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NPDES Program, continued

If the state does not have authorization to administer the NPDES program, then EPA will be the permitting authority. Therefore, the EPA regional office issues the permits, takes all the enforcement actions, and does the inspections and monitoring visits as necessary.

If a state, tribe, or territory has authorization, then it is the permitting authority and performs all of the day-to-day permit issuance and oversight activities. In this case, EPA acts in an oversight role, providing review and guidance for the state’s program. Under certain circumstances (e.g., objection to a permit, failure to enforce, failure to include required permit provisions—such as effluent limits), EPA could determine that the state action is insufficient and may issue its own permit.

Regardless of who is the permitting authority, all draft permits must be made available for at least a 30-day public review and comment period. If the public expresses sufficient interest during the comment period or if issues require clarifications, a public hearing may be scheduled.

After a final permit has been issued, stakeholders still have access to administrative (state/EPA) or judicial (courts) appeal processes. Clean Water Act permit programs, including the NPDES permit program, are structured to provide permit coverage to point sources in one of two ways: developing a unique permit for each discharger or developing a single permit that covers a large number of similar dischargers. These types of coverages are called individual permits and general permits, respectively. The following examples demonstrate how individual and general permits function under the NPDES program.

An individual permit is just what it sounds like. An individual facility gets its own unique permit designed for its specific discharge and situation. For example, ACME, Inc., has a process wastewater discharge to Pristine Creek. ACME completes an application that describes its operation and discharge and requests a permit to allow it to continue discharging. The permitting authority reviews the application and crafts and issues a permit that is unique to the ACME, Inc., facility and provides specific conditions that ACME must meet.

A general permit is a permit that covers a large number of similar facilities with a single permit document. In this case, the permitting authority identifies a large number of similar facilities and determines that the permit conditions that would apply to these facilities would be virtually identical. The permitting authority then crafts and issues a general permit that can be used to cover any discharger that meets criteria established by the permitting authority. Once the general permit is issued, any dischargers that think they meet the general permit criteria can submit a Notice of Intent (or other appropriate notification) to the permitting authority requesting coverage and promising to comply with the conditions in the permit. The permitting authority can then grant coverage or require the facility to apply for an individual permit.

General permits are limited by certain regulatory and practical constraints. The regulations at 40 CFR 122.28 require the permitting authority to define the geographical area and sources. Geographical area can be just about anything (e.g., watershed, county lines, state boundaries). Sources covered can include stormwater or a discharger category with similar operations, similar wastes, and needing similar limits. General permits appropriately control numerous small sources. The more complex the discharge, the more likely an individual permit will be required.

All individual NPDES permits include a certain set of basic elements. The first is perhaps the most obvious—a specific, numeric, measurable set of limits on the amount of various pollutants that can appear in the wastewater discharged by the facility into the nation’s waters. Such limits are often expressed as concentrations, combined with allowed volumes of discharge. Or, limits can be expressed as mass discharged per unit time (day, week, and so forth). Limits must be expressed in such a way that they cannot be met simply by diluting the facility’s effluents with clean water just before they are released into the receiving water.

As explained in more detail later, such limits can be either technology-based or water quality-based. Regardless of how they are derived, effluent limits are performance standards; a permittee is free to use any combination of process modification, recycling, end-of-pipe treatment, or other strategies to meet them.

NPDES permits also can require the use of certain structural or non-structural BMPs. For “traditional” point sources, municipal wastewater plants and industrial facilities, BMPs are supplemental to end-of-pipe performance standards. For wet weather-related point sources, such as combined sewer overflows (CSOs) and municipal and industrial stormwater runoff, BMPs are often the only “control” requirements in the permit.

If meeting the effluent limits in a permit will require upgrading in-plant or wastewater treatment processes, it would not be reasonable to require compliance with such limits upon issuance of the permit (in the case of existing sources). Hence, permits for such sources can include a compliance schedule. Such schedules usually include not only a final date upon which effluent limits must be met but also interim milestones, such as dates for onset of needed construction. EPA guidance specifies that compliance schedules extend no longer than the term of the permit.

Most individual NPDES permits include detailed monitoring requirements that specify what pollutants the permittee must monitor for in their discharge, how frequently the monitoring should be done, and what sampling and analytic techniques should be used. Although EPA and states conduct some inspections and compliance monitoring, the vast majority of data about the contents of the discharges from NPDES facilities are collected by the permittees themselves. In the past, permits required only monitoring of the facility’s discharges; but in recent years, some states have required some facilities to sample and analyze the waters into which they discharge as well.

If a permit contains monitoring requirements, it will include reporting requirements. Permittees are required to regularly submit the results of the monitoring required in their permit. Most commonly these Discharge Monitoring Reports must be submitted monthly; but in some cases they are less frequent. (Currently, general permits include few, if any, monitoring or reporting requirements.)

All NPDES permits include a standard set of clauses, including provisions for reopening the permit if new information or other specific circumstances justify possible changes, authority to revoke the permit for cause, and authority for the permitting authority to enter the facility and perform inspections. An NPDES permit also includes a cover page (permitting authority, permittee, statutory and regulatory authorities, and effective/expiration dates), special conditions (e.g., studies, compliance schedules), and standard conditions (basic provisions included in all permits). Along with a draft permit, the regulatory authority must include an explanation of how the discharge limits were derived.