termines that operation of the proposed facility or activity will violate applicable water quality standards, he shall so notify the applicant and the licensing or permitting agency, including his recommendations as to remedial measures necessary to bring the operation of the proposed facility into compliance with such standards.

§ 121.28 Termination of suspension.

Where a licensing or permitting agency, following a public hearing, suspends a license or permit after receiving the Regional Administrator's notice and recommendation pursuant to § 121.27, the applicant may submit evidence to the Regional Administrator that the facility or activity or the operation or conduct thereof has been modified so as not to violate water quality standards. If the Regional Administrator determines that water quality standards will not be violated, he shall so notify the licensing or permitting agency.

Subpart D-Consultations

§ 121.30 Review and advice.

The Regional Administrator may, and upon request shall, provide licensing and permitting agencies with determinations, definitions and interpretations with respect to the meaning and content of water quality standards where they have been federally approved under section 10 of the Act, and findings with respect to the application of all applicable water quality standards in particular cases and in specific circumstances relative to an activity for which a license or permit is sought. The Regional Administrator may, and upon request shall, also advise licensing and permitting agencies as to the status of compliance by dischargers with the conditions and requirements of applicable water quality standards. In cases where an activity for which a license or permit is sought will affect water quality, but for which there are no applicable water quality standards, the Regional Administrator may advise licensing or permitting agencies with respect to conditions of such license or permit to achieve compliance with the purpose of the Act.

Subpart B-Permit Application and Special NPDES Program Requirements

122.21 Application for a permit (applicable to State programs, see § 123.25). 122.22 Signatories to permit applications and reports (applicable to State programs, see § 123.25).

122.23 Concentrated animal feeding operations (applicable to State NPDES programs, see § 123.25).

122.24 Concentrated aquatic animal production facilities (applicable to State NPDES programs, see § 123.25). 122.25 Aquaculture projects (applicable to State NPDES programs, see § 123.25). 122.26 Storm water discharges (applicable to State NPDES programs, see § 123.25). 122.27 Silvicultural activities (applicable to State NPDES programs, see § 123.25). 122.28 General permits (applicable to State NPDES programs, see § 123.25). 122.29 New sources and new dischargers.

Subpart C-Permit Conditions

122.41 Conditions applicable to all permits (applicable to State programs, see § 123.25). 122.42 Additional conditions applicable to specified 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, standards

and other permit conditions (applicable to 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 to State programs, see § 123.25). 122.47 Schedules of compliance.

Sec.

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 by land application (applicable to State NPDES programs, see § 123.25).

Subpart D-Transfer, Modification, Revocation and Reissuance, and Termination of Permits

122.61 Transfer of permits (applicable to State programs, see § 123.25).

122.62 Modification or revocation and reissuance of permits (applicable to State programs, see § 123.25).

122.63 Minor modifications of permits. 122.64 Termination of permits (applicable to State programs, see § 123.25). APPENDIX A-NPDES PRIMARY INDUSTRY

CATEGORIES

APPENDIX B-CRITERIA FOR DETERMINING A CONCENTRATED ANIMAL FEEDING OPERATION (§ 122.23)

APPENDIX C-CRITERIA FOR DETERMINING A CONCENTRATED AQUATIC ANIMAL PRODUCTION FACILITY (§ 122.24)

APPENDIX D-NPDES PERMIT APPLICATION TESTING REQUIREMENTS (§ 122.21)

AUTHORITY: The Clean Water Act, 33 U.S.C. 1251 et seq.

SOURCE: 48 FR 14153, Apr. 1, 1983, unless otherwise noted.

Subpart A-Definitions and General Program Requirements

§ 122.1 Purpose and scope.

(a) Coverage. (1) These regulations contain provisions for the National Pollutant Discharge Elimination System (NPDES) Program under section 318, 402, and 405 of the Clean Water Act (CWA) (Pub. L. 92-500, as amended by Pub. L. 95-217, Pub. L. 95– 576, Pub. L. 96-483, Pub. L. 97-117, and Pub. L. 100-4; 33 U.S.C.1251 et seq.)

(2) These regulations cover basic EPA permitting requirements (Part 122), what a State must do to obtain approval to operate its program in lieu of a Federal program and minimum requirements for administering the approved State program (Part 123), and procedures for EPA processing of permit applications and appeals (Part 124). Part 124 is also applicable to other EPA permitting programs, as detailed in that part.

(b) Scope of the NPDES permit requirement. (1) The NPDES program requires permits for the discharge of "pollutants" from any "point source" into "waters of the United States." The terms "pollutant", "point source" and "waters of the United States" are defined in § 122.2.

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

(i) Concentrated animal feeding operations as defined in § 122.23; (ii) Concentrated aquatic production

§ 122.24;

animal

facilities as defined in

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

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

(v) Silvicultural point sources as defined in § 122.27.

(3) The permit program established under this Part also applies to owners or operators of any treatment works treating domestic sewage, whether or not the treatment works is otherwise required to obtain an NPDES permit in accordance with paragraph (a)(1) of this section, unless all requirements implementing section 405(d) of CWA applicable to the treatment works treating domestic sewage are included in a permit issued under the appropriate provisions of subtitle C of the Solid Waste Disposal Act, Part C of the Safe Drinking Water Act, the Marine Protection, Research, and Sanctuaries Act of 1972, or the Clean Air Act, or under State permit programs approved by the Administrator as adequate to assure compliance with section 405 of the CWA.

(4) The Regional Administrator may designate any person subject to the standards for sewage sludge use and disposal as a "treatment works treating domestic sewage" as defined in § 122.1, where he or she finds that a permit is necessary to protect public health and the environment from the adverse effects of sewage sludge or to ensure compliance with the technical standards for sludge use and disposal developed under CWA section 405(d). Any person designated as "treatment works treating domestic sewage" shall submit an application for a permit under § 122.21 within 120 days of

being notified by the Regional Administrator that a permit is required. The Regional Administrator's decision to designate a person as a "treatment works treating domestic sewage" under this paragraph shall be stated in the fact sheet or statement of basis for the permit.

(c) State programs. Certain requirements set forth in Part 122 and 124 are made applicable to approved State programs by reference in Part 123. These references are set forth in § 123.25. If a section or paragraph of Part 122 or 124 is applicable to States, through reference in § 123.25, that fact is signaled by the following words at the end of the section or paragraph heading: (Applicable to State programs, see § 123.25). If these words are absent, the section (or paragraph) applies only to EPA administered permits.

(d) Relation to other requirements— (1) Permit application forms. Applicants for EPA issued permits must submit their applications on EPA's permit application forms when available. Most of the information requested on these application forms is required by these regulations. The basic information required in the general form (Form 1) and the additional information required for NPDES applications (Forms 2 a through d) are listed in § 122.21. Applicants for State issued permits must use State forms which must require at a minimum the information listed in these sections.

(2) Technical Regulations. The NPDES permit program has separate additional regulations. These separate regulations are used by permit issuing authorities to determine what requirements must be placed in permits if they are issued. These separate regulations are located at 40 CFR Parts 125, 129, 133, 136, 40 CFR Subchapter N (Parts 400 through 460), and 40 CFR Part 503.

(e) Public participation. This rule establishes the requirements for public participation in EPA and State permit issuance and enforcement and related variance proceedings, and in the approval of State NPDES programs. These requirements carry out the purposes of the public participation requirements of 40 CFR Part 25

(Public Participation), and supersede the requirements of that part as they apply to actions covered under Parts 122, 123, and 124.

(f) State authorities. Nothing in Part 122, 123, or 124 precludes more stringent State regulation of any activity covered by these regulations, whether or not under an approved State program.

(g) Authority. (1) Section 301(a) of CWA provides that "Except as in compliance with this section and sections 302, 306, 307, 318, 402, and 404 of this Act, the discharge of any pollutant by any person shall be unlawful."

(2) Section 402(a)(1) of CWA provides in part that "The Administrator may, after opportunity for public hearing, issue a permit for the discharge of any pollutant, or combination of pollutants, upon condi

tion that such discharge will meet either all applicable requirements under sections 301, 302, 306, 307, 308, and 403 of this Act, or prior to the taking of necessary implementing actions relating to all such requirements, such conditions as the Administrator determines are necessary to carry out the provisions of this Act."

(3) Section 318(a) of CWA provides that "The Administrator is authorized, after public hearings, to permit the discharge of a specific pollutant or pollutants under controlled conditions associated with an approved aquaculture project under Federal or State supervision pursuant to section 402 of this Act."

(4) Section 405 of CWA provides, in part, that "Where the disposal of sewage sludge resulting from the operation of a treatment works as defined in section 212 of this Act (including the removal of in-place sewage sludge from one location and its deposit at another location) would result in any pollutant from such sewage sludge entering the navigable waters, such disposal is prohibited except in accordance with a permit issued by the Administrator under section 402 of this Act."

(5) Section 405(d)(4) of the CWA requires the Administrator, prior to promulgation of standards for sewage sludge use and disposal, to "impose conditions in permits issued to public

ly owned treatment works under section 402 of this Act, or take such other measures as the Administrator deems appropriate to protect public health and the environment from any adverse effects which may occur from toxic pollutants in sewage sludge."

(6) Section 405(f) provides that NPDES permits must include requirements implementing the standards for sludge use and disposal (40 CFR Part 503) "unless such requirements have been included in a permit issued under the appropriate provisions of subtitle C of the Solid Waste Disposal Act, part C of the Safe Drinking Water Act, the Marine Protection, Research, and Sanctuaries Act of 1972, or the Clean Air Act, or under State permit programs approved by the Administrator Section 405(f) also authorizes the Administrator to issue permits with requirements for sludge use or disposal that assure compliance with 40 CFR Part 503 to any treatment works treating domestic sewage that is not subject to NPDES (i.e., has no point source discharge) and has not been issued a permit that includes applicable 40 CFR Part 503 standards under the other permit programs listed in section 405(f)(1) of the CWA.

(7) Sections 402(b), 318 (b) and (c), and 405 (c) and (f) of CWA authorize EPA approval of State permit programs for discharges from point sources, discharges to aquaculture projects, and use and disposal of sewage sludge.

(8) Section 304(i) of CWA provides that the Administrator shall promulgate guidelines establishing uniform application forms and other minimum requirements for the acquisition of information from dischargers in approved States and establishing minimum procedural and other elements of approved State NPDES programs.

(9) Section 501(a) of CWA provides that "The Administrator is authorized to prescribe such regulations as are necessary to carry out his functions under this Act."

(10) Section 101(e) of CWA provides that "Public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program established by the Administrator or any State

under this Act shall be provided for, encouraged, and assisted by the Administrator and the States. The Administrator, in cooperation with the States, shall develop and publish regulations specifying minimum guidelines for public participation in such processes."

[48 FR 14153, Apr. 1, 1983, as amended at 54 FR 18781, May 2, 1989]

§ 122.2 Definitions.

The following definitions apply to Parts 122, 123, and 124. Terms not defined in this section have the meaning given by CWA. When a defined term appears in a definition, the defined term is sometimes placed in quotation marks as an aid to readers.

Administrator means the Administrator of the United States Environmental Protection Agency, or an authorized representative.

Applicable standards and limitations means all State, interstate, and federal standards and limitations to which a “discharge," a "sewage sludge use or disposal practice," or a related activity is subject under the CWA, including "effluent limitations," water quality standards, standards of performance, toxic effluent standards or prohibitions, "best management practices," pretreatment standards, and "standards for sewage sludge use or disposal" under sections 301, 302, 303, 304, 306, 307, 308, 403 and 405 of CWA.

Application means the EPA standard national forms for applying for a permit, including any additions, revisions or modifications to the forms; or forms approved by EPA for use in "approved States," including any approved modifications or revisions.

Approved program or approved State means a State or interstate program which has been approved or authorized by EPA under Part 123.

Average monthly discharge limitation means the highest allowable average of "daily discharges" over a calendar month, calculated as the sum of all "daily discharges” measured during a calendar month divided by the number of "daily discharges" measured during that month.

Average weekly discharge limitation means the highest allowable average

of "daily discharges" over a calendar week, calculated as the sum of all “daily discharges” measured during a calendar week divided by the number of "daily discharges" measured during that week. Best

management

practices ("BMPs") means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of "waters of the United States." BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage.

BMPS means "best management practices."

Class I sludge management facility means any POTW identified under 40 CFR 403.8(a) as being required to have an approved pretreatment program (including such POTWs located in a State that has elected to assume local program responsibilities pursuant to 40 CFR 403.10(e)) and any other treatment works treating domestic sewage classified as a Class I sludge management facility by the Regional Administrator, or, in the case of approved State programs, the Regional Administrator in conjunction with the State Director, because of the potential for its sludge use or disposal practices to adversely affect public health and the environment.

Contiguous zone means the entire zone established by the United States under Article 24 of the Convention on the Territorial Sea and the Contiguous Zone.

Continuous discharge means a “discharge" which occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities.

CWA means the Clean Water Act (formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972) Pub. L. 92-500, as amended by Pub. L. 95-217, Pub. L. 95-576, Pub. L. 96-483 and Pub. L. 97117, 33 U.S.C. 1251 et seq.

the

CWA and regulations means Clean Water Act (CWA) and applicable regulations promulgated thereunder. In the case of an approved State program, it includes State program requirements.

Daily discharge means the "discharge of a pollutant" measured during a calendar day or any 24-hour period that reasonably represents the calendar day for purposes of sampling. For pollutants with limitations expressed in units of mass, the "daily discharge" is calculated as the total mass of the pollutant discharged over the day. For pollutants with limitations expressed in other units of measurement, the "daily discharge" is calculated as the average measurement of the pollutant over the day.

Direct discharge means the "discharge of a pollutant."

Director means the Regional Administrator or the State Director, as the context requires, or an authorized representative. When there is no "approved State program," and there is an EPA administered program, "Director" means the Regional Administrator. When there is an approved State program, "Director" normally means the State Director. In some circumstances, however, EPA retains the authority to take certain actions even when there is an approved State program. (For example, when EPA has issued an NPDES permit prior to the approval of a State program, EPA may retain jurisdiction over that permit after program approval, see § 123.1.) In such cases, the term "Director" means the Regional Administrator and not the State Director.

Discharge when used without qualification means the "discharge of a pollutant."

Discharge of a pollutant means: