable standardsin § 270.60 of this chapter. Suchstandards need not be imposed throughissuance of a permit, but must be fullyenforceable.§ 271.130 Interstate movement ofhazardous waste.

(a) If a waste is transported from aState where it is listed or designated ashazardous under the program applicablein that State, whether that is the Federalprogram or an approved State program,into a State with interim authorizationwhere it is not listed or designated, thewaste must be manifested in accordancewith the laws of the State where thewaste was generated and must betreated, stored, or disposed of asrequired by the laws of the State intowhich it has been transported.

(b) If a waste is transported from aState with interim authorization where itis not listed or designated as hazardousinto a State where it is listed or*designated as hazardous under theprogram applicable in that State,whether that is the Federal program oran approved State program, the wastemust be treated, stored, or disposed of inaccordance with the law applicable inthe State into which it has beentransported.

(c) In all cases of interstate movementof hazardous waste, as defined by 40CFR Part 261, generators andtransporters must meet DOTrequirements in 49 CFR Parts 172, 173,178, and 179 (e.g., for shipping paper,

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packaging, labeling, marking, andplacarding).

§ 271.131 Progress reports.The State Director shall submit a

semi-annual progress report to the EPARegional Administrator within 4 weeksof the date 6 months after Phase Icommerices, and at 6-month intervalsthereafter until the expiration of interimauthorization. The reports shall brieflysummarize, in a manner and formprescribed by the RegionalAdministrator, the State's compliance inmeeting the requirements of theauthorization plan, the reasons andproposed remedies for any delay inmeeting milestones, and the anticipatedproblems and solutions for the nextreporting period.

§ 271.132 Sharing of Information.

(a) Any information obtained or usedin the administration of a State programshall be available to EPA upon requestwithout restrictionAf the informationhas been submitted to the State under aclaim of confidentiality, the State mustsubmit that claim to EPA whenproviding information under thissubpart. Any information obtained froma State and subject to a claim ofconfidentiality will be treated inaccordance with the regulations in 40CFR Part 2. If EPA obtains from a Stateinformation that is not claimed to beconfidential, EPA may make thatinformation available to the publicwithout further notice.

(b) EPA shall furnish to States withapproved programs the information inits files not submitted under a claim ofconfidentiality which the State needs toimplement its approved program. EPAshall furnish to States with approvedprograms information submitted to EPAunder a claim of confidentiality, whichthe States needs to implement itsapproved program, subject to theconditions in 40 CFR Part 2.§ 271.133 Coordination with otherprograms.

(a) Issuance of State permits underthis part may be coordinated, asprovided in Part 124, with issuance ofUIC, NPDES, and 404 permits whetherthey are controlled by the State, EPA orthe Corps of Engineers. See § 124.4.

(b) The State Director of anyapproved program which may effect theplanning for the development ofhazardous waste management facilitiesand practices shall consult andcoordinate with agencies designatedunder section 4006(b) of RCRA (40 Part255) as responsible for the developmentand implementation of State and solid

waste management plans under section4002(b) of RCRA (40 CFR Part 256).

§ 271.134 EPA review of State permits.(a) The Regional Administrator may

comment on permit applications anddraft permits as provided in theMemorandum of Agreement under§ 271.126.

(b] Where EPA indicates, in acomment, that issuance of the permitwould be inconsistent with the approvedState program, EPA shall include in thecomment:

(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 addretsthe comments (including the conditionswhich the petmit would include if itwere issued by the RegionalAdministrator).

(c) A copy of any comment shall besent to the permit applicant by RegionalAdministrator.

(d) The Regional Administrator shallwithdraw such a comment whensatisfied that tle State has met orrefuted his oK her concerns.

(e) Under Section 3008(a)(3) of RCRA,EPA may terminate a State-issuedpermit in accordance with theprocedures of Part 124, Subpart E, orbring an enforcement action inaccordance with the procedures of 40CFR Part 22 in the case of a violation ofa State program requirement. Inexercising these authorities, EPA willobserve the following conditions:

(1) The Regional Administrator maytake action under section 3008(a)(3) ofRCRA against a holder of a State-issuedpermit at any time on the ground thatpermittee.is not complying with acondition of that permit.

(2) The Regional Adminisrator maytake action under Section 3008(a)(3) ofRCRA against a holder of a State-issuedpermit at any time on the ground thatthe permittee is not complying with acondition that the RegionalAdministrator in commenting on thepermit application or draft permit statedwas necessary to implement approvedState program requirements, whether ornot that condition was included in the

-final permit.(3) The Regional Administrator may

not take action under section 3008(a)(3)of RCRA against a holder of a State-issued permit on the ground that thepermittee is not complying with acondition necessary to implementapproved State program requirementsunless the Regional Administratorstated in commenting on the permit

application or draft permit that thecondition was necessary.

(4) The Regional Administrator maytake action under Section 7003 of RCRAagainst a permit holder at any timewhether or not the permit holder iscomplying with permit conditions.

§ 271.135 Approval process.(a) Within 30 days of receipt of a

complete program submission for PhaseI or for a component of Phase II ofinterim authorization, the RegionalAdministrator shall:

(1) Issue notice in the Federal Registerand in accordance with § 271.20(a)(1) ofa public hearing on the State'sapplication for interim authorization..Such public hearing will be held by EPAno earlier than 30 days after notice ofthe hearing, provided that if significantpublic interest in a hearing is notexpressed, the hearing may be cancelledif a statement to this effect is included inthe public notice. The State shallparticipate, in any public hearing held byEPA.

(2) Afford the public 30 days after thenotice to comment on the State'ssubmission; and

(3) Note the availability of the State'ssubmission for inspection and copyingby the public. The State submissionshall, at a minimum, be available in themain office of the lead State agency andin the EPA Regional Office. .

(b) Within 90 days of the notice in theFederal Register required by paragraph(a)(1) of this section, the Administratorshall make a final determinationwhether or not to approve the State'sprogram, taking into account anycomments submitted. The Administratorwill give notice of this finaldetermination in the Federal Registerand in accordance with § 271.20(a)(1).The notification shall include a concisestatement of the reasons for thisdetermination, and a response tosignificant comments received.

(c) Where a State has received interimauthorization for Phase I or for Phase Iand for some, but not all, components ofPhase II, the same procedures requiredin paragraphs (a) and (b) of this sectionshall be used in determining whether theamended program submission meets therequirements of the Federal Program.

§ 271.136 WIthdrawal of State programs.(a) The criteria and procedures for

withdrawal set forth in § § 271.22 and271.23 apply to this section.

(b) In addition to the criteria in§ 271.22, State program approval may bewithdrawn if a State which has obtainedinterim authorization fails to meet theschedule for or accomplish the additions

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or revisions of its program set forth in itsauthorization plan.

§ 271.137 Reversion of State programs.

(a) A State program approved forinterim authorization for Phase I or forPhase I and some but not allcomponents of Phase II shall terminateon the last day of the 6th month after theeffective date of the last component ofPhase II, and EPA shall administer andenforce the Federal program in the Statecommencing on that date if the State hasfailed to submit by that date anamended submission pursuant to§ 271.122(c](4]. The RegionalAdministrator may extend this deadlinefor good cause.

(b) A State program approved forinterim authorization for Phase I or forPhase I and for some but not allcomponents of Phase II shall. terminateand EPA shall administer and enforcethe Federal program in the State if theRegional Administrator determinespursuant to § 271.135(c) that a programsubmission amended pursuant to§ 271.122(c)(4) does not meet therequirements of the Federal program.


PART 124-PROCEDURES FOR

DECISIONMAKING

Subpart A-General Program Requirements

Sec.124.1 Purpose and scope.124.2 Definitions.124.3 Application for a permit.124.4 Consolidation of permit processing.124.5 Modification, revocation and

reissuance, or termination of permits.124.6 Draft permit.124.7 Statement of basis.124.8 Fact sheet.124.9 Administrative record for draft

permits when EPA is the permittingauthority.

124.10 Public notice of permit actions andpublic comment period.

124.11 Public comments and requests forpublic hearings.

124.12 Public hearings.124.13 Obligation to raise issues and

provide information during the publiccomment period.

124.14 Reopening of the public commentperiod.

124.15 Issuance and effective date of permit.124.16 Stays of contested permit conditions.124.17 Response to comments.124.18 Administrative record for final

permit when EPA is the permittingauthority.

124.19 Appeal of RCRA, UIC and PSDpermits.

124.20 Computation of time.124.21 Effective date of Part 124.

Subpart B-Specific ProceduresApplicable to RCRA Permits[Reserved]

Subpart C-Specific Procedures Applicableto PSD PermitsSec.124.41 Definitions applicable to PSD

permits.124.42 Additional procedures for PSD

permits affecting Class I areas.

Subpart D-Specific Procedures Applicableto NPDES Permits

124.51 Purpose and scope.124.52 Permits required on a case-by-case

basis.124.53 State certification.124.54 Special provisions for State

certification and concurrence onapplications for section 301(h) variances.

124.55 Effect of State certification.124.56 Fact sheets.124.57 Public notice.124.58 Special procedures for EPA-issued

general permits for point sources otherthan separate storm sewers.

124.59 Conditions requested by the Corps ofEngineers and other governmentagencies.

124.60 lssuahice and effective date and staysof NPDES permits.

124.61 Final environmental impactstatement.

124.62 Decision on variances.124.63 Procedures for variances when EPA

is the permitting authority.124.64 Appeal of variances.124.65 Special procedures for discharge into

marine waters under section 301(h).124.66 Special procedures for decisions on

thermal variances under section 316(a).

Subpart E-Evidentiary Hearing for EPA-Issued NPDES Permits and EPA-TerminatedRCRA Permits

124.71 Applicability.124.72 Definitions.124.73 Filing and submission of documents.124.74 Requests for evidentiary hearing.124.75 Decision on request for a hearing.124.76 Obligation to submit evidence and

raise issues before a final permit isissued.

124.77 Notice of hearing.124.78 Ex parte communications.124.79 Additional parties and issues.124.80 Filing and service.124.81 -Assignment of Administrative Law

Judge.124.82 Consolidation and severance.124.83 Prehearing conferences.124.84 Summary determination.124.85 Hearing procedure.124.86 Motions.124.87 Record of hearings.124.88 Proposed findings of fact and

conclusions; brief.124.89 Decisions.124.90 Interlocutory appeal.124.91 Appeal to the Administrator.

Subpart F-Non-Adversary PanelProceduresSec.124.111 Applicability.124.112 Relation to other Subparts.124.113 Public notice of draft permits and

public comment period.124.114 Request for hearing.124.115 Effect of denial of or absence of

request for hearing.124.116 Notice of hearing.124.117 Request to participate in hearing.124.118 Submission of written comments on

draft permit.124.119 Presiding Officer.124.120 Panel hearing. -124.121 Opportunity for cross-examination.124.122 Record for final permit.124.123 Filing of brief, 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 nb review.124.128 Delegation of authority; time

limitations.Appendix A to Part 124-Guide to

Decisionmaking under Part 124.Authority. Resource Conservation and

Recovery Act, 42 U.S.C. 6901 et seq.; SafeDrinking Water Act, 42 U.S.C. 300(f) et seq.;"Clean Water Act, 33 U.S.C. 1251 et seq.; andClean Air Act, 42 U.S.C. 1857 et seq.

Subpart A-General Program

Requirements

§ 124.1 Purpose and scope.

(a) This Part contains EPA proceduresfor issuing, modifying, revoking andreissuing, or terminating all RCRA, UIC,PSD and NPDES "permits" other thanRCRA and UIC "emergency permits"(see § § 270.61 and 144.34) and RCRA"permits by rule" (§ 270.60). The latterkinds of permits are governed by Part270. RCRA interim status and UICauthorization by rule are not "permits"and are covered by specific provisionsin Parts 144, Subpart C, and 270. ThisPart also does not apply to permitsissued, modified, revoked and reissuedor terminated by the Corps of Engineers.Those procedures are specified in 33CFR Parts 320-327.

(b) Part 124 is organized into sixsubparts. Subpart A contains generalprocedural requirements applicable toall permit programs covered by theseregulations. Subparts B through Fsupplement these general provisionswith requirements that apply to only oneor more of the programs. Subpart Adescribes the steps EPA will follow inreceiving permit applications, preparingdraft permits, issuing public notice,inviting public comment and holdingpublic hearings on draft permits.Subpart A also covers assembling an

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administrative record, responding to and specific procedural requirements for Procedure Act (APA), can be usedcomments, issuing a final permit PSD permits. Subpart D applies to instead of Subparts A through E indecision, and allowing for NPDES permits until an evidentiary appropriate cases.administrative appeal of the final permit hearing begins, when Subpart E (c) Part 124 offers an opportunity fordecision. Subpart B is reserved for procedures take over for EPA-issued three kinds of hearings: a public hearingspecific procedural requirements for NPDES permits and EPA-terminated under Subpart A, an evidentiary hearingRCRA permits. There are none of these RCRA permits. Subpart F, which is under Subpart E, and a panel hearingat present but they may be added in the based on the "initial licensing" under Subpart F. This chart describesfuture. Subpart C contains definitions provisions of the Administrative when these hearings are available for

each of the five permit programs.

HEARINGS AVAILABLE UNDER THIS PART

Subpart

Programs (A) (E) (F)

Public hearing Evidentiary hearing Panel hearing

RCRA ....................................................... On draft permit, at Director's discretion or on (1) Permit termination (RCRA section 3008) . (1) At RA's discretion in lieu of public hearingrequest (§ 124.12). (§§ 124.12 and 124.111(a)(3)).

(2) With NPDES evidentiary hearing (2) When consolidated with NPDES draft permit proc-(0 124.74(b)(2)). eased under Subpart F (@ 124.111(a)(1)(i)). ,

Uic ............................................................. On draft permit, at Director's discretion or on With NPDES evidentiary hearing (1) At RA's discretion in lieu of public hearingrequest (§ 124.12). (0 124.74(b)(2)). (§§ 124.12 and 124.111 (a)(3)).-

(2) When consolidated with NPOES draft permit proc-essed under Subpart F (§ 124.111(a)(1)(I)).

PSD ................ On draft permit, at Director's discretion or on Not available (§ 124.71(c)) ............... When consolidated with NPDES draft permit processedrequest (§ 124.12). under Subpart F it RA determnes that CAA one year

deadline will not be violated.NPDES (other than general permit) . On draft permit, at Director's discretion or on (1) On request to challenge any permit condi- (1) At RA's discretion when first decision on permit or

request (§ 124.12). tion or variance (§ 124.74). variance request (§ 124.111).(2) At RA's discretion for any 301(h) request (2) At RA's discretion when request for evidentiary

@ 124.64(b)). hearing is granted under § 124.75(a)(2)(§§ 124.74(c)(8) and 124.111(a)(2)).

(3) At RA's discretion for any 301(h) request@ 124.64(b)).

NPDES (general permit) ....................... On draft permit, at Director's discretion or on Not available (§ 124.71(a)) ..................................... At RA's discretion In lieu of public hearingrequest (§ 124.12). ( 124.111 (a)(3)).

404 ........................ On draft permit or on application when no Not available ( 124.71) ......................................... Not available (@ 124.111).draft permit, at Director's discretion or onrequest (@ 124.12).

(d) This Part is designed to allowpermits for a given facility under two ormore of the listed programs to beprocessed separately or together at thechoice of the Regional Administrator.This allows EPA to combine theprocessing of permits only whenappropriate, and not necessarily in allcases. The Regional Administrator mayconsolidate permit processing when thepermit applications are submitted, whendraft permits are prepared, or when finalpermit decisions are issued. This Partalso allows consolidated permits to besubject to a single public hearing under§ 124.12, a single evidentiary hearingunder § 124.75, or a single non-adversary panel hearing under § 124.120.Permit applicants may recommendwhether or not their applications shouldbe consolidated in any given case.

(e) Certain procedural requirementsset forth in Part 124 must be adopted byStatesin order to gain EPA approval tooperate RCRA, UIC, NPDES, and 404permit programs.These requirements arelisted in § § 123.25 (NPDES), 145.11(UIC), 233,26 (404), and 271.14 (RCRA)and signaled by the following words atthe end of the appropriate Part 124-section or paragraph heading:(applicable to State programs see§§ 123.25 (NPDES), 145.11 (UIC, 233.26

(404), and 271.14 (RCRA)). Part 124 doesnot apply to PSD permits issued by anapproved State.

(f) To coordinate decisionmakingwhen different permits will be issued byEPA and approved State programs, thisPart allows applications to be jointlyprocessed, joint comment periods andhearings to be held, and final permits tobe issued on a cooperative basiswhenever EPA and a State agree to takesuch steps in general or in individualcases. These joint processing .agreements may be provided in theMemorandum of Agreement developedunder § § 123.24 (NPDES), 145.24 (UIC),233.24 (404), and 271.8 (RCRA).

§ 124.12 Definitiong.(a) In addition to the definitions given

in § § 122.2 and 123.2 (NPDES), 144.3 and145,2 (UIC); 233.3 (404), and 270.2 and271.2 (RCRA), the definitions listedbelow apply to-this Part, except for PSDpermits which are governed by thedefinitions in §124.41. Terms not definedin this section have the meaning givenby the appropriate Act.

Administrator means theAdministrator of the U.S. EnvironmentalProtection Agency, or an authorizedrepresentative.

Applicable standards and limitations(NPDES) means all State, interstate, andFederal standards and limitations towhich a "discharge" or a related activityin subject under the CWA, including"effluent limitations," water qualitystandards, standards of performance,toxic effluent standards or prohibitions,"best management practices," andpretreatment standards under Sections301, 302, 303, 304, 306, 307, 308, 403, and405 of CWA.

Application means the EPA standardnational forms for applying for a permit,including any additions, revisions ormodifications to the forms; or formsapproved by EPA for use in "approvedStates," including any approvedmodifications or revisions. For RCRA,application also includes theinformation required by the Directorunder §270.14-270.29 [contents of Part Bof the RCRA application].

Appropriate Act and regulationsmeans the Clean Water Act (CWA); theSolid Waste Disposal Act, as amendedby the Resource Conservation RecoveryAct (RCRA); or Safe Drinking Water Act(SDWA), whichever is applicable; andapplicable regulations promulgatedunder those statutes. In the case of an"approved State program" appropriate




Act and regulations includes programrequirements.

CWA means the Clean Water Act(formerly referred to as the FederalWater Pollution Control Act of FederalPollution Control Act Amendments of1972) Pub. L. 92-500, as amended by Pub.L. 95-217 and Pub. L. 95-:576; 33 U.S.C.1251 et seq.

Director means the RegionalAdministrator or the State Director, asthe context requires, or an authorizedrepresentative. When there is no"approved State program," and there isan EPA administered program,"Director"means the RegionalAdministrator. When there is anapproved State program, "Director"normally means the State Director. Insome circumstances, however, EPAretains the authority to take certainactions even when there is an approvedState program. (For example, when EPAhas issued an NPDES permits prior tothe approval of a State program, EPAmay retain jurisdiction over that permitafter program approval; see § 123.1) Insuch cases, the term ."Director meansthe Regional Administrator and not theState Director.• Draft permit means a document

prepared under §124.6 indicating theDirector's tentative decision to issue Ordeny, modify, revoke and reissue,terminate, or reissue a "permit." Anotice of intent to terminate a permitand a notice of intent to deny a permitas discussed in § 124.5, are types of"draft permits." A denial of a request formodification, revocation and reissuanceor termination, as discussed in §124.5, isnot a "draft permit." A "proposalpermit" is not a "draft permit."

EPA ("EPA") means the United States"Environmental Protection Agency."

Facility or activity means any "HWMfacility," UIC "injection well," NPDES"point source," or State 404 dredge or fillactivity, or any other facility or activity(including land or appurtenancesthereto) that is subject to regulationunder the RCRA, UIC, NPDES, or 404programs.

General Permit (NPDES and 404)means an NPDES or 404 "permit"authorizing a category of dischargesunder the CWA within a geographicalarea. For NPDES, a general permitmeans a permit issued under § 122.28.For 404, a general permit means-a permitissued under § 233.37.

Interstate Agency means an agency oftwo or more States established by orunder an agreement or compactapproved by the Congress, or. any otherag.ency 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."

Major Facility means any RCRA, UIC,NPDES, or 404 "facility or activity"classified as such by the RegionalAdministrator, or, in the case of"approved State programs," theRegional Administrator in conjunctionwith the State Director.

NPDES means National PollutantDisdharge Elimination System.

Owner or Operator means owner oroperator of any "facility or activity"subject to regulation under theRCRA,UIC, NPDES, or 404 programs.

Permit means an authorization,license, or equivalent control documentissued by EPA or an "approved State" toimplement the requirements of this Partand Parts 122, 123, 144, 145, 233, 270, and271. "Permit" includes RCRA "permit byrule" (Section 270.60), UIC area permit(Section 144.33), NPDES or 404 "generalpermit" (Sections 270.61, 144.34, and233.38). Permit does not include RCRAinterim status (Section 270.70), UICauthorization by rule (Section 144.21), orany permit which has not yet been thesubject of final agency action, such as a"draft permit" or a "proposed permit."

Person means an individual,associaton, partnership, corporation,municipality, State or Federal agency, oran agency or employee thereof.

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, 42 U.S.C. Section 6901et seq).


Schedule of compliance means aschedule of remedial measures includedin a "permit," including an enforceablesequence of interim requirements (forexample, actions, operations, ormilestone events) leading to compliancewith the "appropriate Act andregulations."

SDWA means the Safe DrinkingWater Act (Pub. L. 95-923, as amendedby Pub. L. 95-1900; 42 U.S.C. 300f et seq).

Section 404 program or State 404program or 404 means an "approvedState program" to regulate the"discharge of dredged material" and the"discharge of fill material" underSection 404 of the Clean Water Act in"State regulated waters."


State means any of the 50 states, theDistrict of Columbia, Guam, the "Commonwealth of Puerto Rico, theVirgin Islands, American Samoa, theTrust Territory of the Pacific Islands(except in the case of RCRA), and theCommonwealth Northern MarianaIslands (except in.the case of CWA).

State Director means the chiefadministrative officer of any State orinterstate agency operating an"approved program," or the delegatedrepresentative of the state Director. Ifresponsibility is divided among two ormore State or interstate agencies, "StateDirector" means the chief administrativeofficer of the State or interstate agencyauthorized to perform the particularprocedure or function to which referenceis made.

UIC means the Underground InjectionControl program under Part C of theSafe Drinking Water Act, including an"approved program."

Variance (NPDES) means anymechanism or provision under section301 or 316 of CWA or under 40 CFR Part125, or in the applicable "effluentlimitations guidelines" which allowsmodification to or waiver of thegenerally applicable effluent limitationrequirements or time deadlines of CWA.This includes provisions which allowthe establishment of alternativelimitations based on fundamentallydifferent factors or-on sections 301(c),301(g). 301(h), 301(i), or 316(a) of CWA.

(b) For the purposes of Part 124, theterm "Director" means the StateDirector or Regional Administrator andis used when the accompanyingprovision is required of EPA-administered programs and of Stateprograms under § § 123.25 (NPDES),145.11 (UIC), 233.26 (404), and 271.14(RCRA). The term "RegionalAdministrator" is used when theaccompanying provision appliesexclusively to EPA-issued permits and is-not applicable to State programs underthese sections. While States are notrequired to implement these latterprovisions, they are not precluded fromdoing so, notwithstanding use of theterm "Regional Administrator."

(c) The term "formal hearing" meansany evidentiary hearing under Subpart Eor any panel hearing under Subpart Fbut does not mean a public hearingconducted under § 124.12.

§ 124.3 Application for a permit(a) Applicable to State programs, see

§§ 123.25 (NPDES, 145.11 (UC), 233.26(404), and 271.14 (RCRA). (1) Any personwho requires a permit under the RCRA,UIC, NPDES, or PSD programs shallcomplete, sign, and submit to the




Director an application for each permitrequired under § § 270.1 (RCRA), 144.1(UIC), 40 CFR 52.21 (PSD), and 122.1(NPDES). Applications are not requiredfor RCRA permits by rule (§ 270.60),underground injections authorized byrule (§ 144.21-26), NPDES generalpermits (§ 122.28) and 404 generalpermits (§ 233.37).

(2) The Director Shall not begin theprocessing of a permit until theapplicant has fully complied with theapplication requirements for that permit.See §§ 270.10, 270.13 (RCRA), 144.31(UIC), 40 CFR 52.21 (PSD), and 122.21(NPDES).

(3] Permit applications (except forPSD permits) must comply with thesignature and certification requirementsof §§ 122.22 (NPDES), 144.32 (UIC), 233.6(404), and 270.11 (RCRA).

(b) [Reserved.](c) The Regional Administrator shall

review for completeness everyapplication for an EPA-issued permit.Each application for an EPA-issuedpermit submitted by a new HWM,facility, a new UIC injection well, amajor PSD stationary source or majorPSD modification, or an NPDES newsource or NPDES new discharger shouldbe reviewed for completeness by the*Regional Administrator within 30 daysof its receipt. Each application for anEPA-issued permit submitted by anexisting HWM facility (both Parts A andB of the application), existing injectionwell or existing NPDES source should bereviewed for completeness within 60days of receipt. Upon completing thereview, the Regional Administrator shallnotify the applicant in writing whetherthe application is complete. If theapplication is incomplete, the RegionalAdministrator shall list the informationnecessary to make the applicationcomplete. When the application is for anexisting HWM facility, an existing UICinjection well or an existing NPDESsource, the Regional Administrator shallspecify in the notice of deficiency a date'for submitting the necessaryinformation. The Regional Administratorshall notify the applicant that theapplication is complete upon receivingthis information. After the application iscompleted, the Regional Administratormay request additional information froman applicant but only when necessary toclarify, modify, or supplementpreviously submitted material. Requestsfor such additional information will notrender an application incomplete.

(d) If an applicant fails or refuses tocorrect deficiencies in the application,the permit may be denied andappropriate enforcement actions may betaken under the applicable statutoryprovision including RCRA section 3008,

SDWA sections 1423 and 1424, CAAsection 167, and CWA sections 308, 309,402(h), and 402(k).

(e) If the Regional Administratordecides that a site visit is necessary forany reason in conjunction with theprocessing of an application, he or sheshall notify the applicant and a dateshall be scheduled.

(f) The effective date of an applicationis the date on which the RegionalAdministrator notifies the applicant thatthe application is complete as providedin paragraph (c) of this section.

(g) For each application from a majornew HWM facility, major new UICinjection well, major NPDES newsource, or major NPDES new discharger,the Regional Administrator shall, nolater than the effective date of theapplication, prepare and mail to the,Applicant a project decision schedule.(This paragraph does not apply to PSDpermits.) The schedule shall specifytarget dates by which the RegionalAdministrator intends to:

(1) Prepare a draft permit;(2) Give public notice;(3) Complete the public comment

period, including any public hearing;(4) Issue a final permit; and(5] In the case of an NPDES permit,

complete any formal proceedings underSubparts E or F.

§ 124.4 Consolidation of permitprocessing.

(a)(1) Whenever a facility or activityrequires a permit under more than onestatute covered by these regulations,processing of two or more applicationsfor those permits may be consolidated.The first step in consolidation is toprepare each draft permit at the sametime.

(2) Whenever draft permits areprepared at the same time, thestatements of basis (required under§ 124.7 for EPA-issued permits only) orfact sheets (§ 124.8), administrativerecords (required under § 124.9 for EPA-issued permits only), public commentperiods (§ 124.10), and any publichearings (§ 124.12) on those permitsshould also be consolidated. The finalpermits may be issued together. Theyneed not be issued together if in thejudgment of the Regional Administratoror State Director(s), joint processingwould result in unreasonable delay inthe issuance of one or more permits.

(b) Whenever an existing facility oractivity requires additional permitsunder one or more of the statutescovered by these regulations, thepermitting authority may coordinate theexpiration date(s) of the new permit(s)with the expiration date(s) of theexisting permit(s) so that all permits

expire simultaneously. Processing of thesubsequent applications for renewalpermits may then be consolidated.

(c) Processing of permit applicationsunder paragraph (a) or (b) of this sectionmay be consolidated as follows:

(1) The Director may consolidatepermit processing at his or herdiscretion whenever a facility or activityrequires all permits either from EPA orfrom an approved State.

(2) The Regional Administrator andthe State Director(s) may agree toconsolidate draft permits whenever afacility or activity requires permits fromboth EPA and an approved State.

(3) Permit applicants may recommendwhether or not the processing of theirapplications should be consolidated.

(d) Whenever permit processing isconsolidated and the RegionalAdministrator invokes the "initiallicensing" provisions of Subpart F for anNPDES, RCRA, or UIC permit, anypermit(s) with which that NPDES, RCRAor UIC permit was consolidated shalllikewise be processed under Subpart F.

(e) Except with the written consent ofthe permit applicant, the RegionalAdministrator shall not consolidateprocessing a PSD permit with any otherpermit under paragraphs (a) or (b) ofthis section or process a PSD permitunder Subpart F as provided inparagraph (d) of this section when to doso would delay issuance of the PSDpermit more than one year from theeffective date of the application under§ 124.3(f).

§ 124.5 Modification, revocation andreissuance, or termination of permits.

(a) (Applicable to State programs, see§§ 123.25 (NPDES), 145.11 (UIC), 233.26(404), and 271.14 (RCRA)). Permits (otherthan PSD permits) may be modified,revoked and reissued, or terminatedeither at the request of any interestedperson (including the permittee) or uponthe Director's initiative. However,permits may only be modified, revokedand reissued, or terminated for thereasons specified'in §§ 122.62 or 122.64(NPDES), 144.39 or 144.40 (UIC), 233.14or 233.15 (404), and 270.41 or 270.43(RCRA). All requests shall be in writingand shall contain facts or reasonssupporting the request.

(b) If the Director decides the requestis not justified, he or she shall send therequester a brief written response givinga reason for the decision. Denials ofrequests for modification, revocationand reissuance, or termination are notsubject to public notice, comment, orhearings. Denials by the RegionalAdministrator may be informallyappealed to the Administrator by a

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letter briefly setting forth the relevantfacts. The Administrator may direct theRegional Administrator to beginmodification, revocation and reissuance,or termination proceedings underparagraph (c) of this section. The appealshall be considered denied if theAdministrator takes no action on theletter within 60 days after receiving it.This informal appeal is, under 5 U.S.C.§ 704, a prerequisite to seeking judicialreview of EPA'action in denying arequest for modification, revocation andreissuance, or termination.

(c) (Applicable to State programs, see§§ 123.25 (NPDES), 145.11 (UIC), 233.26(404), and 271.14 (RCRA)). (1) If theDirector tentatively decides to modify orrevoke and reissue a permit under§ § 122.62 (NPDES), 144.39 (UIC), 233.14(404), or 270.41 (RCRA), he or she shallprepare a draft permit under § 124.6incorporating the proposed changes. TheDirector may request additionalinformation and, in the case of amodified permit, may require thesubmission of an updated application. Inthe case of revoked and reissuedpermits, the Director shall require thesubmission of a new application.

(2) In a permit modification under thissection, only those conditions to bemodified shall be reopened when a newdraft permit is prepared. All otheraspects of the existing permit shallremain in effect for the duration of theunmodified permit. When a permit isrevoked and reissued under this section,the entire permit is reopened just as ifthe permit had expired and was beingreissued. During any revocation andreissuance proceeding the permitteeshall comply with all conditions of theexisting permit until a new final permitis reissued.

(3) "Minor modifications" as definedin Sections 122.63 (NPDES), 144.41 (UIC),233.16 (404), and 270.42 (RCRA) are.notsubject to the requirements of thissection.

(d) (Applicable to State programs, seeSections 123.25 (NPDES), 145.11 (UIC),233.26 (404), and 271.14 (RCRA)). If theDirector tentatively decides to terminatea permit under Sections 122.64 (NPDES),144.40 (UIC), 233.15 (404), or 270.43(RCRA), he or she shall issue a notice ofintent to terminate. A notice of intent toterminate is a type of draft permit whichfollows the same procedures as anydraft permit prepared under Section124.6. In the case of EPA-issued permits,a notice of intent to terminate shall notbe issued if the Regional Administratorand the permittee agree to terminationin the course of transferring permitresponsibility to an approved Stateunder Sections 123.24(b)(1) (NPDES),145.24(b)(1) (UIC), or 271.8(b)(6) (RCRA).

(e) When EPA is the permittingauthority, all draft permits (includingnotices of intent to terminate) preparedunder this section shall be based on theadministrative record as defined inSection 124.9.

(f) (Applicable to State programs, seeSection 233.26 (404)). Any request by thepermittee for modification to an existing404 permit (other than a request for aminor modification as defined in Section233.16 (404)) shall be treated as a permitapplication and shall be processed inaccordance with all requirements ofSection 124.3.

(g)(1) (Reserved for PSD ModificationProvisions)

(2) PSD permits may be terminatedonly by rescission under § 52.21(w) orby automatic expiration knder § 52.21(r).Applications for rescission shall beprecessed under § 52.21(w) and are notsubject to this Part.

§ 124.6 Draft permits.(a) (Applicable to State programs, see

Sections 123.25 (NPDES), 145.11 (UIC),233.26 (404), a'd 271.14 (RCRA).) Oncean application is complete, the Directorshall tentatively decide whether toprepare a draftpermit (except in thecase of State section 404 permits forwhich no draft permit is required underSection 233.39) or to deny theapplication.

(b) If the Director tentatively decidesto deny the permit application, he or she-shall issue a notice of intent to deny. Anotice of intent to deny the permitapplication is a type of.draft permitwhich follows the same procedures asany draft permit prepared under thissection. See Section 124.6(e). If theDirector's final decision (Section 124.15)is that.the tentative decision to deny thepermit application was incorrect, he orshe shall withdraw the notice of intentto deny and proceed to prepare a draftpermit under paragraph (d) of thissection.

(c) (Applicable to State programs, seeSections 123.25 (NPDES) and 233.26(404).) If the Director tentatively decidesto issue an NPDES or 404 general permit,he or she shall prepare a draft generalpermit under paragraph (d) of thissection.

(d) (Applicable to State programs, seeSections 123.25 (NPDES, 145.11 (UIC),233.26 (404), and 271.14 (RCRA).) If theDirector decides to prepare a draftpermit, he or she shall prepare a draftpermit that contains the followinginformation:

(1) All conditions under Sections122.41 and 122.43 (NPDES), 144.51 and144.42 (UIC 233.7 and 233.8 (404, or270.30 and 270.32 (RCRA) (except forPSD permits)));

(2) All compliance schedules underSection 122.47 (NPDES), 144.53 (UIC),233.10 (404), or 270.33 (RCRA) (exceptfor PSD permits);

(3) All monitoring requirements underSection 122.48 (NPDES), 144.54 (UIC),233.11 (404), or 270.31 (RCRA) (exceptfor PSD permits); and.

(4) For:(i) RCRA permits, standards for

treatment, storage, and/or disposal andother permit conditions under Section270.30;

(ii) UIC permits, permit conditionstinder Section 144.52;

(iii) PSD permits, permit conditionsunder 40 CFR Section 52.21;

(iv) 404 permits, permit conditionsunder Sections 233.7 and 233.8;

(v) NPDES permits, effluentlimitations, standards, prohibitions andconditions under Section 122.41 and122.42, including when applicable anyconditions certified by a State agencyunder Section 124.55, and all variancesthat are to be included under Section124.63.

(e) (Applicable to State programs, seeSections 123.25 (NPDES), 145.11 (UIC),233.26 (404), and 271.14 (RCRA).) Alldraft permits prepared by EPA underthis section shall be accompanied by astatement of basis (Section 124.7) or factsheet (Section 124.8), and shall be basedon the administrative record (Section124.9), publicly noticed (Section 124.10)and made available for public comment(Section 124.11). The RegionalAdministrator shall give notice ofopportunity for a public hearing (Section124.12), issue a final decision (Section124.15) and respond to comments(Section 124.17). For RCRA, UIC or PSDpermits, an appeal may be taken underSection 124.19 and, for NPDES permits,an appeal may be taken under Section124.74. Draft permits prepared by a Stateshall be accompanied by a fact sheet ifrequired under § 124.8.

§ 124.7 Statement of basis.EPA shall prepare a statement of

basis for every draft permit for which afact sheet under § 124.8 is not prepared.The statement of basis shall brieflydescribe the derivation of the conditionsof the draft permit and the reasons forthem or, in the case of notices of intentto deny or terminate, reasons supportingthe tentative decision. The statement ofbasis shall be sent to the applicant and,on request, to any other person.

§ 124.8 Fact sheet.(Applicable to State programs, see

§§ 123.25 (NPDES, 145.11 (UIC, 233.26(404), and 271.14 (RCRA).)

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(a) A fact sheet shall be prepared forevery draft permit for a major HWM,UIC, 404, or NPDES facility or activity,for every 404 and NPDES general permit(§ § 233.37 and 122.28), for every NPDESdraft permit that incorporates a varianceor requires an explanation under§ 124.56(b), and for every draft permitwhich the Director finds is the subject ofwidespread public interest or raisesmajor issues. The fact sheet shall brieflyset forth the principal facts and thesignificant factual, legal, methodologicaland policy questions considered inpreparing the draft permit. The Directorshall send this fact sheet to theapplicant and, on request, to any otherperson.

(b) The fact sheet shall include, whenapplicable:

(1) A brief description of the type offacility or activity which is the subjectof the draft permit;

(2) The type and quantity of wastes,fluids, or pollutants which are proposedto be or are being treated, stored,disposed of, injected, emitted, ordischarged.

(3) For a PSD permit, the degree ofincrement consumption expected toresult from operation of the facility oractivity.

(4) A brief summary of the basis forthe draft permit conditions includingreferences to applicable statutory orregulatory provisions and appropriatesupporting references to theadministrative record required by§ 124.9 (for EPA-issued permits);

(5) Reasons why any requestedvariances or alternatives to requiredstandards do or do not appear justified;

(6) A description of the procedures forreaching a final decision on the draft.permit including:

(i) The beginning and ending dates ofthe comment period under § 124.10 andthe address where comments will'bereceived;

(ii) Procedures for requesting ahearing and the nature of that hearing;and

(iii) Any other procedures by whichthe public may participate in the finaldecision.

(7) Name and telephone number of aperson to contact for additionalinformation.

(8) For NPDES permits, provisionssatisfying the requirements of § 124.56.

§ 124.9 Administrative record for draftpermits when EPA is the permittingauthority.

(a) The provisions of a draft permitprepared by EPA under § 124.6 shall bebased on the administrative recorddefined in this section.

(b) For preparing a draft permit under§ 124.6, the record shall consist of:

(1) The application, if required, andany supporting data furnished by theapplicant;

(2) The draft permit or notice of intentto deny the application or to terminatethe permit;

(3) The statement of basis (§ 124.7) orfact sheet (§ 124.8);

(4) All documents cited in thestatement of basis or fact sheet; and

(5) Other documents contained in thesupporting file for the draft permit.

(6) For NPDES new source draftpermits only, any environmentalassessment, environmental impactstatement (EIS), finding of no significantimpact, or environmental informationdocument and any supplement to an EISthat may have been prepared. NPDESpermits other than permits to newsources as well as all RCRA, UIC andPSD permits are not subject to theenvironmental impact statementprovisions of section 102(2)(C) of theNational Environmental Policy Act, 42U.S.C. 4321.

(c) Material readily available at theissuing Regional Office or publishedmaterial that is generally available, andthat is included in the administrativerecord under paragraphs (b) and (c) ofthis section, need not be physicallyincluded with the rest of the record aslong as it is specifically referred to in thestatement of basis or the fact sheet.

(d) This section applies to all draftpermits when public notice was givenafter the effective date of theseregulations.

§ 124.10 Public notice of permit actionsand public comment period.

(a) Scope. (1) The Director shall givenpublic notice that the following sectionshave occurred:

(i) A permit application has beententatively denied under Section124.6(b);

(ii) (Applicable to State programs, seeSections 123.25 (NPDES), 145.11 (UIC,233.26 (404), and 271.14 (RCRA)]. A draftpermit has been prepared under Section124.6(d);

(iii) (Applicable to State programs, seeSections 123.25 (NPDES, 145.11 (UIC),233.26 (404) and 271.14 (RCRA)). Ahearing has been scheduled underSection 124.12, Subpart E, or Subpart F;

(iv) An appeal has been granted underSection 124.19(c);

(v) (Applicable to State programs, seeSection 233.26 (404)). A State section 404application has been received in caseswhen no draft permit will be prepared(see Section 233.39);.or

(vi) An NPDES new source /determination has been made underSection 122.29.

(2) No public notice is required whena request for permit modification,revocation and reissuance, ortermination is denied under Section124.5(b). Written notice of that denialshall be given to the requester and to thepermittee.

(3) Public notices may describe morethan one permit or permit actions.

(b) Timing (applicable to Stateprograms, see Sections 123.25 (NPDES)145.11 (UIC), 233.28( 404, and 271.14(RCRA)). (1) Public notice of thepreparation of a draft permit (includinga notice of intent to deny a permitapplication) required under paragraph(a) of this section shall allow at least 30days for public comment. For RCRApermits only, public notice shall allow atleast 45 days for public comment. ForEPA-issued permits, if the RegionalAdministrator determines under 40 CFRPart 6, Subpart F that an EnvironmentalImpact Statement (EIS) shall beprepared for an NPDES new source,public notice of the draft permit shallnot be given until after a draft EIS isissued.

(2) Public notice of a public hearingshall be given at least 30 days before thehearing. (Public notice of the hearingmay be given at the same time as publicnotice of the draft permit and the twonotices may be combined.)

(c) Methods (applicable to Stateprograms, see §§ 123.25 (NPDES, 145.11(UIC), 233.26 (404), and 271.14 (RCRA)).Public notice of activities described inparagraph (a)(1) of this section shall begiven by the following methods:

(1) By mailing a copy of a notice to thefollowing persons (any person otherwiseentitled to receive notice under thisparagraph may waive his or her rights toreceive notice for any classes andcategories of permits);.

(i) The applicant (except for NPDESand 404 general permits when there isno applicant);

(ii) Any other agency which theDirector knows has issued or is requiredto issue a RCRA, UIC, PSD, NPDES or404 permit for the same facility oractivity (including EPA when the draftpermit is prepared by the State);

(iii) Federal and State agencies withjurisdiction over fish, shellfish, andwildlife resources and over coastal zonemanagement plans, the AdvisoryCouncil on Historic Preservation, StateHistoric Preservation Officers, and otherappropriate government authorities,including any affected States;

(iv) For NPDES and 404 permits only,any State agency responsible for plan

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development under CWA section208(b)(2), 208(b)(4) or 303(e) and the U.S.Army Corps of Engineers, the U.S. Fishand Wildlife Service and the NationalMarine Fisheries Service;

(v) For NPDES permits only, any useridentified in the permit application of aprivately owned treatment works;

(vi) Fo 404 permits only, anyreasonably ascertainable owner ofproperty adjacent to the regulatedfacility or activity and the RegionalDirector of the Federal AviationAdministration if the discharge involvesthe construction of structures which mayaffect aircraft operations or for purposesassociated with seaplane operations;

(vii) For PSD permits only, affectedState and local air pollution controlagencies, the chief executives of the cityand county where the major stationarysource or major modification would belocated, any comprehensive regionalland use planning agency and any State,Federal Land Manager, or IndianGoverning Body whose lands may beaffected by emissions from the regulatedactivity;

(viii) Persons on a mailing listdeveloped by:

(A) Including those who request inwriting to be on the list;

(B) Soliciting persons for "area lists"from participants in past permitproceedings in that area; and

(C) Notifying the public of theopportunity to be put on the mailing listthrough periodic publication in thepublic press and in such publications asRegional and State funded newsletters,environmental bulletins, or State lawjournals. (The Director may update themailing list from time to time byrequesting written indication ofcontinued interest from those listed. TheDirector may delete from the list thename of any person who fails to respondto such a request.)

(2) For major permits and NPDES and404 general permits, publication of anotice in a daily or weekly newspaperwithin the area affected by the facilityor activity; and for EPA-issued NPDESgeneral permits, in the Federal Register;

[Note.-The Director is encouraged toprovide as much notice as possible of theNPDES or 404 draft general permit to thefacilities or activities to be covered by thegeneral permit.]

(3) When the program is beingadministered by an approved State, in amanner constituting legal notice to thepublic under State law; and

(4) Any other method reasonablycalculated to give actual notice of theaction in question to the personspotentially affected by it, including

press releases or any other forum ormedium to elicit public participation.

(d) Contents (applicable to Stateprograms, see §§ 123.25 (NPDES), 145.11(UIC), 233.26 (404), and 271.14 (RCRAI).(1) Allpublic notices. All public noticesissued under this Part shall contain thefollowing minimum information:

(i) Name and address of the officeprocessing the permit action for whichnotice is being given;

(ii) Name and address of the permitteeor permit applicant and, if different, ofthe facility or activity regulated by thepermit, except in the case of NPDES and404 draft general permits under§ § 122.28 and 233.37;

(iii) a brief description of the businessconducted at the facility or activitydescribed in the permit application orthe draft permit, for NPDES or 404general permits when there is noapplication.

(iv) Name, address and telephonenumber of a person from whominterested persons may obtain furtherinformation, including copies of the draftpermit or draft general permit, as thecase may be, statement of basis or factsheet, and the application; and

(v) A brief description of the commentprocedures required by § § 124.11 and124.12 and the time and place of anyhearing that will be held, including astatement of procedures to request ahearing (unless a hearing has alreadybeen scheduled) and other proceduresby which the public may participate inthe final permit decision.

(vi) For EPA-issued permits, thelocation of the administrative recordrequired by § 124.9, the times at whichthe record will be open' for publicinspection, and a statement that all datasubmitted by the applicant is availableas part of the administrative record.

(vii) For NPDES permits only, ageneral description of the location ofeach existing or proposed dischargepoint and the name of the receivingwater. For draft general permits, thisrequirement will be satisfied by a mapor description of the permit area. ForEPA-issued NPDES permits only, if thedischarge is from a new source, astatement as to whether anenvironmental impact statement will beor has been prepared.

(viii) For 404 permits only,(A) The purpose of the proposed

activity (including, in the case of fillmaterial, activities intended to beconducted on the fill), a description ofthe type, composition, and quantity ofmaterials to be discharged and means ofconveyance; and any proposedconditions and limitations on thedischarge;

(B) The name and water.qualitystandards classification, if applicable, ofthe receiving waters into which thedischarge is proposed, and a generaldiscription of the site of each proposeddischarge and the portions of the siteand the discharges which are withinState regulated waters;

(C) A description of the anticipatedenvironmental effects of activitiesconducted under the permit;

(D) References to applicable statutoryor regulatory authority; and

(E) Any other available informationwhich may assist the public inevaluating the likely impact of theproposed activity upon the integrity ofthe receiving water.

(ix) Any additional informationconsidered necessary or proper.

(2) Public notices for hearings. Inaddition to the general public noticedescribed in paragraph (d)(1) of thissection, the public notice of a hearingunder § 124.12, Subpart E, or Subpart Fshall contain the following information:

(i) Reference to the date of previouspublic notices relating to the permit;

(ii) Date, time, and place of thehearing;

(iii) A brief description of the natureand purpose of the hearing, including theapplicable rules and procedures; and

(iv) For 404 permits only, a summaryof major issues raised to date during thepublic comment period.

(e) (Applicable to State programs, see§§ 123.25 (NPDES), 145.11 (UIC, 233.26(404), and 271.14 (RCRA)). In addition tothe general public notice described inparagraph (d)(1) of this section, allpersons identified in paragraphs (c)(1)(i), (ii), (iii), and (iv) of this section shallbe mailed a copy of the fact sheet orstatement of basis (for EPA-issuedpermits), the permit application (if any)and the draft permit (if any).

§ 124.11 Public comments and requestsfor public hearings.

(Applicable to State programs, see§§ 123.25 (NPDES, 145.11 (UIC), 233.26(404),and 271.14 (RCRA).)

During the public comment periodprovided under § 124.10, any interestedperson may submit written comments onthe draft permit or the permitapplication for 404 permits when nodraft permit is required (see § 233.39)and may request a public hearing, if nohearing has already been scheduled. Arequest for a public hearing shall be inwriting and shall state the nature of theissues proposed to be raised in thehearing. All comments shall beconsidered in making the final decisionand shall be answered as provided in§ 124.17.

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§ 124.12 Public hearings.(a) (Applicable to State programs, see

§§ 123.25 (NPDES, 145.11 (UIC), 233.26(404), and 271.14.(RCRA).) (1) TheDirector shall hold a public hearingwhenever he or she finds, on the basisof requests, a significant degree ofpublic interest in a draft permit(s);

(2) The Director may also hold apublic hearing at his or her discretion,whenever for instance, such a hearingmight clarify one or more issuesinvolved in the permit decision;

(3) For RCRA permits only, (i) theDirector shall hold a public hearingwhenever he or she receives writtennotice of opposition to a draft permit -and a request for a hearing within 45days of public notice under§ 124.10(b)(1); (ii) whenever possible theDirector shall schedule a hearing underthis section at a.location convenient tothe nearest population center to theproposed facility;

(4) Public notice of the hearing shallbe given as specified in § 124.10.• (b) Whenever a public hearing will be

held and EPA is the permitting authoriy,the Regional Administrator shalldesignate a Presiding Officer for thehearing who shall be responsible for itsscheduling and orderly conduct.

(c) Any person may submit oral orwritten statements and data concerningthe draft permit. Reasonable limits maybe set upon the time allowed for oralstatements, and the submission ofstatements in writing may be required.The public comment period under§ 124.10 shall automatically be extendedto the close of any public hearing underthis section. The hearing officer mayalso extend the comment period by sostating at the hearing.

(d) A tape recording or writtentranscript of the hearing shall be madeavailable to the public.

(e) At his or her discretion, theRegional Administrator may specify thatRCRA and UIC permits be processedunder the procedures in Subpart F.

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

All persons, including applicants, whobelieve any condition of a draft permit isinappropriate or that the Director'stentative decision to deny anapplication, terminate a permit, orprepare a draft permit is inappropriate,must raise all reasonably'ascertainableissues and submit all reasonablyavailable arguments and factual groundssupporting their position, including allsupporting material, by the close of thepublic comment period (including anypublic hearing) under § 124.10. Allsupporting materials shall be included in

full and may not be incorporated byreference, unless they are already partof the administrative record in the sameproceeding, or consist of State orFederal statutes and regulations,. EPAdocuments of general applicability, orother generally available referencematerials. Commenters shall makesupporting material not already includedin the administrative record available toEPA as directed by the RegionalAdministrator. (A comment periodlonger than 30 days will often benecessary in complicated proceedings togive commenters a reasonableopportunity to comply with therequirements of this section.Commenters may request longercomment periods and they should befreely established under § 124.10 to theextent they appear necessary.)

§ 124.14 Reopening of the publiccomment period.

(a) If any data information orarguments submitted during the publiccomment period, including informationor arguments required under § 124.13,appear to raise substantial newquestions concerning a permit, theRegional Administrator may take one ormore of the.following actions:.

(1) Prepare a new draft permit,appropriately modified, under § 124.6;

(2) Prepare a revised statement ofbasis under § 124.7, a fact sheet orrevised fact sheet under § 124.8 andreopen the comment period under§ 124.14; or

(3) Reopen or extend the commentperiod under § 124.10 to give interestedpersons an opportunity to comment onthe information or arguments submitted.

(b) Comments filed during thereopened comment period shall belimited to the substantial. new questionsthat caused its reopening. The publicnotice under § 124.10 shall define thescope of the reopening.

c) For RCRA, UIC, or NPDES permits,the Regional Administrator may also, inthe circumstances described above,elect to hold further proceedings underSubpart F. This decision may becombined with any of the actionsenumerated in paragraph (a) of thissection.

(d) Public notice of any of the aboveactions shall be issued under § 124.10.

§ 124.15 Issuance and effective date ofpermit.

(a) After the close of the publiccomment period under § 124.10 on adraft permit, the Regional Administratorshall issue a final permit decision. TheRegional Administrator shall notify .theapplicant and each person who hassubmitted written comments or

requested notice of the final permitdecision. This notice shall includereference to the procedures forappealing a decision on a RCRA, UIC, orPSD permit or for contesting a decisionon an NPDES permit or a decision toterminate a RCRA permit. For thepurposes of this section, a final permitdecision means a final decision to issue,deny, modify, revoke and reissue, orterminate a permit.

(b) A final permit decision shallbecome effective 30 days after theservice of notice of the decision underparagraph (a) of this section, unless:

(1) A later effective date is specifiedin the decision; or

(2) Review is requested under § 124.19(RCRA, UIC, and PSD permits) or anevidentiary hearing is requested under§ 124.74 (NPDES permit and RCRApermit terminations); or

(3) No comments requested a changein the draft permit, in which case thepermit shall become effectiveimmediately upon issuance.

§ 124.16 Stays of contested permitsconditions.

(a) Stays. (1) If a request for review ofa RCRA or UIC permit under § 124.19 oran NPDES permit under § 124.74 or§ 124.114 is granted or if conditions of aRCRA or UIC permit are consolidatedfor reconsideration in ant evidentiaryhearing on an NPDES permit under§§ 124.74, 124.82 or 124.114, the effect ofthe contested permit conditions shall bestayed and shall not be subject tojudicial review pending final agencyaction. (No stay of a PSD ermit isavailable under this section.) If thepermit involves a new facility or newinjection well, new source, newdischarger or a recommencingdischarger, the applicant shall bewithout a permit for the proposed newfacility, injection well, source ordischarger pending final agency action.See also § 124.60.

(2) Uncontested conditions which arenot serverable from those contestedshall be stayed together with thecontested conditions. Stayed provisionsof permits for existing facilities,injection wells, and sources shall beidentified by the RegionalAdministrator. All other provisions ofthe permit for the existing facility,injection well, or source shall remainfully effective and enforceable.

(b) Stays based on cross effects. (1) Astay may be granted based on thegrounds that an appeal to theAdministrator under § 124.19 of onepermit may result in chianges to anotherEPA-issued permit only when each ofthe permits involved has been appealed

iii i




to the Administrator and he or she hasaccepted each appeal.

(2) No stay of an EPA-issued RCRA,UIC, or NPDES permit shall be grantedbased on the staying of any State-issuedpermit except at the discreUon of theRegional Administrator and only uponwritten request from the State Director.

(c) Any facility or activity holding anexisting permit must:

(1) Comply with the conditions of thatpermit during any modification orrevocation and reissuance proceedingunder § 124.5; and

(2) To the extent conditions of anynew permit are stayed under thissection, comply with the conditions ofthe existing permit which correspond tothe stayed conditions, unlesscompliance with the existing conditionswould be technologically incompatiblewith compliance with other conditionsof the new permit which have not beenstayed.

§ 124.17 Response to comments.(a) (Applicable to State programs, see

§§ 123.25 (NPDES), 145.11 (U1C), 233.26(404), and 271.14 (RCRA).) At the timethat any final permit decision is issuedunder § 124.15, the Director shall issue aresponse to comments. States are onlyrequired to issue a response tocomments when a final permit is issued.This response shall:

(1) Specify which provisions, if any, ofthe draft permit have been changed inthe final permit decision, and thereasons for the change; and

(2) Briefly describe and respond to allsignificant comments on the draft permitor the permit application (for section 404permits only) raised during the publiccomment period, or during any hearing.

(b) For EPA-issued permits, anydocuments cited in the response tocomments shall be included in theadministrative record for the finalpermit decision as defined in § 124.18. Ifnew points are raised or new materialsupplied during the public commentperiod, EPA may document its responseto those matters by adding newmaterials to the administrative record.

(c) (Applicable to State programs, see§§ 123.25 (NPDES), 145.11 (UIC), 233.26(404), and 271.14 (RCRA).) The responseto comments shall be available to thepublic.

§ 124.18 Administrative record for finalpermit when EPA Is the permittingauthority.

(a) The Regional Administrator shallbase final permit decisions under§ 124.15 on the administrative recorddefined in this section.

(b) The administrative record for anyfinal permit shall consist of the

administrative record for the draftpermit and:

(1) All comments received during thepublic comment period provided under§ 124.10 (including any extension orreopening under § .124.14);

(2) The tape or transcript of anyhearing(s) held under § 124.12;

(3) Any written materials submitted atsuch a hearing;

(4) The response to commentsrequired by § 124.17 and any newmaterial placed in the record under thatsection;

(5) For NPDES new source permitsonly, final environmental impactstatement and any supplement to thefinal EIS;

(6) Other documents contained in thesupporting file for the permit; and

(7) The final permit.(c) The additional documents required

under paragraph (b) of this sectionshould be added to the record as soonas possible after their receipt orpublication by the Agency. The recordshall be complete on the date the finalpermit is issued.

(d) This section applies to all finalRCRA, UIC, PSD, and NPDES permitswhen the draft permit was subject to theadministrative record requirements of§ 124.9 and to all NPDES permits whenthe draft permit was included in a publicnotice after October 12, 1979.

(e) Material readily available at theissuing Regional Office, or publishedmaterials which are generally availableand which are included in theadministrative record under thestandards of this section or of § 124.17("Response to comments"), need not bephysically included in the same file asthe rest of the record as long as it isspecifically referred to in the statementof basis or fact sheet or in the responseto comments.

§ 124.19 Appeal of RCRA, UIC, and PSDpermits.

(a) Within 30 days after a RCRA, UIC,or PSD final permit decision has beenissued under § 124.15, any person whofiled comments on that draft permit orparticipated in the public hearing maypetition the Administrator to review anycondition of the permit decision. Anyperson who failed to file comments orfailed to participate in the public hearingon the draft permit may petition foradministrative review only to the extentof the changes from the draft to the finalpermit decision. The 30-day periodwithin which a person may requestreview under this section begins withthe service of notice of the RegionalAdministrator's action unless a laterdate is specified in that notice. Thepetition shall include a statement of the

reasons supporting that review,including a demonstration that anyissues being raised were raised duringthe public comment period (includingany public hearing) to the extentrequired by these regulations and whenappropriate, a showing that thecondition in question is based on:

(1) A finding of fact or conclusion oflaw which is clearly erroneous, or

(2) An exercise of discretion or animportant policy consideration whichthe Administrator should, in his or herdiscretion, review.

(b) The Administrator may alsodecide on his or her initiative to reviewany condition of any RCRA, UIC, or PSDpermit issued under this Part. TheAdministrator must act under thisparagraph within 30 days of the servicedate of notice of the RegionalAdministrator's action.

(c) Within a reasonable time followingthe filing of the petition for review, theAdministrator shall issue an order eithergranting or denying the petition forreview. To the extent review is denied,the conditions of thie final permitdecision become final agency action.Public notice of any grant of review bythe Administrator under paragraph (a)or (b) of this section shall be given asprovided in § 124.10. Public notice shallset forth a briefing schedule for theappeal and shall state that anyinterested person may file an amicusbrief. Notice of denial of review shall besent only to the person(s) requestingreview.

(d) The Administrator may deferconsideration of an appeal of a RCRA orUIC permit under this section until thecompletion of formal proceedings underSubpart E or F relating to an NPDESpermit issued to the same facility oractivity upon concluding that:

(1) The NPDES permit is likely to raiseissues relevant to a decision of theRCRA or UIC appeals;

(2) The NPDES permit is likely to beappealed; and

(3) Either: (i) The interests of both thefacility or activity and the public are notlikely to be materially adverselyaffected by the deferral; or

(ii) Any adverse effect is outweighedby the benefits likely to result from aconsolidated decision on appeal.

(e) A petition to the Administratorunder paragraph (a) of this section is,under 5 U.S.C. § 704, a prerequisite tothe seeking of judicial review of the finalagency action.

(f)(1) For purposes of judicial reviewunder the appropriate Act, final agencyaction occurs when a final RCRA, UIC,or PSD permit is issued or denied byEPA and agency review procedures are

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exhausted. A final permit decision shallbe issued by the Regional •

Administrator: (i) When theAdministrator issues notice to theparties that review has been denied; (ii)when the Administrator issues adecision on the merits of the appeal andthe decision does not include a remandof the proceedings; or (iii) upon thecompletion of remand proceedings if theproceedings are remanded, unless theAdministrator's remand orderspecifically provides that appeal of theremand decision will be required toexhaust administrative remedies.

(2) Notice bf any final agency actionregarding a PSD permit shall promptly,be published in the Federal Register.

§ 124.20 Computation of time.(a) Any time period scheduled to

begin on the occurrence of an act orevent shall begin on the day after the actor event.

(b) Any time period scheduled tobegin before the occurrence of an act orevent shall be computed so that theperiod ends on the day before the act orevent.

(c) If the final day of any time periodfalls on a weekend or legal holiday, thetime period shall be extended to thenext working day.

(d) Whenever a party or interestedperson has the right or is required to actwithin a prescribed period after theservice of notice or other paper uponhim or her by mail, 3 days shall beadded to the prescribed time.

§'124.21 Effective date of Part 124.(a) Except for paragraph (b) and (c) of

this section, Part 124 will become-effective July 18, 1980. Because thiseffective date will precede theprocessing of any RCRA or UIC permits,Part 124 will apply injts entirety to allRCRA and UIC permits.

(b) All provisions of Part 124pertaining to the RCRA program willbecome effective on November 19, 1980.

(c) All provisions of Part 124pertaining to the UIC program willbecome effective July 18, 1980, but shallnot be implemented until the effectivedate of 40 CFR Part 146.

(d) This Part does not significantlychange the way in which NPDES permitsare processed. Since October 12, 1979,NPDES permits have been the subject toalmost identical requirements in therevised NPDES regulations which werepromulgated on June 7, 1979. See 44 FR32948. To the extent this Part changesthe revised NPDES permit regulations,those changes will take effect as to allpermit proceedings in progress on July 3,1980.

(e) This part also does notsignificantly change the way in whichPSD permits are processed. For the mostpart, these regulations will also apply toPSD proceedings in progress on July 18,1980. However, because it would bedisruptive to require retroactively aformal administrative record for PSDpermits issued without one, § § 124.9 and124.18 will apply to PSD permits forwhich draft permits were prepared afterthe effective date of these regulations.

Subpart B-Specific ProceduresApplicable to RCRA Permits-[Reserved]

Subpart C-Specific ProceduresApplicable to PSD Permits

§ 124.41 Definitions applicable to PSDpermits.

Whenever PSD permits are processedunder this Part, the following terms shallhave the following meanings:

"Administrator," "EPA," and"Regional Administrator" shall have themeanings set forth in § 124.2, exceptwhen EPA has delegated authority toadminister those regulations to anotheragency under the applicable subsectionof 40 CFR § 52.21, the term "EPA" shallmean the delegate agency and the term"Regionhl Administrator" shall meanthe chief administrative officer of thedelegate agency.

"Application" means an applicationfor a PSD permit.

"Appropriate Act and Regulations"means the Clean Air Act and applicableregulations promulgated under it.

"Approved program" means a Stateimplementation plan providing forissuance of PSD permits which has beenapproved by EPA under the Clean AirAct and 40 CFR Part 51. An "approvedState" is one administering an"approved program." "State Director" asused in § 124.4 means the person(s)responsible for issuing PSD permitsunder an approved program, or thatperson's delegated representative.

"Construction" has the meaning givenin 40 CFR 52.21.

"Director" means the RegionalAdministrator.

"Draft permit" shall have the meaningset forth in § 124.2.

"Facility or activity" means a "majorPSD stationary source" or "major PSDmodification."

"Federal Land Manager" has themeaning given in 40 CFR 52.21.

"Indian Governing Body" has themeaning given in 40 CFR 52.21.

"Major PSD modification" means a"major modification" as defined in 40CFR 52.21.

"Major PSD stationary source" meansa "major stationary source" as definedin 40 CFR 52.21(b)(1).

"Owner or operator" means the owneror operator of any facility or activitysubject to regulation under 40 CFR 52.21or by an approved State.

"Permit" or "PSD permit" means apermit issued under 40 CFR 52.21 or byan approved State.

"Person" includes an individual,corporation, partnership, association,State, municipality, political subdivisionof a State, and any agency, department,or instrumentality of the United Statesand any officer, agent or employeethereof.

"Regulated activity" or "activitysubject to regulation" means a "majorPSD stationary source" or "major PSDmodification."

"Site" means the land or water areaupon which a "major PSD stationarysource" or "major PSD modification" isphysically located or conducted,including but not limited to adjacentland used for utility systems; as repair,storage, shipping or processing areas; orotherwise in connection with the "majorPSD stationary source" or "major PSDmodification."

"State" means a State, the District ofColumbia, the Commonwealth.of PuertoRico, the Virgin Islands, Guam, andAmerican Samoa and includes theCommonwealth of the Northern MarianaIslands.

§ 124.42 Additional procedures for PSDpermits affecting Class I areas.

(a) The Regional Administrator shallprovide notice of any permit applicationfor a proposed major PSD stationarysource or major PSD modification theemissions from which would affect aClass I area to the Federal LandManager, and the Federal officialcharged with direct responsibility formanagement of any lands within sucharea. The Regional Adminfstrator shallprovide such notice promptly afterreceiving the application.

(b) Any demonstration which theFederal Land Manager wishes to presentunder 40 CFR § 52.21(q)(3), and anyvariances sought by an owner oroperator under § 52.21(q)(4) shall besubmitted in writing, together with anynecessary supporting analysis, by theend of the public comment period under§ § 124.10 or 124.118. (40 CFR 52.21(q)(3)provides for denial of a PSD permit to afacility or activity when the FederalLand Manager demonstrates that itsemissions would adversely affect aClass I area even though the applicableincrements would not be exceeded. 40CFR 52.21(q)(4) conversely authorizes

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EPA, with the concurrence of theFederal Land Manager and Stateresponsible, to grant certain variancesfrom the otherwise applicable emissionlimitations to a facility or activity whoseemissions would affect a Class I area.]

(c) Variances authorized by 40 CFR52.21 (q)(5) through (q)(7) shall behandled as specified in thosesubparagraphs and shall not be subjectto this Part. Upon receiving appropriatedocumentation of a variance properlygranted under any of these provisions,the Regional Administrator shall enterthe variance in the administrativerecord. Any decisions later made inproceedings under this Part concerningthat permit shall be consistent with theconditions of that'variance.

Subpart D-Specific ProceduresApplicable to NPDES Permits

§ 124.51 Purpose and scope.(a) This Subpart sets forth additional

requirements and procedures fordecisionmaking for the NPDES program.

(b) Decisions on NPDES variancerequests ordinarily will be made duringthe permit issuance process. Variancesand other changes inpermit conditionsordinarily will be decided through thesame notice-and-comment and hearingprocedures as the basic permit.

§ 124.52 Permits required on a case-by-case basis.

(a) Various sections of Part 122,Subpart B allow the Director todetermine, on a case-by-case'basis, thatcertain concentrated animal feedingoperations (§ 122.23), concentratedaquatic animal production facilities(§ 122.24), separate storm sewers(§ 122.26), and certain other facilitiescovered by general permits (§ 122.28)that do not generally require anindividual permit may be required toobtain an individual permit because oftheir contributions to water pollution.

(b) Whenever the RegionalAdministrator decides that an individualpermit is required under this section, theRegional Administrator shall notify thedischarger in writing of that decisionand the reasons for it, and shall send anapplication form with the notice. Thedischarger must apply for a permit under§ 122.21 within 60 days of notice. Thequestion whether the initial designation-was proper will remain open forconsideration during the publiccomment period under § 124.11 or§ 124.118 and in any subsequent hearing.

§ 124.53 State certification.(a) Under CWA section 401(a)(1), EPA

may not issue a permit until acertification is granted or waived in

accordance with that section by theState in which the discharge originatesor will originate.

(b) Applications received without aState certification shall be forwarded bythe Regional Administrator to thecertifying State agency with a requestthat certification be granted or denied.

(c) If State certification has not beenreceived by the time the draft permit isprepared, the Regional Administratorshall send the certifying State agency:

(1) A copy of a draft permit;(2) A statement that EPA cannot issue

or deny the permit until the certifyingState agency has granted or deniedcertification under § 124.55, or waivedits right to certify; and

(3) A statement that the State will bedeemed to have waived its right tocertify unless that right is exercisedwithin a specified reasonable time notto exceed 60 days from the date thedraft permit is mailed to the certifyingState agency unless the RegionalAdministrator finds that unusualcircumstances require a longer time.

(d) State certification shall .be grantedor denied within the reasonable timespecified under paragraph (c)(3) of thissection. The State shall send a notice ofits action, including a copy of anycertification, to the applicant and theRegional Administrator.

(e) State certification shall be inwriting and shall include:

(1) Conditions which are necessary toassure compliance with the applicableprovisions of CWA settions 208(e), 301,302, 303, 306, and 307 and withappropriate requirements of State law;

(2] When the State certifies a draftpermit instead of a permit application,any conditions more stringent thanthose in the draft permit which the Statefinds necessary to meet therequirements listed in paragraph (e)(1)of this section. For each more stringentcondition, the certifying State agencyshall cite the CWA or State lawreferences upon which that condition isbased. Failure to provide such a citationwaives the right to certify with respectto that condition; and

(3] A statement of the extent to whicheach condition of the draft permit can bemade less stringent without violating therequirements of State law, includingwater quality standards. Failure toprovide this statement for any conditionwaives the right to certify or object toany less stringent condition which maybe established during the EPA permitissuance process.

§ 124.54 Special provisions for Statecertification and concurrence onapplications for section 301(h) variances.

(a) When an application for a permitincorporating a variance request underCWA section 301(h) is submitted to aState, the appropriate State official shalleither:

(1) Deny the request for the CWAsection 301(h) variance (and so notifythe applicant and EPA) and, if the Stateis an approved NPDES State and thepermit is due for reissuance, process thepermit application under normalprocedures; or

(2) Forward a certification meeting therequirements of § 124.53 to the RegionalAdministrator.(b) When EPA issues a tentative

decision on the request for a varianceunder CWA section 301(h), and nocertification has been received underparagraph (a) of this section, theRegional Administrator shall forwardthe tentative decision 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) of thissection within such reasonable time,certification shall be waived and theState shall be deemed to have concurredin the issuance of a CWA section 301(h)variance.

(c) Any certification provided by aState under paragraph (a)(2) of thissection shall constitute the State'sconcurrence (as required by section301(h)) in. the issuance of the permitincorporating a section 301(h) var'iancEsubject to any conditions specifiedtherein by the State. CWA section 301(h)certification and concurrence under thissection will not be forwarded to theState by EPA for recertification after thepermit issuance process; States mustspecify any conditions required by Statelaw, including water quality standards,in the initial certification.

§ 124.55 . Effect of State certification.(a) When certification is required

under CWA section 401(a)(1) no finalpermit shall be issued:

(1) If certification is denied, or(2) Unless the final permit

incorporates the requirements specifiedin the certification under § 124.53(d)(1)and (2).

(b) If there is a change in the Statelaw or regulation upon which acertification is based, or if a court ofcompetent jurisdiction or appropriateState board or agency stays, vacates, orremands a certification, a State whichhas issued a certification under § 124.51may issue a modified certification or

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notice of waiver and forward it to EPA.If the modified certification is receivedbefore final agency action on the permit,the permit shall be consistent with themore stringent conditions which arebased upon State law identified in suchcertification. If the certification or noticeof waiverjs received after final agencyaction on the permit, the RegionalAdministrator may modify the permit onrequest of the permittee only to theextent necessary to delete anyconditions based on a condition in acertification invalidated by a court ofcompetent jurisdiction or by anappropriate State board or agency.

(c) A State may not condition or denya certification on the grounds that Statelaw allows a less stringent permitcondition. The Regional Administratorshall disregard any such certificationconditions, and shall consider thoseconditions or denials as waivers ofcertification.

(d) A condition in a draft permit maybe changed during agency review in anymanner consistent with a certificationmeeting the requirements of § 124.53(d).No such changes shall require EPA tosubmit the permit to the State forrecertification.

(e) Review and appeals of limitationsand conditions attributable to Statecertification shall be made through theapplicable procedures of the State andmay not be made through theprocedures in this Part.

(f) Nothing in this section shall affectEPA's obligation to comply with§ 122.47. See CWA section 301(b)C1)(C).

§ 124.56 Fact sheets.

(Applicable to State programs, see§ 123.25 (NVPDES)}.

In addition to meeting the.requirements of § 124.8, NPD9S factsheets shall contain the following:

(a] Any calculations or othernecessary explanation of the derivationof specific effluent limitations andconditions, including a citation to theapplicable effluent limitation guidelineor performance standard provisions asrequired under § 122.4 and reasons whythey are applicable or an explanation ofhow the alternate effluent limitationswere developed.

(b)(1) When the draft permit containsany of the following conditions, anexplanation of the reasons why suchconditions are applicable:

(i) Limitations to control toxicpollutants under § 122.44(e);

(ii) Limitations on internal wastestreams under § 122.45(i); or

(iii) Limitations on indicatorpollutants under §125.3(g).

(2) For every permit to be issued to atreatment works owned by a personother than a State or municipality, anexplanation of the Director's decision onregulation of users under § 122.44(m).

(c) When appropriate, a sketch ordetailed description of the location ofthe discharge described in theapplication; and

(d) For EPA-issued NPDES permits,the requirements of any.Statecertification under § 124.53.

§ 124.57 Public notice.(a) Section 316(a) requests (applicable

to State programs, seq section 123.25). Inaddition to the information requiredunder section 124.10(d)(1), public noticeto an NPDES draft permit for adischarge where a CWA section 316(a)request has been filed under section122.21(1) shall include:

(1) A statement that the thermalcomponent of the discharge is subject toeffluent limitations under CWA sections301 or 306 and a brief description,including a quantitative statement, ofthe thermal effluent limitations proposedunder section 301 or 306; and

(2) A statement that a section 316(a)request 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 therequest.

(3} If the applicant has filed an earlyscreening request under § 125.72 for asection 316(a) variance, a statement thatthe applicant has submitted such a plan.

(b) Evidentiary hearings underSubpart E. In addition to the informationrequired under § 124.10(d](2), publicnotice of a hearing under Subpart E shallinclude:

(1) Reference to any public heaiingunder § 124.12 on the disputed permit;

(2) Name and address of the person(s)requesting the evidentiary hearing;

(3) A statement of the followingprocedures:

(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 the notice;

(ii) Any person seeking to be a partymay, subject to the requirements of§ 124.76, propose material issues of factor law not already raised by the originalrequester or another party;

(iii) The conditions of the permit(s) atissue may be amended after theevidentiary hearing and any personiiterested in those permit(s) mustrequest to be a party in order topreserve any right to appeal or

otherwise contest the finaladministative decision.

(c) Non-adversary panel proceduresunder Subpart F. (1) In addition to theinformation required under§ 124.10(d)(2), mailed public notice of adraft permit to be processed underSubpart F shall include a statement thatany hearing shall be held under SubpartF (panel hearing).

(2] Mailed public notice of a panelhearing under Subpart F shall include:

(i) Name and address of the personrequesting the hearing, or a statementthat the hearing is being held by order ofthe Regional Administrator, and thename and address of each known partyto the hearing;

(ii) A statement whether therecommended decision will be issued bythe Presiding Officer or by the RegionalAdministrator;

(iii) The due date for filing a writtenrequest to participate in the hearingunder § 124.117; and

(iv) The due date for filing commentsunder § 124.118.

§ 124.58 Special procedures for EPA-issued general permits for point sourcesother than separate storm sewers.

(a) The Regional Administrator shallsend a copy of the draft general permitand the administrative record to theDeputy Assistant Administrator forWater Enforcement during the publiccomment period.

(b) The Deputy AssistantAdministrator for Water Enforcementshall have 30 days from receipt of thedraft general permit, or shall have untilthe end of the public comment period,whichever is later, to comment upon,object to, or make recommendationswith respect to the draft general permit.

(c) If the Deputy AssistantAdministrator for Water Enforcementobjects to a draft general permit withinthe period specified in paragraph (b) ofthis section, the Regional Administratorshall not issue the final general.permituntil the Deputy AssistantAdministrator for Water Enforcementconcurs in writing with the conditions ofthe general permit.

§ 124.59 Conditions requested by theCorps of Engineers and other governmentagencies.

(Applicable to State programs, see§ 123.25 (NPDES)).

(a) If during the comment period foran NPDES draft permit, the DistrictEngineer advises the Director in writingthat anchorage and navigation of any ofthe waters of the United States wouldbe substantially impaired by thegranting of a permit, the permit shall bedenied and the applicant so notified. If

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the District Engineer advised theDirector that imposing specifiedconditions upon the permit is necessaryto avoid any substantial impairment ofanchorage or navigation, then theDirector shall include the specifiedconditions in the permiit. Review orappeal of denial of a permit or ofconditions specified by the DistrictEngineer shall be made through theapplicable procedures of the Corps ofEngineers, and may not be made throughthe procedures provided in this Part. Ifthe conditions are stayed by a court ofcompetent jurisdiction or by applicableprocedures of the Corps df Engineers,those conditions shall be consideredstayed in the NPDES permit for theduration of that stay.

(b) If during the comment period theU.S. Fish and Wildlife Service, theNational Marine Fisheries Service, orany other State or Federal agency withjurisdiction over fish, wildlife, or publichealth advises the Director in writingthat the imposition of specifiedconditions upon the permit is necessaryto avoid substantial impairment of fish,shellfish, or wildlife resources, theDirector may include the specifiedconditions in the permit to the extentthey are determined necessary to carryout the provisions of § 122.47 and of theCWA.

(c) In appropriate cases the Directormay consult with one or more of theagencies referred to in this sectionbefore issuing a draft permit and mayreflect their views in the statement ofbasis, the fact sheet, or the draft permit.

§ 124.60 Issuance and effective date andstays of NPDES permits.

In addition to the requirements of§124.15, the following provisions applyto NPDES permits and to RCRA or UICpermits to the extent those permits mayhave been consolidated with an NPDESpermit in a formal hearing:

(a](1) If a request for a formal hearingis granted under § 124.75 or § 124.114.regarding ihe initial permit issued for anew source, a new discharger, or arecommencing discharger, or if apetition for review of the denial of arequest for a formal hearing with respectto such a permit is timely filed with theAdministrator under § 124.91, theapplicant shall be without a permitpending final Agency action" under§ 124.91.

(2) Wherever a source subject to thisparagraph has received a final permitunder § 124.15 which is the subject of ahearing request under § 124.74 or aformal hearing under § 124.75, thePresiding Officer, on motion by thesource, may issue an order authorizing itto begin operation before final agency

action if it complies with all conditionsof that final permit during the perioduntil final agency action. The PresidingOfficer may grant such a motion in anycase where no party opposes it, or, if aparty opposes the motion, where thesource demonstrates that (i) it is likelyto prevail on the merits; (ii) irreparableharm to the environment will not resultpending final agency action if it isallowed to commence operations beforefiial agency action; and (iii) the publicinterest requires that the source beallowed to commence operations. Allthe conditions of any permit covered bythat order shall be fully effective andenforceable.

(b) The Regional Administrator, atany time prior to the rendering of aninitial decision in a formal hearing on apermit, may withdraw the permit andprepare a new draft permit under § 124.6addressing the portions so withdrawn.The new draft permit shall proceedthrough the same process of publiccomment and opportunity for a publichearing as would apply to any otherdraft permit subject to this Part. Anyportions of the permit which are notwithdrawn and which are not stayedunder this section shall remain in effect.

(c)(1) If a request for a formal hearingis granted in whole or in part under§ 124.75 regarding a permit for anexisting source, or if a petition forreview of the denial of a request for aformal hearing with respect to thatpermit is timely filed with theAdministrator under § 124.91, the forceand effect of the contested conditions ofthe final permit shall be stayed. TheRegional Administrator shall notify, inaccordance with § 124.75, the dischargerand all parties of the uncontestedconditions of the final permit that areenforceable obligations of the,discharger.

(2) When effluent limitations arecontested, but the underlying controltechnology is not, the notice shallidentify the installation of thetechnology in accordance with thepermit compliance schedules (ifuncontested) as an uncontested,enforceable obligation of the permit.

(3) When a combination oftechnologies is contested, but a portionof the combination is not contested, thatportion shall be identified asuncontested if compatible with thecombination of technologies proposedby the requester.

(4) Uncontested conditions, ifinseverable from a contested condition,shall be considered contested.

(5) Uncontested conditions shallbecome enforceable 30 days after thedate of notice under paragraph (c)(1) ofthis section granting the request. If,

however, a request for a formal hearingon a condition was denied and thedenial is appealed under § 124.91, thenthat condition shall become enforceableupon the date of the notice of theAdministrator's decision on the appeal ifthe denial is affirmed, or shall be stayed,in accordance with this section, if theAdministrator reverses the denial andgrants the evidentiary hearing.

(6) Uncontested conditions shallinclude:

(i) Preliminary design and engineeringstudies or other requirements necessaryto achieve the final permit conditionswhich do' not entail substantialexpenditures;

(ii) Permit conditions which will haveto be met regardless of which party

* prevails at the evidentiary hearing;(iii) When the discharger proposed a

less 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 that lessstringent level of treatment areconsistent with the measures required toattain the limits proposed by any otherparty; and

(iv) Construction activities, such assegregation of waste streams orinstallation of equipment, which wouldpartially meet the final permitconditions and could also be used toachieve the discharger's proposedalternative conditions.

(d) If at any time after a hearing is •granted and after the RegionalAdministrator's notice under paragraph(c)(1) of this section it becomes clearthat a permit requirement is no longercontested, any party may request thePresiding Officer to issue an orderidentifying the requirements asuncontested The requirement identifiedin such order shall become enforceable30 days after the issuance of the order.

(e) When a formal hearing is grantedunder § 124.75 on an application for arenewal of an existing permit, all .provisions of the existing permit as well.as uncontested provisions of the newpermit, shall continue fully enforceableand effective until final agency actionunder § 124.91. (See § 122.6) Uponwritten request from the applicant, theRegional Administrator may deleterequirements from the existing permitwhich unnecessarily duplicateuncontested provisions of the newpermit.

(f) When issuing a finally effectiveNPDES permit the conditions of whichwere the subject of a formal hearingunder Subparts E or F, the RegionalAdministrator shall extend the permitcompliance schedule to the extent

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required by a stay under this sectionprovided 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 5 years after issuance under§ 124.15(a).

Note.-Extensions of compliance schedulesunder § 124.60(f)(2) will not automatically begranted for a period equal to the period thestay is in effect for an effluent limitation. Forexample, if both the Agency and thedischarger agree that a certain treatmenttechnology is required by the CWA whereguidelines do not apply, but a hearing isgranted to consider the effluent limitationswhich the technology will achieve, -

requirements regarding installation of theunderlying technology will not be stayedduring the hearing. Thus, unless the hearingextends beyond the final compliance date inthe permit, it will not ordinarily be necessaryto extend the compliance schedule. However,when application of an underlying technologyis challenged, the stay for installationrequirements relating to that technologywould extend for the duration of the hearing.

(g) For purposes of judicial reviewunder CWA section 509(b), final agencyaction on a permit does not occur unlessand until a party has exhausted. itsadministrative remedies under SubpartsE and F and §*124.91. Any party whichneglects or fails to seek review under§ 124.91 thereby waives its opportunityto exhaust available agency remedies.

§ 124.61 Final environmental Impactstatement

No final NPDES permit for a newsource shall be issued until at least 30days after the date of issuance of a finalenvironmental impact statenent if oneis required under 40 CFR § 6.805.

§ 124.62 Decision on variances.(Applicable to State programs, see

§ 123.25 (NPDES)).(a) The Director may grant or deny

requests for the following variances(subject to EPA objection under § 123.44for 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 request 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 CWAsection 301(c);

(3) A variance based upon certainwater quality factors under CWAsection 301(g); or

(4) A variance based on water qualityrelated effluent limitations under CWAsection 302(b)(2).

(c) The Regional Administrator maydeny, forward, or submit to the EPADeputy Assistant Administrator forWater Enforcement with arecommendation for approval, a request.for a variance listed in paragraph (b) ofthis section that is forwarded by theState Director, or that is submitted tothe Regional Administrator by therequester where EPA is the permittingauthority.

(d) The EPA Deputy AssistantAdministrator for Water Enforcementmay approve or deny any variancerequest submitted under paragraph (c)of this section. If the Deputy AssistantAdministrator approves the variance,the Director may prepare a draft permitincorporating the variance. Any publicnotice of a draft permit for which avariance or modification has beenapproved or denied shall identify theapplicable procedures for appealing thatdecision under § 124.54.

§ 124.63 Procedures for variances when*EPA Is the permitting authority.

(a) In States where EPA is the permitissuing authority and a request for avariance is filed as required by § 122.21,the request shall be processed asfollows:

(1) If at the time that a request for avariance is submitted the RegionalAdministrator has received anapplication under § 124.3 for issuance orrenewal of that permit but has not yetprepared a draft permit under § 124.6covering the discharge in question, theRegional Administrator, after obtainingany necessary concurrence of the EPADeputy Assistant Administrator forWater Enforcement under § 124.62, shallgive notice of a tentative decision on therequest at the time the notice of the draftpermit is prepared as specified in§ 124.10, unless this would significantlydelay the processing of the permit. Inthat case the processing of the variancerequest may be separated from thepermit in accordance with paragraph.(a)(3) of this section, and the processingof the permit shall proceed withoutdelay.

(2) If at the time that a request for avariance is filed the RegionalAdministrator has given notice under§ 124.10 of a draft permit covering thedischarge in question, but that permithas not yet become final, administrative

proceedings concerning that permit maybe stayed and the RegionalAdministrator shall prepare a new draftpermit including a tentative decision onthe request, and the fact sheet requiredby § 124.8. However, if this willsignificantly delay the processing of theexisting draft permit or the AegionalAdministrator, for other reasons,considers" combining the variancerequest and the existing draft permitinadvisable, the request may beseparated from the permit in accordancewith paragraph (a)(3) of this section, andthe administrative dispositon of theexisting draft permit shall proceedwithout delay.

(3) If the permit has become final andno application under § 124.3 concerningit is pending or if the variance requesthas been separated from a draft permitas described in paragraphs (a) (1) and(2) of this section, the RegionalAdministrator may prepare a new draftpermit and give notice of it under§ 124.10. This draft permit shall beaccompanied by the fact sheet requiredby § 124.8 except that the only mattersconsidered shall relate to the requestedvariance.

§ 124.64 Appeals of variances.(a) When a State issues a permit on

which EPA has made a variancedecision, separate appeals of the Statepermit and of the EPA variance decisionare possible. If the owner or operator "ischallenging the same issues in bothproceedings, the Regional Administratorwill decide, in consultation with Stateofficials, which case will be heard first.

(b) Variance decisions made by EPAmay be appealed under either SubpartsE or F, provided the requirements of theapplicable Subpart are met. However,whenever the basic permit decision iseligible only for an evidentiary hearingunder Subpart E while the variancedecision is eligible only for a panelhearing under Subpart F, the issuesrelating to both the basic permitdecision and the variance decision shallbe considered in the Subpart Eproceeding. No Subpart F hearing maybe held if a Subpart E hearing would beheld in addition. See § 124.111(b).

(d) Stays for section 301(g) variances.If a request for an evidentiary hearing isgranted on a variance requested underCWA section 301(g), or if a petition forreview of the denial of a request for thehearing is filed under § 124.91, anyotherwise applicable standards andlimitafions under CWA section 301 shallnot be stayed unless:

(1) In the judgment of the RegionalAdministrator, the stay or the variancesought will not result in the discharge of

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pollutants in quantities which may •reasonably be anticipated to pose anunacceptable risk to human health orthe environment because ofbioaccumulation, persistency in theenvironment, acute toxicity, chronictoxicity, or synergistic propensities; and

(2) In the judgment of the RegidnalAdministrator, there is a substantiallikelihood that the discharger willsucceed on the merits of its appeal; and

(3) The discharger files a 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 other thansection 301(g) are governed by § 124.60.

§ 124.65 Special procedures for dischargeinto marine waters section 301(h).

(a) Where it is clear on the face of asection 301(h) request that thedischarger is not entitled to a variance,the request'shall be denied.

(b) In the case of all other section301(h) requests the Administrator, or aperson designated by the Administrator,may either:

(1) Give written authorizatiqn to arequester to submit information requiredby part 125, Subpart G or the finalrequest by a date certain, not to exceed9 months, if:

(i) The requester proposes to submitnew or additional information and therequest demonstrates that:

(A) The requester made consistentand diligent efforts to obtain suchinformation prior to submitting the finalrequest;

(B) The failure to obtain suchinformation was due to circumstancesbeyond the control of the requester, and

(C) Such information can be submittedpromptly; or

(ii) The requester proposes to submitminor corrective information and suchinformation can be submitted promptly;or

(2) Make a written request of arequester to submit additionalinformation by a certain date, not toexceed 9 months, if such information isnecessary to issue a tentative decisionunder § 124.62(a)(1).All additional information submittedunder this paragraph which is timelyreceived, shall be considered part of theoriginal request.

(c) The otherwise applicable sectionsof this Part apply to draft permitsincorporating section 301(h) variance,except that because 301(h) permits mayonly be issued by EPA, the terms"Administrator or a person.designatedby the Regional Administrator" shall be

substituted for the term "Director" asappropriate.

(d) No permit subject to a 301(h)variance shall be issued unless theappropriate State officials haveconcurred or waived concurrencepursuant to § 124.54. In the case of apermit issued to a requester in anapproved State, the State Director may:

(1) Revoke any existing permit as ofthe effective date of the EPA-issuedpermit subject to a 301(h) variance; and

(2) Co-sign the permit subject to the901(h) variance, if the Director hasindicated an intent to do so in thewritten concurrence.

§ 124.66 Special procedures for decisionson thermal variances under section 316(a).

(a) Except as provided in § 124.65, theonly issues connected with issuance of aparticular permit on which EPA willmake a final Agency decision before thefinal permit is issued under § § 124.15and 124.60 are whether alternativeeffluent limitations would be justified.under CWA section 316(a) and whetherc6oling water intake structures will usethe best available technology undersection 316(b). Permit applicants whowish. an early decision on these issuesshould request it and furnish supportingreasons at the time their permitapplications are. filed under § 122.21.The Regional Administrator will thendecide whether or not to make an earlydecision. If it is granted, both the earlydecision on CWA section 316 (a) or (b)issues aijd the grant of the balance ofthe permit shall. be considered permitissuance under these regulations, andshall be subject to the samerequirements of public notice andcomment and the same opportunity foran evidentiary or panel hearing underSubparts E or F.

(b) If the Regional Administrator, onreview of the administrative record,determines that the informationnecessary to decide whether or not theCWA section 316(a) issue is not likely tobe available in time for a decision onpermit issuance, the RegionalAdministrator may issue a permit under§ 124.15 for a term up to 5 years. Thispermit shall require achievement of theeffluent limitations initially proposed forthe thermal component of the dischargeno later than the date otherwiserequired by law. However, the permitshall also afford the permittee anopportunity to file a demonstrationunder CWA section 316(a) afterconducting such studies as are requiredunder 40 CFR Part 125, Subpart H. Anew discharger may not exceed thethermal effluent limitation which isinitially proposed unless and until its

CWA section 316(a) variance request isfinally approved.

(c) Any proceeding held underparagraph (a) of this section shall bepublicly noticed as required by § 124.10and shall be conducted at a timeallowing the permittee to take necessarymeasures to meet the final compliancedate in the event its request formodification of thermal limits is denied.

(d) Whenever the RegionalAdministrator defers the decision underCWA section 316(a), any decision undersection 316(b) may be deferred.

Subpart E-Evidentlary Hearings forEPA-Issued NPDES Permits and EPA-Terminated RCRA Permits

§ 124.71 Applicability.(a) The regulations in this Subpart

govern all formal hearings conducted byEPA under CWA section 402, except forthose conducted under Subpart F. Theyalso govern all evidentiary hearingsconducted under RCRA section 3008 inconnection with the termination of aRCRA permit. This includes terminationof interim status for failure to furnishinformation needed to make a finaldecision. A formal hearing is availableto challenge any NPDES permit issuedunder §124.15 except for a generalpermit. Persons affected by a generalpermit may not challenge the conditionsof a general permit as of right in furtheragency proceedings. They may insteadeither challenge the general permit incourt, or apply for an individual NPDESpermit under § 122.21 as authorized in§ 122.28 and then request a formalhearing on the issuance or denial of anindividual permit. (The RegionalAdministrator also has the discretion touse the procedures of Subpart Florgeneral permits. See § 124.111).

(b) In certain cases, evidentiaryhearings under this Subpart may also be-held on the conditions of UIC permits, orof RCRA permits which are beingissued, modified, or revoked andreissued, rather than terminated orsuspended. This will occur when theconditions of the UIC or RCRA permit inquestion are closely linked with theconditions of an NPDES permit as towhich an evidentiary hearing has beengranted. See § 124.74(b)(2). Anyinterested person may challenge theRegional Administrator's initial newsource determination by requesting anevidentiary hearing under this Part. See§ 122.29.

(c) PSD permits may never be subjectto an evidentiary hearing under thisSubpart. Section 124.74(b)(2)(iv)provides only for consolidation of PSD

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permits with other permits subject to apanel hearing under Subpart F.

§ 124.72 Definitions.For the purpose of this Subpart, the

following definitions are applicable:"Hearing Clerk" means The Hearing

Clerk, U.S. Environmental ProtectionAgency, 401 M Street, SW., Washington,D.C. 20460.

"Judicial Officer" means a permanentor temporary employee of the Agencyappointed as a Judicial Officer by theAdministrator under these regulationsand subject to the following conditions:

(a) 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, or which is factually relatedto such a case.

(b) 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 decides suchaction would be appropriate. TheAdministrator, in deciding a: case, mayconsult with and assign the drafting ofpreliminary findings of fact andconclusions and/or a preliminarydecision to any Judicial Officer.

"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 or§ 124.117 has been granted.

"Presiding Officer" for the purposes ofthis Subpart means an AdministrativeLaw Judge appointed under 5 U.S.C.3105 and designated to preside at thehearing. Under Subpart F other personsmay also serve as hearing officers. See§ 124.119.

"Regional Hearing Clerk" means anemployee of the Agency designated by aRegional Administrator to establish arepository 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, unlessotherwise provided by regulation.Submissions shall be considered filed onthe date on which they are mailed or

delivered in person to the RegionalHearing Clerk.

(b) All submissions shall be signed bythe person making the submission, or byan attorney or other authorized agent orrepresentative.

(c)(1) All data and informationreferred to or in any way relied upon inany submission shall be included in fulland may not be incorporated byreference, unless previously submittedas part of the administrative record inthe same proceeding. This requirementdoes not apply to State or Federalstatutes and regulations, judicialdecisions published in a nationalreporter system, officially issued EPAdocuments of general applicability, andany other generally available referencematerial which may be incorporated byreference. Any party incorporating'materials by reference shall providecopies upon request by the RegionalAdministrator or the Presiding Officer.

(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 document.also containing irrelevant matter, eitherthe irrelevant matter shall be deleted orthe relevant portions shall be indicated.

(4) Failure to comply with therequirements of this section or any otherrequirement in this Subpart may resultin the noncomplying portions of thesubmission being excluded fromconsideration. If the RegionalAdministrator or the Presiding Officer,on motion by any party or sua sponte,determines that a submission fails tomeet any requirement of this Subpart,the Regional Administrator or PresidingOfficer shall direct the Regional HearingClerk to return the submission, togetherwith a reference to the applicableregulations. A party whose materialshave been rejected has 14 days to 'correct the errors and resubmit, unlessthe Regional Administrator or thePresiding Officer finds good cause toallow a longer time.

(d) The filing of a submission shall notmean or imply that it in fact meets 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 be

signed in ink and shall state the name,address, and the representative capacityof the person making the submission.

§ 124.74 Requests for evidentlary hearing.(a) Within 30 days following the

service of notice of the RegionalAdministrator's final permit decisionunder § 124.15, any interested personmay submit a request to the RegionalAdministrator under paragraph (b) ofthis section for an evidentiary hearing toreconsider or contest that decision. Ifsuch a request is submitted by a personother than the permittee, the personshall simultaneously serve a copy of therequest 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 foradjudication. Information supporting therequest or other written documentsrelied upon to support the request shallbe submitted as required by § 124.73unless they are already part of theadministrative record required by§ 124.18.

Note.-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 theAdministrator is authorized by § 124.91(a)(1)to review policy or legal conclusibns of theRegional Administrator. EPA is requiring anappeal to the AdministFator even of purelylegal issues involved in a permit decision toensure that the Administrator will have anopportunity to review any permit before itwill be final and subject to judicial review.

(2) Persons requesting an evidentiaryhearing on an NPDES permit under thissection may also request an evidentiaryhearing on a RCRA or UIC permit, PSDpermits may never be made part of anevidentiary hearing under Subpart E.This request is subject to all therequirements of paragraph (b)(1) of thissection and in addition will be grantedonly if:

(i) Processing of the RCRA or UICpermit at issue was consolidated withthe processing of the NPDES permit asprovided in § 124.4;

(ii) The standards for granting ahearing on the NPDES permit are met;

(iii) The resolution of the NPDESpermit issues is likely to make necessaryor appropriate modification of the RCRAor UIC permit; and

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(iv) If a PSD permit is involved, apermittee who is eligible for anevidentiary hearing under Subpart E onhis or her NPDES permit requests thatthe formal hearing be conducted underthe procedures of Subpart F and theRegional Administrator finds thatconsolidation is unlikly to delay finalpermit issuance beyond the PSD one-year statutory deadline.

(c) These requests shall also contain:(1) The name, mailing address, and

telephone number of the person 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 requester that,upon motion of any party granted by thePresiding- Officer, or upon brder of thePresiding Officer sua sponte 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(iii) All officers, directors, employees,

consultants, and agents of the requesterand the persons represented by therequester.(5) Specific references to the

contested permit conditions, as well assuggested revised or alternative permitconditions (including permit denials]which, in the judgment of the requester,would be required to implement thepurposes and policies of the CWA.

(6) In the case of challenges to theapplication of control or treatmenttechnologies identified in the statementof basis or fact sheet, identification ofthe basis for the objection, and thealternative technologies or combinationof technologies which the requesterbelieves are necessary to meet therequirements of the CWA.

(7) Identification of the permitobligations that are contested or areinseverable from contested conditionsand should be stayed if the request isgranted by reference to the particularcontested conditions warranting thestay.

(8) Hearing requests also may ask thata formal hearing be held under theprocedures set forth in Subpart F. Anapplicant may make such a request evenif the proceeding does not constitute"initial licensing" as defined in§ 124.111.

(d) If the Regional Administratorgrants an evidentiary hearing request, inwhole or in part, the RegionalAdministrator shall identify the permitconditions which have been contested

by the requester and for which theevidentiary hearing has been granted.Permit conditions which are notcontested or for which the RegionalAdministrator has denied the hearingrequest shall not be affected by, orconsidered at, the evidentiary hearing.The Regional Administrator shallspecify these conditions in writing inaccordance with § 124.60(c).

(e) The Regional Administrator mustgrant or deny all requests for anevidentiary hearing on a particularpermit. All requests that are granted fora particular permit shall be combined ina single evidentiary hearing.

(f) The Regional Administrator (uponnotice to all persons who have alreadysubmitted hearing requests) may extendthe time allowed for submitting hearingrequests under this section for goodcause.

§ 124.75 Decision on request for ahearing.

(a)(1) Within 30 days following theexpiration of the time allowed by§ 124.74 for submitting an evidentiaryhearing request, the RegionalAdministrator shall decide the extent towhich, if at all, the request shall begranted, provided that the requestconforms to the requirements of§ 124.74, and sets forth material issuesof fact relevant to the issuance of thepermit.

(2) When an NPDES permit for whicha hearing request has been grantedconstitutes "initial licensing" under§ 124.111, the Regional Administratormay elect to hold a formal hearing underthe procedures of Subpart F rather thanunder the procedures of this Subparteven if no person has requested thatSubpart F be applied. If the RegionalAdministrator makes such a decision, heor she shall issue a notice of hearingunder § 124.116. All subsequentproceedings shall then be governed by§§ 124.117 through 124.121, except thatany reference to a draft permit shallmean the final permit.

(3) Whenever the RegionalAdministrator grants a request madeunder § 124.74(c)(8) for a formal hearingunder Subpart F on an NPDES permitthat does not constitute an intitial"license under § 124.111, the RegionalAdministrator shall issue a notice ofhearing under § 124.116 including astatement that the permit will beprocessed under the procedures ofSubpart F unless a written objection isreceived within 30 days. If no validobjection is received, the applicationshall be processed in accordance with§ § 124.117 through 124.121, except thatany reference to a draft permit shallmean the final permit. If a valid

objection is received, this Subpart shallbe applied instead.

(b) If a request for a hearing is deniedin whole or in part, the RegionalAdministrator shall briefly state thereasons. That denial is subject to reviewby the Administrator under § 124.91.

§ 124.76 Obligation to submit evidenceand raise issues 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§ 124.18 as part of the preparation of andcomment on a draft permit, unless goodcause is shown for the failure to submitit. No issues shall be raised by any partythat were not submitted to theadministrative record required by§ 124.18 as part of the preparation of andcomment on a draft permit unless goodcause is shown for the failure to submitthem. Good cause includes the casewhere the party seeking to raise the newissues or introduce new informationshows that it could not reasonably haveascertained the issues or made theinformation available within the timerequired by § 124.15; or that it could nothave reasonably anticipated therelevance or materiality of theinformation sought to be introduced.Good cause exists for the introduction ofdata available on operation authorizedunder § 124.60(a)(2).

§ 124.77 Notice of hearing.Public notice of the grant of an

evidentiary hearing regarding a permitshall be given as provided in § 124.57(b)and by mailing a copy to all personswho commented on the draft permit,testified at the public hearing, orsubmitted a request for a hearing. Beforethe issuance of the notice, the RegionalAdministrator shall designate theAgency trial staff and the members ofthe decisional body (as defined in§ 124.78).

§ 124.78 Ex parte communications.(a) For purposes of this section, the

following definitions shall apply:(1) "Agency trial staff" means those

Agency employees, whether temporaryor permanent, who have beendesignated by the Agency under § 124.77or § 124.116 as available to investigate,litigate, and present the evidence,arguments, and position of the Agencyin the evidentiary hearing ornonadversary panel hearing.Appearance as a witness does notnecessarily require a person to bedesignated as a member of the Agencytrial staff;

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(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 or shedoes not designate himself or herself asa member of the Agency trial staff), andany of their staff participating in thedecisional process. In the case of anonadversary panel hearing, thedecisional body shall also include thepanel members, whether or notpermanently employed by the Agency;

(3) "Ex porte communication" meansany communication, written or oral,relating to the merits of the proceedingbetween the decisional body and aninterested person outside the Agency orthe Agency trial staff which was notoriginally filed or stated in theadministrative record or in the hearing.Ex porte communications do notinclude:

(i) Communications between Agencyemployees other than between theAgency trial staff and the members ofthe decisional body;

(ii) Discussions between thedecisional body and either:

(A) Interested persons outside theAgency, or

(B) The Agency trial staff, if all partieshave received prior written notice of theproposed communications and havebeen given the opportunity to be presentand 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 in thehearing and any other interested personnot employed by the Agency at the timeof the communications, and anyattorney of record for those persons.

(b)(1) No interested person outside theAgency or member of the Agency trialstaff shall make or knowingly cause tobe made to any members of thedecisional body, an expartecommunication on the merits of theproceedings.

(2) No member of the decisional bodyshall make or knowingly cause to be.made to any interested person outsidethe Agency or member of the Agencytrial staff, an ex porte communication onthe merits of the proceedings.

(3) A member of the decisional bodywho receives or who makes or whoknowingly causes to be made acommunication prohibited by thissubsection shall file with the RegionalHearing Clerk all writtencommunications or memoranda stating

the substance of all oralcommnunications together with allwritten responses and memorandastating the substance of all oralresponses.

(c) Whenever any member of thedecisionmaking body receives an exparte communication knowingly madeor knowingly caused to be made by aparty or representative of a party inviolation of this section, the personpresiding at the stage of the hearing thenin progress may, to the extent consistentwith justice and the policy of the CWA,require 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.

(d) The prohibitions of this sectionbegin to apply upon issuance of thenotice of the grant of a hearing under§ 124.77 or § 124.116. This prohibitionterminates at the date of final agencyaction.

§ 124.79 Additional parties and Issues.(a) Any person may submit a request

to 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 grantrequests that meet the requirements of§ § 124.74 and 124.76.

(b) After the expiration of the timeprescribed in paragraph (a) of thissection any person may file a motion forleave to intervene as a party. Thismotion must meet the requirements of§ § 124.74 and 124.76 and set forth thegrounds for the proposed intervention.No factual or legal issues, besides thoseraised by timely hearing requests, maybe proposed except for good cause. Amotion for leave to intervene must alsocontain a verified statement showinggood cause for the failure to file a timelyrequest to be admitted as a party. ThePresiding Officer shall grant the motiononly upon an express finding on therecord 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 proceedings; 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 all

written submissions relating to anevidentiary hearing filed after the notice

is published shall be filed with theRegional Hearing Clerk.

(b) The party filing any submissionshall also serve a copy of eachsubmission upon the Presiding Officerand each party of record. Service shallbe by mail or personal delivery.

(c) Every submission shall beaccompanied by an acknowledgment ofservice by the person served or acertificate of service citing the date,place, time, and manner of service andthe names of the persons served.

(d) The Regional Hearing Clerk shallmaintain and furnish a list containingthe name, service address, andtelephone number of all parties and theirattorneys or duly aiAhorizedrepresentatives to any person uponrequest.§ 124.81. Assignment of AdministrativeLaw Judge.

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 assign an Administrative Lawjudge to serve as Presiding Officer forthe'hearing.

§ 124.82 Consolidation and severance.(a) The 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 that a 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 in a separate proceeding.

§ 124.83 Prehearing 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 writtenproposals or correspond for the purposeof considering any of the matters setforth in paragraph (c) of this section.

(b) The Presiding Officer shall allow areasonable period before the hearingbegins for the orderly completion of allprehearing procedures and for the

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submission and disposition of allprehearing motions. Where thecircumstances warrant, the PresidingOfficer may call a prehearing conferenceto inquire into the use of available.procedures contemplated by the partiesand the time required for theircompletion, to establish a schedule fortheir completion, and to set a tentativedate for beginning the hearing.

(c) In conferences held, or insuggestions submitted, under paragraph(a) of this section, the following mattermay be considered: -

(1) Simplification, clarification,amplification, or limitation of the issues.

(2) Admission of facts and of thegenuineness of documents, andstipulations of facts. -

(3) 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 § 124.19 shall bereceived in evidence subject to theprovisions of § 124.85(d)(2). At any timebefore the end of the hearing any partymay make, and the Presiding Officershall consider and rule upon, motions tostrike testimony or other evidence otherthan the administrative record on thegrounds of relevance, competency, ormateriality.

(4) Matters subject to official noticemay be taken.

(5) Scheduling as many of thefollowing as are deemed necessary andproper by the Presiding Officer:

(i) Submission of narrative statementsof position on each factual issue incontroversy;

(ii) Submission of written testimonyand documentary evidence (e.g.,affidavits, data, studies, reports, andany other type of written material) insupport of those statements; or

(iii) Requests by any party for theproduction of additional documentation,data, or other information relevant andmaterial to the facts in issue.

(6) Grouping participants withsubstantially similar interests toeliminate redundant evidence, motions,and objections.

(7) Such other matters that may.expedite the hearing or aid in thedisposition of the matter.

(d) At a prehearing conference or atsome other 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, or

materials which a party expects tointroduce into evidence, and theadministrative record required by§ 124.18 shall be marked foridentification as ordered by thePresiding Officer. Witnesses, proposedwritten testimony, and other evidencemay be added or amended upon order ofthe Presiding Officer for good causeshown. Agency employees andconsultants shall be made available aswitnesses by the Agency to the same.extent 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 each prehearingconference and setting forth theschedule for the hearing, unless atranscript has been taken andaccurately reflects these matters. Theorder shall include a written statementof the areas of factual agreement anddisagreement and of the methods andprocedures to be used in developing theevidence 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 evidentiary

hearing may move with or withoutsupporting affidavits and briefs for asummary determination in its favorupon any of the issues being adjudicatedon the basis that there is no genuineissue of material fact for determination.This motion shall be filed at least 45days before the date set for the hearing,except that upon good cause shown themotion may be filed at any time beforethe close of the hearing.

(b) Any other party may, within 30days after service of the motion, file andserve 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 toconsideration 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 evidence,and shall show affirmatively that theaffiant is competent to testify to thematters stated therein.

(d) The Presiding Officer may set thematter for oral argument and call for thesubmission of proposed findings,conclusions, briefs, or memoranda of

law. The Presiding Officer shall rule onthe motion not more than 30 days afterthe date responses to the motion arefiled under paragraph (b) of this section.

(e) If all factual issues are decided bysummary determination, no hearing willbe held and the Presiding Officer shallprepare an initial decision under§ 124.89. If summary determination isdenied or if partial summarydetermination is granted, the PresidingOfficer shall issue a memorandumopinion and order, interlocutory incharacter, and the hearing will proceedon the remaining issues. Appeals frominterlocutory rulings are governed by§ 124.90.

(f) Should it appear from the affidavitsof a party opposing a motion forsummary determination that he or shecannot for reasons stated present, byaffidavit or otherwise, facts essential tojustify his or her opposition, thePresiding Officer may deny the motionor order a continuance to allowadditional affidavits or otherinformation to be obtained or may makesuch other order as is just and proper.

§ 124.85 Hearing procedure.(a)(1) The permit applicant always

bears the burden of persuading theAgency that a permit authorizingpollutants to be discharged should beissued and not denied. This burden doesnot shift.

Note.-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.

(2) The Agency has the burden ofgoing forward to present an affirmativecase in support of any challengedcondition of a final permit.

(3) Any hearing participant who, byraising material issues of fact, contends:

(i) That particular conditions orrequirements in the permit are improperor invalid, and who desires either:

(A) The inclusion of new or differentconditions or requirements; or

(B) The deletion of those conditions orrequirements; or

(ii) That the denial or issuance of apermit is otherwise improper or invalid,shall have the burden of going forwardto present an affirmative case at theconclusion of the Agency case on thechallenged requirement.

(b) The Presiding Officer shall conducta fair and impartial hearing, take actionto avoid unnecessary delay in thedisposition of the proceedings, andmaintain order. For these purposes, thePresiding Officer may:

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(1) Arrange and issue notice, of thedate, time, and place of hearings andconferences;'

(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 §, 124.90;19) 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.motionsand otherprocedural matters pending before him,including but not limited to motions forsummary determination in accordancewith § 124.84;

(12) Order that" the hearing beconducted ino stages whenever the'number of parties is' large or thei 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, fafr; 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 be'treated as confidential businessinformation in accordance. with § 1 T22.7(NPDESJ and 2170:J2 (jCR-Al. and- 40 CFRPart 2; and

C16) Allow such cross-examination asmaybe required for a full, and, truedisclosureeof'thefocts.. No cross-examination shall be allowed onquestions of policy except to the extentrequi-ed to, disclose the, factuaf basis' forpermit requirements, or' on questions oflaw, or regarding matters Csuch as thevalidity of'effluent limitationsguidelines) that are' not subject tochallenge in' an evidentiary hearing. NoAgency witnesses' shall be required totestify or be made available for cross-examination on suchr matters. Indeciding whether or not toallow cross-examination, the Presiding Officer shall:consider the likelihood of clarifying orresolving a disputed issue of material

fact compared to other availablemethods. The party seeking:cross-examination has the burden ofdemonstrating that this' standard hasbeen 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 issues. Writtentestimony shall be prepared in narrative

'form.(d)(1) The Presiding Officer shall

admit 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 § 124.18 shall be. admitted andreceived in evidence. Upon motion byany' party the Presiding Officer' maydirect that a witness be provided tosponsor a, portion or portions. of the.administrative. record.. The. PresidingOfficer., upon finding that the standardsin § 124.85(b)L3) have' been. met, shalldirect the appropriate- party tor producethe witness for cross-examinaio,. If asponsoring witness cannot be provided,the Presiding Officer may reduce. the.weight accorded. the. appropriate) po tionof the record.

[Note.-Receiving the administrativerecord intbj evfiience automatical]r. servesseveral purposesr l]' iit documents the priorcourse of. the proceedings;; C2)' it provides arecord. of the! views of affected persons forconsideration, by the. agency decisionmaker;and (3) it provides factual material for use bythe decfsfonmaker.],

(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 air offer of proof. The partyseeking the admission of oral testimonymay make an offer- of proof, by means. ofa brief statement on the- recorddescribing the testimony excluded.

(4)' When two. or more parties havesubstantially' similar interests andpositions, the Presfding Officer may;limit the number of attorneys or' otherparty representatives who will bepermitted to cross-examine and to' makeand argue motions and objectfons onbehalf of those parties. Attorneys may,however, engage in cross-examination

relevant 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.

§ 124.86 Motions.(a) Any party may file a motion

(including a motion, to dismiss aparticular claim on a contested issue)with the Presiding Officer on any matterrelating to the proceeding. All motions.'shall be in writing and served asprovided, irr § 124.80.except those madeon the record during an oral hearingbefore the Presiding Officer.

(b) Within 10 days after service of anywrittenmotion, any part to theproceeding may file a response to themotion. The time for response- mhy beshortened to 3, days or extended for anadditional l0 days by the; PresidingOfficer for good cause shown.(c) Notwithstanding §, 12Z.4, any party

may file with the Presiding Officer' anmtion seeking, to apply to the! permitany regulatory or-statutory provisionissuedt or made available after' theissuance- of the.permit Under' §i 124.15The Presiding Officer shall grant anymotion to apply a new statutory,provisionunlesa he or she finds itcontrary to. legislative. intent.. ThePresiding Officer may grant a motion toapply a new regulatory requirementwhen appropriate to carry out thepurpose of CWA,. and when no' partywould be unduly prejudiced thereby.

§ 124.87, Record of hearingsi.(a) All orders, issued by the, Presiding

Officer;. transcripts of oral hearings orarguments,. writter statements ofposition,, written dfrect and rebuttaltestimony;,. and any other data,. studies,reports, documentation, information andother written material.of any kindsubmitted in the proceeding shall be apart of the hearing record. and, shall beavailable, to the public except as;provided itr §'§ 122.7(NPDEST and 270.12(RCRA-, in the Office of the RegionalHearing Clerk, as soon as. it is receivedin that office.

(b)Evidentiary hearings shall beeitherstenographfcally reportedverbatim or tape recorded, and

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thereupon transcribed. After thehearing, the reporter shall certify andfile with the Regional Hearing Clerk:

(1) The original of the transcript, and(2) 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 uponpayment of costs.

(d) The Presiding Officer shall allowwitnesses, parties, and their counsel anopportunity to submit such writtenproposed corrections of the transcript ofany oral testimony taken at the hearing,pointing out errors that may have beenmade in transcribing the testimony, asare required to make the transcriptconform to the testimony. Except inunusual cases, no more than 30 daysshall be allowed for submitting suchcorrections from the day a completetranscript of the hearing becomesavailable.

§ 124.88 Proposed findings of fact andconclusions; brief.

Within 45 days after the certifiedtranscript is filed, any party may filewith the Regional Hearing Clerkproposed findings of fact andconclusions of law and a brief in supportthereof. Briefs shall contain appropriatereferences to the record. A copy of thesefindings, conclusions, and brief shall beserved upon all the other parties and thePresiding Officer. The Presiding Officer,for good cause shown, may extend thetime for filing the proposed 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 under § 124.90and shall issue and file his initialdecision with the Regional HearingClerk. The Regional Hearing Clerk shallimmediately serve copies of the initialdecision upon all parties (or theircounsel of record) and theAdministrator.

(b) The initial decision of thePresiding Officer shall automaticallybecome the final decision 30 days afterits service unless within that time: •

(1) A party files a petition for reviewby the Administrator pursuant to§ 124.91; or

(2) The Administrator sua sponte filesa notice that he or she will review thedecision pursuant to § 124.91.

§ 124.90 Interlocutory appeal.(a) Except as provided in this section,

appeals to the Administrator may betaken only under § 124.91. Appeals fromorders or rulings may be taken underthis section only if the Presiding Officer,upon motion of a party, certifies thoseorders or rulings to the Administratorfor appeal on the record. Requests to thePresiding Officer for certification mustbe filed in writing within 10 days ofservice of notice of the order, ruling, ordecision and shall state briefly thegrounds relied on.

(b) The Presiding Officer may certifyan ordor 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 proceeding;or

(ii) A review after the final order isissued will be inadequate or ineffective.

(c) 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 beautomatically dismissed. When thePresiding Officer declines to certify anorder or ruling to the Administrator foran interlocutory appeal, it may bereviewed by the Administrator onlyupon appeal from the initial decision ofthe Presiding Officer, except when theAdministrator determines, upon motionof a party and in exceptionalcircumstances, that to delay reviewwould not be in the public interest. Suchmotion shall be made within 5 daysafter receipt of notification that thePresiding Officer has refused to certifyan order or ruling for interlocutoryappeal to the Administrator. Ordinarily,the interlocutory appeal will be decidedon the basis of the-submissions made tothe Presiding Officer. The Administratormay, however, allow briefs and oralargument.

(d) In exceptional circumstances, thePresiding Officer may stay theproceeding pending a decision by theAdministrator upon an order or rulingcertified by the Presiding Officer for aninterlocutory appeal, or upon the denialof such certification by the PresidingOfficer.

(e) The failure to request aninterlocutory appeal shall not preventtaking exception to an order or ruling inan appeal under § 124.91.

§ 124.91. Appeal to the Administrator.(a)(1) Within 30 days after service of

an initial decision, or a denial in wholeor in part of a request for an evidentiaryhearing, any party or requester, as thecase may be, may appeal any matter setforth in the initial decision or denial, orany adverse order or ruling to which theparty objected during the hearing, byfiling with the Administrator notice ofappeal and petition for review. Thepetition shall include a statement of thesupporting reasons and, whenappropriate, a showing that the initialdecision contains:

(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 review.

(2) Within 15 days after service of a"petition for review under paragraph(c)(1) of this section, any other party tothe proceeding may file a responsivepetition.

(3) Policy decisions made or legalconclusions drawn in the course ofdenying a request for an evidentiaryhearing may be reviewed and changedby the Administrator in an appeal underthis section.

(b) Within 30 days of an initialdecision or denial or a request for anevidentiary hearing the Administratormay, sua sponto, review such decision.Within 7 days after the Administratorhas decided under this section to reviewan initial decision or the denial of arequest for an evidentiary hearing,notice of that decision shall be servedby mail upon all affected parties and theRegional Administrator.

(c)(1) Within a reasonable timefollowing the filing of the petition forreview, the Administrator shall issue anorder either granting or denying thepetition for review. When theAdministrator grants a petition forreview or determines under paragraph(b) of this section to review a decision,the Administrator may notify the partiesthat only certain issues shall be briefed.

(2) Upon granting a petition forreview, the Regional Hearing Clerk shallpromptly forward a copy of the record tothe Judicial Officer and shall retain acomplete duplicate copy of the record inthe Regional Office.

(d) Notwithstanding the grant of apetition for review or a determinationunder paragraph (b) of this section toreview a decision, the Administratormay summarily affirm without opinion.and initial decision or the denial of arequest for an evidentiary hearing.

(e) A petition to the Administratorunder paragraph (a) of this section forreview of any initial decision or the

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denial of an evidentiary hearing is,under 5 U.S.C. § 704, a prerequisite tothe seeking of judicial review of the finaldecision of the Agency.

(f) If a party timely files a petition forreview or if the Administrator suasponte orders review, then,. for purposesof judicial review, final Agency actionon an issue occurs as follows:

(1) If the Administrator denies reviewor summarily affirms without opinion asprovided in § 124.91(d), then the initialdecision or denial becomes the finalAgency action and occurs upon theservice-of notice of the Administrator'saction.

(2) If the Administrator issues adecision without remanding theproceeding then the final permit,redrafted as required by theAdministrator's original, decision, shallbe reissued and served upon all partiesto the appeal.

(3) If the Administrator issues adecision remanding the proceeding, thenfinal Agency action occurs uponcompletion of the remanded proceeding,including any appeals to the-Administrator from the results of theremanded proceeding.

(g) The petitioner may file a brief insupport of the petition withirr 21 daysafter the, Administrator, has- granted apetition for review. Any' other party mayfile a responsive brief within 21 days ofservice of'the petitioner's brief. Thepetitioner' then mayfile, a reply briefwithin 14 days of'service of theresponsive brief_ Any person may file an.anmcus brief for the consideration of theAdministrator within the. same timeperiods that govern reply-briefs. If theAdministrator determines,. sua sponte, toreview an initial RegionalAdministrator's decision or the denial ofa request for an evidentiary hearing, theAdministrator shall notify the parties ofthe schedule for filing briefs.

(h) Review by the Administrator of aninitial decision or the denial of anevidentiary hearing shall be limited tothe. issues specified under paragraph (a)of this section, except that after noticeto all parties, the Administrator mayraise and decide other matters which heor she considers material on the basis ofthe record.

Subpart F-Non-Adversary PanelProcedures

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

this Subpart applies in lieu of, and tocomplete exclusion of, Subparts Athrough E in the following cases:

(1)(i) In any proceedings for theissuance of any NPDES permit whichconstitutes "initial licensing" under the

Administrative Procedure Act, when theRegional Administrator elects to applythis Subpart and explicitly so states inthe public notice of the draft permitunder § 124.10 or in a supplementalnotice under § 124.14. If an NPDES draftpermit is processed under this Subpart,any other draft permits which have beenconsolidated with the NPDES draftpermit under §' 124.4 shall likewise beprocessed under this Subpart, except for'PSD permits; when the RegionalAdministrator makes a finding under§ 124.4(e) that consolidation would belikely to result in missing the one yearstatutory deadlinefor issuing a finalPSD permit under the CAA.

(ii) "Initial licensing" includes boththe: first decision on an- NPDES permitapplied for bya discharger that has notpreviously held one and the firstdecision on any variance requested by adischarger.

(iii) To the extent this. Subpart is usedto process a request for a variance.under CWA section 301(h), the term"Administrator or a person designated.by the. Adhiinistrator" shall besubstituted for the term "RegionalAdministrator"..

(2] In any proceeding for which ahearing under' this Subpart was grantedunder §: 124,75 following a request for aformal hearing under § 124.74. See:§§ 124.74(c)(8) and 124.75("a)(2).

(3) Whenever the RegionalAdministrator' determines as. a. matter ofdiscretion that the more: formalizedmechanisms of this Subpart should beused. to process draft NPDES generalpermits (for which evidentiary hearingsare unavailable under' § 124.71), or draftRCRA or draft UIC, permits.

(b) EPA shall not apply theseprocedures to, a decision on. a variancewhere Subpart E proceedings. are

.simultaneously pending on the other'conditions of the. permit.. See § 124.64(b).

§ 124..112 Relation to other subparts.The. following, provisions of Subparts

A through E apply to proceedings underthis Subpart:

(a)(1) § § 124.1 through 124.10.(2) § 124.14 "Reopening of'comment

period."(3) § 124.16 "Stays of contested permit

conditions."(4) t 124.20 "Computation of time'."(b)(1); § 124.41 "Definitions applicable

to PSD Permits."(2) §, 124;42 "Additional. procedures for'

PSD permits affecting Class I Areas."(c)(1) § § 124.51 through 124.56.(2). §1124.57(c) "Public.notice."(3) §§ 124.58 through.124.66.(d)(1) § 124.72 "Definitions," except

for the definition of "Presiding Officer,"see § 124.119.

(21 § 124.73 "Filing."(3) § 124.78 "E.cparte

communications."(4) §, 124.80 "Filingand service."(51, § 124.85(a) (Burden of proof).(6] § 124.86 "Motions."(7) § 124.87 "Record of hearings."(8) § 124.90 "Interlocutory appeal."(e) In the case of permits to which this

Subpart is made applicable after a finalpermit has-been issued under 1124.15,either by the grant under § 124.75 of ahearing request under § 124.74, or bynotice of supplemental proceedingsunder E 1Z4.14 § 124.13 and 124.76shalr also. apply.

§ 124.113 Public notice of draft permitsand public comment period.

Public notice of a draft permit underthis Subpart. shall be given as: providedin § §'124.10 and 124.57. At the discretionof the Regional Administrator, the publiccomment period' specified in. this noticemay include an opportunity for'apublichearing under § 124.12.

§ 124 .114. Requestfor hearing.(a) By. the close of thecomment period

under' § 124.113, any person may requestthe Regional Adininistrator' trhold" apanel' hearing on" the draft permit bysubmitting a written request containingthe, fbllowing::

(1) A brie~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 the hearing;, and

(41 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 andpresernts, genuine issues of material fact,or (2] the Regional.Administratordetermines suasponte that a hearingunder this. Subpart is necessary orappropriate,, the Regional Administratorshall notify each person requesting thehearing and the applicant, and shallprovide public notice under § 124.57(c).If the Regional Administrator'determines that a. request does not meetthe requirements of paragraph. (a) of thissection. or does not present genuineissues of fact, the RegionalAdministrator may deny the request forthe hearing and shall serve writtennotice of that determination on allpersons requesting the hearing.

(c) The Regional Administrator mayalso decide before a draft permit isprepared under §,124.6 that a hearingshould be held under this section. Insuch cases, the public notice of the. draft

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permit shall explicitly so state and shallcontain the information required by§ 124.57(c). This notice may also providefor a hearing under § 124.12 before ahearing is conducted under this section.

§ 124.115 Effect of denial of or absence ofrequest for hearing.

If no request for a hearing is madeunder § 124.114, or if all such requestsare denied under that section, theRegional Administrator shall thenprepare a recommended decision under§ 124.124. Any person whose hearingrequest has been denied may thenappeal that recommended decision tothe Administrator as provided in§ 124.91.

§ 124.116 Notice of hearing.(a) Upon granting a request for a

hearing under § 124.114 the RegionalAdministrator shall promptly publish anotice of the hearing as required under§ 124.57(c). The mailed notice shallinclude a statement which, indicateswhether the Presiding Officer or theRegional Administrator will issue theRecommended decision. The mailednotice shall also allow the participantsat least 30 days to submit writtencomments as provided under § 124.118.

(b) The Regional Administrator mayalso give notice of a hearing under thissection at the same time as notice of adraft permit under § 124.113. In that casethe comment periods under § § 124.113and 124.118 shall be merged and held asa single public comment period.

(c) The Regional Administrator mayalso give notice of hearing under thissection in response to a hearing rejuest-under § 124.74 as provided in § 124.75.

§ 124.117 Request to participate Inhearing.

(a) Persons desiring to participate inany hearing noticed under this section,shall file a request to participate withthe Regional Hearing Clerk before thedeadline set forth in the notice of thegrant of the hearing. Any person filingsuch a request becomes a party to theproceedings within the meaning of theAdministrative Procedure Act. Therequest shall include:

(1) A brief statement of the interest ofthe person in the proceeding;

.(2) A brief outline of 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 nonbinding list of thepersons to take part in the presentation.

(b) As soon as practicable, but in noevent later than 2 weeks before the

scheduled 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 Submlsslom 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 thenotice 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 that party.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) of this section shallconstitute the bulk of the evidencesubmitted at the hearing. Oralstatements at the hearing should bebrief 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 party believes can moreeffectively be argued in the hearingcontext.

(2] Notwithstanding the foregoing,within two weeks prior to the deadlinespecified in paragraph (a] of this sectionfor the filing of comments, any partymay move to submit all or part of itscomments orally at the hearing in lieu ofsubmitting written comments and thePresiding Officer shall, within one week,grant such motion if the PresidingOfficer finds that the party will beprejudiced if required to submit thecomments in written form.

(c) Parties to any hearing may submitwritten material in response to thecomments filed by other parties underparagraph (a) of this section at the timethey appear at the panel stage of thehearing under § 124.120.

§,124.119 Presiding Officer.(a)(1)(i) Before giving notice of a

hearing under this Subpart in aproceeding involving an NPDES permit,the Regional Administrator shall requestthat the Chief Administrative Law Judgeassign an Administrative Law judge asthe Presiding Officer. The ChiefAdministrative Law Judge shall thenmake the assignment.

(ii) If all parties to such a hearingwaive in writing their statutory right tohave an Administrative Law Judgenamed as the Presiding Officer in ahearing subject to this subparagraph theRegional Administrator may name a

Presiding Officer under paragraph(a)(2)(ii) of this section.

(2) Before giving notice of a hearingunder this Subpart in a proceedingwhich does not involve an NPDESpermit or a RCRA permit termination,the Regional Administrator shall either:

(i) Request that the ChiefAdministrative Law Judge assign anAdministrative Law Judge as thePresiding Officer. The ChiefAdministrative Law Judge maythereupon make such an assignment ifhe concludes that the other duties of hisoffice allow, or

(ii) Name a lawyer permanently ortemporarily employed.by the Agencyand without prior connection with theproceeding to serve as Presiding Officer;

(iii) If the Chief Administrative LawJudge declines to name anAdministrative Law Judge as PresidingOfficer upon receiving a request underparagraph (a)(2)(i) of this section, theRegional Administrator shall name aPresiding Officer under paragraph(a)(2)(ii) of this section.

(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§§ 124.113 and 124.118, the record of thepanel hearing under § 124.120, and theadministrative record, as defined in§ 124.9 or in § 124.18 as the case may beshall be received in evidence, and

(3) Either upon motion or sua sponte,to change the date. of the hearing under§ 124.120, or to recess such a hearinguntil a future date. In any such case thenotice required-by § 124.10 shall begiven.

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

each hearing held under this Subpart.An EPA panel shall also take part in.thehearing. The panel shall consist of threeor more EPA temporary or permanentemployees having special expertise orresponsibility in areas related to thehearing issue, at least two of whom shallnot have taken part in writing the draftpermit. If appropriate for the evaluationof new or different issues presented atthe hearing, the panel membership, atthe discretion of the RegionalAdministrator, may change or mayinclude persons not employed by EPA.

(b) At the time ofthe hearing noticeunder § 124.116, the RegionalAdministrator shall designate thepersons who shall serve as panelmembers for the hearing and the

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Regional Administrator shall file withthe Regional Hearing Clerk the nameand address of each person sodesignated. The Regional Administratormay also designate EPA employees whowill provide staff support to the panelbut who may or may not serve as panelmembers. The designated persons shallbe subject to the exparte rules in§ 124.78. The Regional Administratormay also designate Agency trial staff asdefined in § 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 than panel members shall not bepermitted at this stage of the proceedingexcept when the Presiding Officerdetermines, after consultation with thepanel, that the cross-examination wouldexpedite consideration of the issues.However, the parties may submitwritten questions to the PresidingOfficer 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 party may submit to thePresiding Officer written questionsspecifically directed to any personappearing or testifying in the hearing.The Presiding Officer, after consultationwith the panel may, at his solediscretion, ask the written question sosubmitted.

(f) Within 10 days after the close ofthe hearing, any party shall submit suchadditional written testimony, affidavits,information, or material as they considerrelevant or which the panel mayrequest. These additional submissionsshall be filed with the Regional HearingClerk and shall be a part of the hearingrecord.

§ 124.121 Opportunity for cross-examination.

(a) Any party to a panel hearing maysubmit a written request to cross-examine any issue of material fact. Themotion 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. This shall include an explanationof why the questions at issue are factualrather than of an analytical or policy

nature, the extent to which theyare indispute in light of the then-existingrecord, and the extent to which they arematerial to the decision on theapplication; and

(2) The person(s) to be cross-examined, and an estimate of the timenecessary to conduct the cross-examination. This shall include astatement explaining how the cross-examination will resolve the disputedissues of material fact.-(b) After receipt of all motions for

cross-examination underparagraph (a)of this section, the Presiding Officer,after consultation with the hearingpanel, shall promptly issue an ordereither granting or denying each request.Orders granting requests for cross-examination shall be served on allparties and shall .specify:

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

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

(3] The persons allowed to conductcross-examination;

(4) Time limits for the examination ofwitnesses by each cross-examiner; and(5) The date, time, and place of thesupplementary hearing at which cross-examination shall take place.

(6) In issuing this order, the PresidingOfficer may determine that two or moreparties 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 that case, the ordershall simply assign time for cross-examination without further identifyingthe representative. If the designatedparties fail to choose a singlerepresentative, the Presiding Officermay divide the assigned time among therepresentatives or issue any other orderwhich justice may require.

(d) 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 will be madeunder § 124.87.

(e)(1) No later than the time set forrequesting cross-examination, a partymay request that alternative methods ofclarifying the record (such as thesubmission of additional writteninformation) be used in lieu of or inaddition to cross-examination. ThePresiding Officer shall issue an ordergranting or denying this request at thetime he or she issues (or would haveissued) an order granting or denying arequest for cross-examination, under

paragraph (b) of this section. If therequest for an alternative method isgranted, the order shall specify thealternative and any other relevantinformation (such as 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 the request,require alternative means of clarifyingthe record to be used whether or not arequest to do so has been made. Theparty requesting cross-examination shallhave one week to comment on theresults of using the alternative method.After considering these comments thePresiding Officer shall issue an ordergranting or denying the request forcross-examination.

(f) The provisions of § 124.85(d)(2)apply to proceedings under this Subpart,

§ 124.122 Record for final permit.The record on which the final permit

shall be based in any proceeding underthis Subpart consists of:

(a) The administrative recordcompiled under §§ 124.9 or 124.18 as thecase may be;

(b) Any material submitted under§ 124.78 relating to exparte contacts;

(c) All notices issued under § 124.113;(d) All requests for hearings, and

rulings on those requests, received orissued under § 124.114;

(e) Any notice of hearing issued under§ 124.116;

(f) Any request to participate in thehearing received under § 124.117;

(g) All comments submitted under§ 124.118, any motions made under.thatsection and the rulings on them, and anycomments filed under § 124.113;

(h] The full transcript and othermaterial received into the record of thepanel hearing under § 124.120;

(i) Any motions for, or rulings on,cross-examination filed or issued under§ 124.121;

(j) Any motions for, orders for, and theresults of, any alternatives to cross-examination under § 124.121; and

(k) The full transcript of any cross-examination held.

§ 124.123 Filing of brief, proposedfindings of fact and conclusions of law andproposed modified permit.

Unless otherwise ordered by thePresiding Officer, each party may,within 20 days after all requests forcross-examination are denied or after atranscript of the full hearing includingany cross-examination becomesavailable, submit proposed findings offact; conclusions regarding material

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issues of law, fact, or discretion; aproposed modified permit (if suchperson is urging that the draft or finalpermit be modified); and a brief insupport thereof; together with referencesto relevant pages of transcript and torelevant exhibits. Within 10 daysthereafter each party may file a replybrief concerning matters contained inopposing briefs and containingalternative findings of fact; conclusionsregarding material issues of law, fact, ordiscretion; and a proposed modifiedpermit where appropriate. Oralargument inay be held at the discretionof the Presiding Officer on motion of anyparty or sua sponte.

§ 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 df 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 draft orfinal permit should be modified. Afterthe recommended decision has beenfiled, the Regional Hearing Clerk shallserve a copy of that decision on eachparty and upon the Administrator.

§ 124.125 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 that decision or to any adverseorder or ruling of the Presiding Officer towhich that party objected, and mayappeal those exceptions to theAdministrator as provided in § 124.91,except that references to "initialdecision" will- mean recommendeddecision under § 124.124.

§ 124.126 Final decision.As soon as practicable after all appeal

proceedings have been completed, theAdministrator shall issue a finaldecision. That final decision shallinclude findings of fact; conclusionsregarding material issue of law, fact, ordiscretion, as well as reasons therefore;and a modified permit to the extentappropriate. It may accept or reject allor part of the recommended decision.The Administrator may delegate someor all of the work of preparing this

decision to a person or persons withoutsubstantial prior connection with thematter. The Administrator or his or herdesignee may consult with the PresidingOfficer, members of the hearing panel,or any other EPA employee other thanmembers of the Agency Trial Staff under§ 124.78 in preparing the final decision.The Hearing Clerk shall file a copy ofthe decision on all parties.

§ 124.127 Final decision If there Is noreview.

If no party appeals a recommendeddecision to the Administrator, and if theAdministrator does not elect to reviewit, the recommended decision becomesthe final decision of the Agency uponthe expiration of the time for filing anyappeals.

§ 124.128 Delegation of authority; timelimitations.

(a) The Administrator may delegate toa Judicial Officer any or all of his or herauthority-under this Subpart.

(b) The failure of the Administrator,Regional Administrator, or PresidingOfficer to do any act within the timeperiods specified under this Part shallnot waive or diminish any right, power,or authority of the United StatesEnvironmental Protection Agency.

(c) Upon a showing by any party thatit has been prejudiced by a failure of theAdministrator, Regional Administrator,or Presiding Officer to do any act withinthe time periods specified under thisPart the Administrator, RegionalAdministrator, or Presiding Officer, asthe case may be, may grant that partysuch relief of a procedural nature(including extension of any time forcompliance or other action) as may beappropriate.

Appendix A to Part 124-Guide toDecisionmaking Under Part 124

This Appendix is designed to assist inreading the procedural requirements set outin Part 124. It consists of two flow charts.

Figure 1 diagrams the more conventionalsequence of procedures EPA expects tofollow in processing permits under this Part.It outlines how a permit will be applied for,how a draft permit will be prepared andpublicly noticed for comment, and how afinal permit will be issued under theprocedures in Subpart A.

This permit may then be appealed to theAdministrator, as specified both in Subpart A(for RCRA, UIC, or PSD permits), or SubpartE or F (fbr NPDES permits). The first flowchart also briefly outlines which permitdecisions are elgible for which types ofappeal.

Part 124 also contains special "non-adversary panel hearing" procedures basedon the "initial licensing" provisions of theAdministrative Procedure Act. Theseprocedures are set forth in Subpart F. In somecases, EPA may only decide to make those

procedures applicable after it has gonethrough the normal Subpart A procedures ona draft permit. This process is alsodiagrammed in Figure 1.

Figure 2 sets forth the general procedure tobe followed where these Subpart Fprocedures have been made applicable to apermit from the beginning.

Both flow charts outline a sequence ofevents directed by arrows. The boxes setforth elements of the permit process; and thediamonds indicate key decisionmaking pointsin the permit process.

The charts are discussed in more detailbelow.

Figure 1-Conventional EPA PermittingProcedures

This chart outlines the procedures forissuing permits whenever EPA does not make.use of the special "panel hearing" proceduresin Subpart F. The major steps depicted onthis chart are as follows:

1. The permit process can begin in any oneof the following ways:

a. Normally, the process will begin when aperson applies for a permit under §§ 122.21(NPDES), 144.31 (UIC), 233.4 (404), and 270.10(RCRA) and 124.3.

b. In other cases, EPA may decide to takeaction on its own initiative to change apermit or to issue a general permit. This leadsdirectly to preparation of a draft permit under§124.6. "

c. In addition, the permittee or anyinterested person (other than for PSDpermits) may. request modificiation,revocation and reissuance or termination of apermit under § § 122.62, 122.64 (NPDES),144.39, 144.40 (UIC), 233.14, 233.15, (404),270.41, 270.43 (RCRA), and 124.5.

Those requests can be handled in either oftwo ways:

i. EPA may tentatively decide to grant therequest and issue a new draft permit forpublic comment, either with or withoutrequiring a new application.

ii. If the request is denied, an informalappeal to the Administrator is available.

2. The next major step in the permitprocess is the preparation of a draft permit.As the chart indicates, preparing a draftpermit also requires preparation of either astatement of basis (§ 124.7), a fact sheet(§ 124.5) or, compi!ation of an "administrativerecord" (§ 124.9), and public notice f§ 124.10).

3. The next stage is the public commentperiod (§ 124.11). A public hearing under§ 124.12 may be requested before the close ofthe public comment period.

EPA has the discretion to hold a publichearing, even if there were no requests duringthe public comment period. If EPA decides toschedule one, the public comment period willbe extended through the close of the hearing.EPA also has the discretion to conduct thepublic hearing under Subpart F panelprocedures. (See Figure 2.)

The regulations provide that all argumentsand factual materials that a person wishesEPA to consider in connection with aparticular permit must be placed in the recordby the close of the public comment period(§ 124.13).

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4. Section 124.14 states that EPA, at anytime before issuing a final permit decisionmay decide to either reopen or extend thecomment period, prepare a new draft permitand begin the process again from that point,Or for RCRA and UIC permits, or for NPDES'permits that constitute "initial licensing", tobegin "panel hearing" proceedings underSubpart F. These various results are shownschematically.

5. The public comment period and anypublic hearing will be followed by issuanceof a final permit decision (§ 124.15). As thechart shows, the final permit must beaccompanied by a response to comments(§ 124.17) and be based on the administrativerecord (§ 124.18).

6. After the final permit is issued, it may beappealed to higher agency authority. Theexact form of the appeal depends on the typeof permit involved.

a. RCRA, UIC or PSD permits standingalone will be appealed directly to theAdministrator under § 124.19.

b. NPDES permits which do not involve"initial licensing" may be appealed in anevidentiary hearing under Subpart E. Theregulations provide (§ 124.74) that if such ahearing is granted for an NPDES permit and ifRCRA or UIC permits have been consolidatedwith that permit under § 124.4 then closelyrelated conditions of those RCRA or UICpermits may be reexamined in an evidentiaryhearing. PSD permits, however, may never bereexamined in a Subpart E hearing.

c. NPDES permits which do involve "initiallicensing" may be appealed in a panelhearing under Subpart F. The regulationsprovide that if such a hearing is granted foran NPDES permit, consolidated RCRA, UIC,or PSD permits may also be reexamined inthe same proceeding.

As discussed below, this is only one ofseveral ways the panel hearing proceduresmay be used under these regulations.

7. This chart does not show EPA appealprocedures in detail. Procedures for appeal tothe Administrator under § 124.19 are self-explanatory; Subpart F procedures arediagrammed in Figure 2; and Subpart Eprocedures are basically the same that wouldapply in any evidentiary hearing.

However, the chart at this stage doesreflect the provisions of § 124.60(b), whichallows EPA, even after a formal hearing hasbegun, to "recycle" a permit back to the draftpermit stage at any time before that hearinghas resulted in an initial decision.

Figure 2-Non-Adversary Panel Procedures

This chart outlines the procedures for-processing permits under the special "panelhearing" procedures of Subpart F. Theseprocedures were designed for makingdecisions that involve "initial licensing"NPDES permits. Those permits include the

first decisions on an NPDES permit appliedfor by any discharger that has not previouslyheld one, and the first decision on anystatutory variance. In addition, theseprocedures will be used for any RCRA, UIC,or PSD permit which has been consolidatedwith such an NPDES permit, and may beused, if the Regional Administrator sochooses, for the issuance of individual RCRAor UIC permits. The steps depicted on thischart are as follows:

1. Application for a permit. These.proceedings will generally begin with anapplication, since NPDES initial licensingalways will begin with an application.

2. Preparation of a draft permit. This isidentical to the similar step in Figure 1.

3. Public comment period. This again isidentical to the similar step in Figure 1. TheRegional Administrator has the opportunityto schedule an informal public hearing under§ 124.12 during this period.

4. Requests for a panel hearing must bereceived by the end of the public commentperiod under § 124.113. See § 124.114.

If a hearing request is denied, or if nohearing requests are received, arecommended decision will be issued basedon the comments received. The recommendeddecision may then be appealed to theAdministrator. See § 124.115.

5. If a hearing is granted, notice of thehearing will be published in accordance with§ 124.116 and will be followed by a secondcomment period during which requests toparticipate and the bulk of the remainingevidence for the final decision will bereceived (§§ 124.117 and 124.118).

The regulations also allow EPA to movedirectly to this stage by scheduling a hearingwhen the draft permit is prepared. In suchcases the comment period on the draft permitunder § 124.113 and the prehearing commentperiod under § 124.118 would occur at thesame time. EPA anticipates that this will bethe more frequent practice when permits areprocessed under panel procedures.

This is also a stage at which EPA canswitch from the conventional proceduresdiagramed in Figure 1 to the panel hearingprocedures. As the chart indicates, EPAwould do this by scheduling a panel hearingeither through use of the "recycle" provisionin § 124.14 or in response to a request for aformal hearing under § 124.74.

6. After the close of the comment period, apanel hearing will be held under § 124.120,followed by any cross-examination grantedunder § 124.121. The recommended decisionwill then be prepared (§ 124.124) and anopportunity for appeal provided under§ 124.125. A final decision will be issued afterappeal proceedings, if any, are concluded.

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PART 125-CRITERIA ANDSTANDARDS FOR THE NATIONALPOLLUTANT DISCHARGEELIMINATION SYSTEM

The cross-references in Part 125 toformer Parts 122 and 123 are revised asfollows:

§ 125.3 [Amended](1) In § 125.3(a), change the reference

from § 122.60 to § 122.41; the referencefrom § 122.61 to § 122.42; and thereference from § 122.62 to § 122.44.

(2) In § 125.3(a)(2), change thereference from § 122.67(d) to § 122.29(d).

(3) In § 125.3(b), change the referencefrom § 122.53 to § 122.21.

(4) In § 125.3(c), change the referencefrom §122.53 to §122.21.

(5) In §125.3(g)(4), change thereference from §122.61(a)(1) to§ 122.42(a)(1).

§125.30 [Amended](6) In § 125.30(b), change the reference

from §122.53(i)(1) to § 122.21(l)(1).

§ 125.59 [Amended](7) In § 125.59(d), change the reference

from §122.5(a)(3) to § 122.6(a)(3).

§ 125.67 [Amended](8) In § 125.67, change the reference

from § 122.14 to § 122.61.


from § 122.53(j) to § 122.21(m).


from § 122.53(i) to § 122.21(1).

§ 125.104 [Amended](11) In § 125.104(c)(2), change the

reference from § 122.15 to § 122.62.

PART 146-UNDERGROUNDINJECTION CONTROL PROGRAM:CRITERIA AND STANDARDS

The cross-references in Part 146 toformer Parts 122 and 123 are revised asfollows:

§ 146.01 [Amended](1) In § 146.01, change the references

from 40 CFR Parts 122 and 123 to 40 CFRParts 144 and 145.


from 40 CFR Part 122 to 40 CFR Part 144.


from § 122.35(b) to § 144.8(b); thereference from part 122 to Part 144; thereference from Part 123 to Part 145; and

the reference from § 122.37 to §§ 144.21-.26 and 144.15.

§ 146.04 [Amended]

(4) In § 146.04, change the referencefrom § 122.35 to § 144.8.

§ 146.07 [Amended]

(5) In § 146.07, change the referencefrom § 122.44 to § 144.55.


from § 122.38 to § 144.31 (a), (c), (g); andchange the reference from § 123.4(g) to§ 144.22(f).

§ 146.10 [Amended](7) In § 146.10(d), change the reference

from § 122.42(f) to § 144.52(a)(6); andchange the reference from § 122.41(e) to§ 144.51(n).

§ 146.14 [Amended]

(8) In § 146.14(a)(1), change thereference from § 122.4 to § 144.31; andchange the reference from § 122.38(c) to§ 144.31(g).

(9) In § 146.14(a)(14), change thereference from § 122.44 to § 144.55.

(10) In § 146.14(a)(16), change thereference from § 122.42(a) to§ 144.52(a)(1).


from § 122.18(c)(4)(C)(ii) to § 144.9(b)(2).(12) In § 146.15(i), change the

reference from § 122.41(d) to § 144.51(1)(6).

§ 146.23 [Amended]

(13) In § 146.23(b)(4), change thereference from § 122.42(e) to§ 144.52(a)(5).

§ 146.24 [Amended]

(14) In § 146.24(a)(1), change thereference from § 122.4 to § 144.31; andchange the reference from § 122.38(c) to§ 144.31(g).


(16) In § 146.24(a)(14), change thereference from § 122.42(g) to§ 144.52(a)(7).

§ 146.25 [Amended]

(17) In § 146.25(a), change thereference from § 122.18(c)(4)(C)(ii) to'§ 144.9(b)(2).

(18) In § 146.25(a)(8), change thereference from § 122.41(d) to§ 144.51(1)(6).

§ 146.34 [Amended]

(19] In § 146.34(a)(1), change thereference from § 122.4 to § 144.31; andchange the reference from § 122.38(c) to§ 144.31(g).

(20) In § 146.34(a)(15), change thereference from § 122.42(9) to§ 144.52(a)(7).


§ 146.35 [Amended]

(22) In § 146.35, change the referencefrom § 122.18(c)(4)(C)(ii) to § 144.9(b)(2).

(23) In § 146.35(h), change thereference from § 122.41(d) to§ 144.51(1)(6).

§ 146.52 [Amended]

(24) In § 146.52(al, change thereference from § 122.37(c)(1) to§ 144.26(a).

Title 40 of the Code of FederalRegulations is further amended asfollows:

PART 260-[AMENDED]

§260.10 [Amended]

1. Section 260.10 is amended byremoving the words "Parts 122" and"Part 123" in the definition of."Designated facility" and substituting"Parts 270" and "Part 271", respectively.

Appendix I [Amended]

2. Appendix I to Part 260, entitled"Overview of Subtitle C Regulations" isamended by removing the words "Part122" and substituting "Part 270" in twoplaces under "Hazardous WasteRegulations."

3..Appendix I to Part 260, figure 3,entitled "Special Provisions for CertainHazardous Waste", is amended byremoving the words "Part 122" andsubstituting Part 270 in the box entitled"It is subject to the followingrequirements * *

4. Appendix I to Part 260, figure 4,entitled "Regulations for HazardousWaste Not Covered in Diagram 3," isamended by removing the words "Part122" and substituting "Part 270" under"0/0 who don't qualify for interimstatus."

PART 261-[AMENDED]

§261.1 (Amended]

5. Section 261.1 paragraph (a) isamended by removing the words "Parts122 through 124" and substituting "Parts270, 271, and 124".

6. Section 261.1 paragraph (a)(1) isamended by removing the words "Parts262 through 265 and 122 through 124"and substituting the words "Parts 262through 265, 270, 271 and 124".

§261.4 [Amended]

7. Section 261.4 paragraph (c) isamended by removing the words "Parts262 through 265 and Parts 122 through

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124" and substituting the words "Parts262 through 265, 270, 271 and 124".

§261.5 [Amended]8. Section 261.5 paragraphs (b), (e), (f),

(g)(3)(i) and (g)(3)(ii) are amended byremoving the words "Part 122" andsubstituting the words "Part 270".Paragraph (g)(3)(iii) is amended byremoving the words "Part 123" andsubstituting the words "Part 271".

§ 261.6 [Amended]1 9. Section 261.6, paragraph (a) is

amended by removing the words "Parts122 through 124" and substituting thewords "Parts 270, 271, and 124".Paragraph (b)(6) is amended byremoving the words "Parts 122" andsubstituting the words "Parts 270".

§ 261.7 [Amended]10. Section 261.7, paragraph (a)(1) is

amended by removing the words "Part122" and substituting the words "Part270". Paragraph (a)(2) is amended byremoving the words "Parts 122" andsubstituting the words "Parts 270".

§ 261.20 [Amended]11. Section 261.20 paragraph (b) is

amended by removing the words "Part122" and substituting the words "Part270".

§ 261.30 [Amended]12. Section 261.30 paragraph (c) is


PART 262-[AMENDED]

§ 262.10 [Amended]13. Section 262.10 paragraph (d) is

amended by removing the words "Parts122" and substituting the words "Parts270". The Note at the end of the sectionis amended by removing the words "Part122" and substituting the words "Part270".





§ 262.50 [Amended]- 16. Section 262.50 is amended by

removing the words "Part 123" from theNote, and substituting the words "Part271".

§ 262.51 [Amended]17. Section 262.51 is amended by

removing the words "Part 122" andsubstituting the words "Part 270".

PART 263-[AMENDED]


removing the words "Parts 122," andsubstituting the words "Parts 270".

PART 264-[AMENDED]

§ 264.1 [Amended]19. Section 264.1 paragraphs (c) and

(e) are amended by removing the words"Part 122" and substituting the words"Part 270".

20. Section 264.1 paragraph (d) isamended by removing the words."§ 122.45" and substituting thewords"§ 144.14".

21. Section 264.1 paragraph (f) isamended by removing the words"Subparts A and B of Part 123" andsubstituting the words "Subpart A ofPart 271," and by removing the words"Subpart F of Part 123" and substitutingthe words "Subpart B of Part 271".


removing the words "§ 122.23" andsubstituting the words "§ 270.70". Thecomment is amended by removing thewords "Parts 122" and-substituting thewords "Parts 270".



§ 264.13 [Amended]24. Section 264.13 paragraph (a)(1) is

amended by removing the words "Part122, Subparts A and B" and substitutingthe words "Part 270". The comment isamended by removing the words "Part122 Subpart B" and substituting thewords "Part 270".


removing the words "Part 122, SubpartB" from the comment after paragraph(a)(2), and substituting the words "Part270".


removing the words "Part 122 SubpartB" from the comment after paragraph(b)(4), and substituting the words "Part270".


removing the words "Part 122, Subpart

B" from the comment after paragraph(a)(1) and substituting the words "Part270".


removing the words "§ 122.25(a)(11)" inthe comment after paragraph (a) andsubstituting the words "§ 270.14(b)(11)".The comment after paragraph (b)(1) isamended by removing the words "Part122", "Part 123", and "Parts 122" andsubstituting the words "Part 270", "Part271", and "Parts 270", respectively.


removing the words "Part 122, SubpartB" from the comment after paragraph(d), and substituting the words "Part270".


removing the words "Part 122, SubpartB" from the comment and substitutingthe words "Part 270".


amended by removing the words"§ 122.35" and substituting the words"§ 144.8".


amended by removing the words"§ 122.35" and substituting the words"§ 144.8".

§ 264.112 [Amended]33. Section 264.112 paragraph (a) is

amended by removing the words"§ 122.25(a)(13)" and substituting thewords "§ 270.14(b)(13)".

34. Section 264.112 paragraph (a)(2) isamended by removing the words"122.17" and substituting the words"§ 270.42". The comment afterparagraph (b) is amended by removingthe words "§ 122.17(c)" and substitutingthe words "§ 270.42(c)".


removing the words "§ 122.17" andsubstituting the words "§ 270.42".


amended by removing the words"§ 122.25(a)(13)" and substituting thewords "§ 270.14(b)(13)", and byremoving the words "§ 122.29"'andsubstituting the words "§ 270.32".


amended by removing the words to

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"§ 122.27(c)" and substituting the words"§ 270.63".

§ 264.340 [Amended]

38. Section 264.340 paragraph (c) isamended by removing the words to"3 122.27(b)" and substituting the words"§ 270.62".


amended by removing the words"§ 122.27(b)" and substituting the words".§ 270.62", by removing the words"§ 122.27(b)(2) and substituting thewords "§ 270.62(b)", and by removingthe words "§ 122.25(bft5)" andsubstituting the words "§ 270.19".

§ 264.342 (Amended]40. Section 264.342 paragraph (b)(2) is

amended by removing the words"§ 122.27(b)" and substituting the words"§ 270.62".

§ 264.343 [Amended]41. Section 264.343 paragraph (d) is

amended by removing the words

"§ 122.15" and substituting the words"§ 270.41". ,

§ 264.344 [Amended]

42. Section 264.344 paragraph (a)(1) isamended by removing the words"§ 122.27(b)" and substituting the words"§ 270.62".

43. Section 264.344 paragraph (b) isamended by removing the words"§ 122.25(b)(5)" and substituting thewords "§ 270.19".

44. Section 264.344 paragraph (c)(4) isamended by removing the words"§ 122.25(b)(5)(iii)" and substituting thewords "§ 270.19(c)".

PART 265-[AMENDED]


amended by removing the words"§ 122.22" and substituting the words"§ 270.10". The comment after *paragraph (b) is amended by removingthe words "Part 122" and substitutingthe words "Part 270". The comment afterparagraph (c)(3) is amended by

removing the words "§ 122.45" andsubstituting the words "§ 144.14".

46. Section 265.1 paragraph (c)(4) isamended by removing the words"Subparts A and B or Subpart F of Part123" and substituting the words"Subparts A or B of Part 271".


amended by removing the words "Part122" and substituting the words "Part270", and by removing the words"§ 122.23(c)" and substituting the words"§ 270.72".

§ 265.147 [Amended]48. Section 265.147 paragraphs (d) and

(e) are amended by removing the words"§ 122.15(a)(5)" and substituting thewords "§ 270.41".


removing the words "§ 122.23(c)(3)"from the comment after paragraph (a)and substituting words "§ 122.72(c)".IFR Doc. 83-7926 Filed 3-31-83; 8:45 am]

BILLING CODE 6560-50-M

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