11.3 Administrative Actions After Final Permit Issuance Once the final permit has been issued, the issuing authority should integrate the permit limitations and any special conditions into the NPDES tracking system ( i. e., the permit compliance system ( PCS)). This will ensure that the facility's performance will be tracked and the permitting agency will be alerted to the need for corrective action in the event of violations of permit limitations, terms, or conditions.

After final permit issuance, interested parties have other opportunities to change the permit thorough permit appeals, major/ minor permit modifications, permit termination or permit transfer. These administrative procedures are described below.

NPDES Permit Writers' Manual  203 Chapter 11 Administrative Process 11.3.1 Permit Appeals In the process of developing a draft permit and during the public notice period,

the permit writer should carefully consider the legitimate concerns of the permittee as well as the concerns of any third party who may have an interest in the permit terms and conditions. However, there will inevitably be situations in which a permit is issued in spite of the objections of the permittee or a third party. In such instances, the permittee or an interested party may choose to legally contest or appeal the NPDES permit.

Various mechanisms are available to resolve legal challenges to NPDES permits. In the case of EPA issued permits, the administrative procedure involved is called an evidentiary hearing. Many NPDES States and Tribes have similar administrative procedures designed to resolve challenges to the conditions of a permit.

These procedures involve hearings presided over by an administrative law judge. For the sake of convenience, these hearings will hereafter be referred to as evidentiary hearings. They will naturally be known by different names in different State or Tribe jurisdictions. However, permit writers will, from time to time, be involved in permit appeals and will need to address the types of issues discussed below.

Aside from preparation of the administrative record and notices, the permit writer may not be concerned with procedural matters relating to evidentiary hearings.

All requests for evidentiary hearings are coordinated through the office of the EPA Regional Counsel or the appropriate State legal personnel. The permit writer's first involvement with the hearing process will come as a result of designation of the trial staff and his/ her role will be limited to that of a witness and technical advisor to legal counsel.

A permit writer may be required to give a deposition during which the appellant attorney conducts the questioning that would otherwise occur in the hearing. The deposition is transcribed and presented as evidence. The appellant attorney may ask some of the same questions at the hearing.

To prepare for a deposition and testimony, the permit writer should be familiar with those laws, regulations, and policies that may affect the permit. The permit writer should be thoroughly familiar with the technical basis for the permit conditions. For 204  NPDES Permit Writers' Manual Administrative Process Chapter 11 example, if the effluent limits are based on water quality requirements, the permit writer should thoroughly study any applicable basin plan or water quality simulation used to develop the effluent limits and be prepared to defend any assumptions inherent in the plan or simulation. If BPJ limits are based on proposed effluent guidelines, it will be necessary to carefully review not only the guidelines themselves but all applicable data, including the development document for the specific guidelines.

The technical defense of other BPJ requirements is much more difficult. The permit writer should be sure that ( 1) the information on which BPJ limits are based are unimpeachable, ( 2) the limits were derived from the data in a logical manner, in accordance with established procedures, and ( 3) the BPJ limits so derived are technically sound and meet BCT or BAT standards for economic reasonableness.

As technical advisor to legal counsel, the permit writer's most important function is to develop direct testimony in support of contested permit conditions. No attempt should be made to support technically indefensible conditions. Contested permit conditions that are not technically defensible and are not based on any legal requirement should be brought to counsel's attention, with advice that EPA or the State agency withdraw those conditions.

The second most important advisory function of the permit writer is assisting counsel in the development of questions for cross examination of the opposing witnesses. Questions should be restricted to the subject material covered by the witness' direct testimony and should be designed to elicit an affirmative or negative response, rather than an essay type response. If a question must be phrased in such a way that the witness could attempt lengthy explanations, counsel should be forewarned.

Finally, the permit writer should remember that in requesting an evidentiary hearing, the permittee has declared an adversary relationship with the regulatory agency, and the permit writer must therefore refrain from discussions about the case without prior consultation with legal counsel. In the role of witness and/ or technical advisor, the permit writer should:

° Cultivate credibility ° Never imply or admit weakness in his or her area of expertise NPDES Permit Writers' Manual  205 Chapter 11 Administrative Process ° Never attempt to testify about subjects outside his or her area of expertise ° Always maintain good communication with counsel.

Where the permitee is granted relief at the evidentiary hearing, the Administrative Law Judge generally will order appropriate relief. Where a request for an evidentiary hearing is denied, the permittee may file a notice of appeal and petition for review with the Environmental Appeals Board ( EAB), which may or may not grant an evidentiary hearing based on the factual and legal issues alleged. Similarly, where a permittee is denied relief at an evidentiary hearing, the permittee may appeal to the EAB to overturn the hearing decision. Finally, under certain circumstances decisions of the EAB against the permittee may be appealed in Federal court.

11.3.2 Permit Modification, Revocation, Termination, and Transfer After the final permit is issued, the permit may still need to be modified or revoked prior to the expiration date. Modifications differ from revocations and reissuance. In a permit modification, only the conditions subject to change are reconsidered while all other permit conditions remain in effect. Conversely, the entire permit may be reconsidered when it is revoked and reissued. A permit modification may be triggered in several ways. For example, a representative of the regulatory agency may conduct an inspection of the facility that indicated a need for the modification ( i. e., the improper classification of an industry), or information submitted by the permittee may suggest the need for a change. Of course, any interested person may request that a permit modification be made.

There are two classifications of modifications: major and minor. From a procedural standpoint, they differ primarily with respect to the public notice requirement. Major modifications require public notice; minor modifications do not.

Virtually all modifications that result in less stringent conditions must be treated as major modifications, with provisions for public notice and comment. Generally speaking, a permit will not need to be modified during the term of the permit if the facility can fully comply with permit conditions. Conditions that would necessitate a major modification of a permit are described in 40 CFR § 122.62 and shown in Exhibit 11 7.

206  NPDES Permit Writers' Manual Administrative Process Chapter 11 EXHIBIT 11 7 Conditions Requiring Major Modification ° Reopener   Conditions in the permit that required it to be reopened under certain circumstances.

° Technical Mistakes   To correct technical mistakes or mistaken interpretations of law made in developing the permit conditions.

° Failure to Notify   Upon failure of an approved State to notify another State whose waters may be affected by a discharge from the approved State.

° Alterations   When alterations or changes in operations occur that justify new conditions that are different from the existing permit.

° New Information   When information is received that was not available at the time of permit issuance.

° New Regulations   When standards or regulations on which the permit was based have been changed by promulgation of amended standards or regulations or by judicial decision.

° Compliance Schedules for Innovative or Alternative Facilities   To modify the compliance schedule in light of the additional time that may be required to construct this type of facility; or when good cause for modification of a compliance schedule exists, such as an Act of God, strike, or flood.

° Pretreatment   To require that an approved program be implemented or to change the schedule for program development.

° Failed BPJ Compliance   When BPJ technology is installed and properly operated and maintained but the permittee is unable to meet its limits, the limits may be reduced to reflect actual removal; but in no case may they be less than the guideline limits. If BPJ operation and maintenance costs are totally disproportionate to the costs considered in a subsequent guideline, the permittee may be allowed to backslide to the guideline limits.

° Non Limited Pollutants   When the level of discharge of any pollutant that is not limited in the permit exceeds the level that can be achieved by the technology based treatment requirements appropriate to the permit.

° Variance Requests   When requests for variances, net effluent limitations, pretreatment, etc., are filed within the specified time but not granted until after permit issuance.

° Adjust limits to reflect net pollutant treatment   Upon request of a permittee who qualifies for effluent limitations on a net basis under 40 CFR § § 122.45( g) and ( h).

° Insert CWA § 307( a) toxic or 40 CFR Part 503 sludge use/ disposal requirements.

° Notification Levels   To establish notification levels for toxic pollutants that are not limited in the permit but must be reported if concentrations in the discharge exceed these levels.

Minor modifications are generally non substantive changes ( e. g., typographical errors that require more stringent permit conditions). The conditions for minor modifications, described in 40 CFR § 122.63, are shown in Exhibit 11 8.

NPDES Permit Writers' Manual  207 Chapter 11 Administrative Process 11.3.3 Termination of Permits EXHIBIT 11 8 Conditions Requiring Minor Modification ° Typographical errors must be corrected. ° More frequent monitoring or reporting is necessary. ° An interim compliance date in the schedule of compliance needs revision, provided the new date is not more than 120 days after the date specified in the permit and does not interfere with attainment of the final compliance date requirement. ° Ownership has changed but no other change is necessary. ° The construction schedule for a new source discharger needs revision. ° A point source outfall that does not result in the discharge of pollutants from other outfalls must be deleted from the permit. ° An approved local pretreatment program must be incorporated into the permit.

Situations may arise during the life of the permit that are cause for termination ( i. e., cancellation, revocation) of the permit. Such circumstances include the following ( see 40 CFR § 122.62( b)):

° Noncompliance by the permittee with any condition of the permit ° Misrepresentation or omission of relevant facts by the permittee ° A determination that the permitted activity endangers human health or the environment, either in an emergency or other situation ° A temporary or permanent reduction or elimination of a discharge ( e. g., plant closure).

Once the permit is terminated, it can be placed into effect again only by the reissuance process, which requires a new permit application. All of the above situations may also be addressed through the permit modification process on a case by case determination.

208  NPDES Permit Writers' Manual Administrative Process Chapter 11 11.3.4 Transfer of Permits Regulatory agencies will occasionally receive notification of a change in ownership of a facility covered by a NPDES permit. Such changes require that a permit be transferred by one of two provisions:

° Transfer by Modification or Revocation   The transfer may be made during the process of modification, either major or minor. It may also be addressed by revoking and subsequently reissuing the permit.

° Automatic Transfer   A permit may be automatically transferred to a new permittee if three conditions are met:

  The current permittee notifies the Director 30 days in advance of the transfer date.

  The notice includes a written agreement between the old and new owner on the terms of the transfer.

  The Director of the regulatory agency does not indicate that the subject permit will be modified or revoked.

NPDES Permit Writers' Manual  209 Chapter 10 Variances to Permit Requirements and Other Regulatory Considerations To address unique permitting situations, the CWA and NPDES regulations allow permit writers to grant variances under certain prescribed conditions. These variances may apply to either technology based or water quality based regulatory requirements.

The variances available under the NPDES Program are described below.

The NPDES Program has also established certain requirements to ensure that NPDES permits address the statutory and regulatory requirements of other environmental programs. The permit writer should be aware of these other programs in developing permit conditions, and work with the regulatory agencies that oversee these programs. Section 10.3 describes these considerations.

10.1 Variances to Technology Based Permit Requirements In addition to specifying national goals for water pollution control, the CWA provides a mechanism for modification of the technology based requirements of the CWA for exceptional cases. These modifications are called variances. Very specific data requirements must be met by an applicant before a variance may be granted. As NPDES Permit Writers' Manual  171 Variances to Permit Requirements and Chapter 10 Other Regulatory Considerations the term implies, a variance is the unusual situation, and the permit writer should not expect to routinely receive variance requests. Nevertheless, the permit writer should be aware of the major types of variances and the basic requirements for each,

because the permit writer will most likely be the person to conduct the initial reviews of such requests before submitting them for review to the State Director ( if applicable),

the EPA Regional office, and EPA Headquarters. The permit writer should consult 40 CFR § 124.62 for the procedures for decisions on the various types of variances.

With one exception ( fundamentally different factors variance), a variance request must be submitted before the close of the public comment period of the permit. The following paragraphs discuss variances and the factors that should be considered in a technical review of the variance request.

10.1.1 Economic Variances Section 301( c) of the CWA provides for a variance for nonconventional pollutants from BAT based effluent limitations due to economic factors. Note that there are no implementing regulations for § 301( c); rather, variance requests must be made and reviewed based on the statutory language in CWA § 301( c). The variance may also apply to non guideline limits in accordance with 40 CFR § 122.21( m)( 2)( ii).

The request for the variance from effluent limitations developed from BAT guidelines is normally filed by the discharger during the public notice period for the draft permit.

Other filing time periods may apply, as specified in 40 CFR § 122.21( m)( 2). The application must show that the modified requirements:

° Represent the maximum use of technology within the economic capability of the owner or operator; and ° Will result in further progress toward the no discharge goal.

The methodologies for determining economic capability for utilities is different than that used for other industries. Utilities should perform two financial calculations.

Generally, EPA will only grant a variance if both tests indicate that the pollution control equipment is not economically achievable and the applicant can demonstrate " reasonable further progress." Other industry categories must calculate three financial tests to determine if they are eligible on economic grounds for a 301( c) variance.

172  NPDES Permit Writers' Manual Variances to Permit Requirements and Other Regulatory Considerations Chapter 10 Guidance for conducting these financial tests is available from EPA's Office of Wastewater Management. Generally, EPA will only grant a variance if all three tests indicate that the required pollution control is not economically achievable and the applicant makes the requisite demonstration about " reasonable further progress."

With respect to the second requirement for a 301( c) modification ( reasonable further progress toward the no discharge goal), the applicant must, at a minimum,

demonstrate compliance with all applicable BPT limitations and pertinent water quality standards. In addition, the proposed alternative must provide for a reasonable degree of improvement in the applicant's discharge.

10.1.2 Variances Based on Localized Environmental Factors Section 301( g) of the CWA provides for a variance for certain nonconventional pollutants from BAT effluent guidelines due to localized environmental factors. These pollutants include ammonia, chlorine, color, iron, and total phenols. The discharger must file a variance application that meets the following requirements:

° The modified requirements must result in compliance with BPT and water quality standards of the receiving stream.

° No additional treatment will be required of other point or nonpoint source dischargers as a result of the variance approval.

° The modified requirements will not interfere with attainment or maintenance of water quality to protect public water supplies, or with protection and propagation of a balanced population of shellfish, fish, and wildfowl, and will allow recreational activities in and on the water. Also, the modified requirements will not result in quantities of pollutants that may reasonably be anticipated to pose an unacceptable risk to human health or the environment, cause acute or chronic toxicity, or promote synergistic properties.

The permit writer should review the request to ensure that it complies with each of the requirements for this type of variance. This variance request involves a great deal of water quality assessment, including aquatic toxicity, mixing zone and dilution model analysis, and possible site specific criterion development. In addition, many complex human health effects must be assessed, including carcinogenicity,

teratogenicity, mutagenicity, bioaccumulation, and synergistic propensities. All permit NPDES Permit Writers' Manual  173 Variances to Permit Requirements and Chapter 10 Other Regulatory Considerations writers should use the EPA draft 301( g) technical guidance manual to assess a completed variance request. Typical industries that have applied for 301( g) variances include Iron and Steel Manufacturing, Steam Electric Power Generating, Inorganic Chemicals Manufacturing, Nonferrous Metals Manufacturing, Aluminum Forming, and Pesticides Manufacturing facilities.

10.1.3 Marine Discharge Variances Section 301( h) of the CWA provides for variances from secondary treatment standards for POTWs that discharge into marine waters if the modified requirements do not interfere with the attainment or maintenance of water quality. EPA has promulgated specific regulations pertaining to CWA § 301( h) that are provided in 40 CFR Part 125, Subpart G.

All 301( h) modified permits must contain the following specific permit conditions:

° Effluent limitations and mass loadings that will assure compliance with 40 CFR Part 125, Subpart G ° Compliance schedules for pretreatment program development, a nonindustrial toxics control program, and control of combined sewer overflows ° Monitoring program requirements that include biomonitoring, water quality, and effluent monitoring ° Reporting requirements that include the results of the monitoring programs.

Also, no new or substantially increased discharges from the point source of the affected pollutant can be released above that volume of discharge specified in the permit.

EPA has developed several guidance manuals related to 301( h) variances,

including the Revised Section 301( h) Technical Support Document. 73 73USEPA ( 1982). Revised Section 301( h) Technical Support Document. EPA 430/ 9 82 011. Office of Water.

174  NPDES Permit Writers' Manual Variances to Permit Requirements and Other Regulatory Considerations Chapter 10 10.1.4 Fundamentally Different Factors Variances Section 301( n) of the CWA provides for variances based upon fundamentally different factors ( FDF) for BAT and BCT pollutants while 40 CFR Part 125, Subpart D provides the regulatory authority for BPT variances. FDF variances for direct dischargers are available from effluent limitations guidelines for toxic, conventional,

and nonconventional pollutants if the individual facility is found to be fundamentally different from the factors considered in establishing the effluent guidelines. There is no FDF variance allowed from NSPS. The FDF variance for BPT must be filed by the close of the public comment period under 40 CFR § 124.10. The FDF variance for BAT or BCT must be requested by the discharger within 180 days of the guideline promulgation. Where a FDF variance request is approved, calculated alternative limits cannot be any less stringent than justified by the fundamental difference and cannot cause violations of water quality standards.

Factors needed to justify a BPT FDF variance must be related to a discharger's facilities, equipment, processes, and compliance cost that are different from those considered in the development of the guidelines. Factors for BAT and BCT variance requests are similar except that cost cannot be considered. Additional factors that cannot be considered for any FDF variance request include the feasibility of installing the necessary treatment within the given time frame, a claim that the limits cannot be achieved with the given technology ( unless supported with data), the discharger's ability to pay, or the impact on local receiving water quality. The review or proposal of an FDF variance is completed on a case by case basis. The burden of proof lies with the entity requesting the variance.

10.1.5 Thermal Discharge Variances Section 316( a) of the CWA provides for variances from effluent limitations for the thermal component of a discharge. Regulations for submitting and reviewing thermal discharge variance requests are promulgated at 40 CFR Part 125, Subpart H.

Less stringent alternative thermal effluent limits may be included in permits if the discharger demonstrates that such effluent limits are more stringent than necessary to assure the protection and propagation of a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge is NPDES Permit Writers' Manual  175 Variances to Permit Requirements and Chapter 10 Other Regulatory Considerations made, taking into account the cumulative impact of its thermal discharge together with all other significant impacts on the species affected.

10.1.6 Net Credits In some cases, solely as a result of the level of pollutants in the intake water,

facilities are faced with situations in which technology based limits are difficult or impossible to meet with BAT/ BCT technology. Under certain circumstances, the NPDES regulations allow credit for pollutants in intake water. The following requirements have been established in 40 CFR § 122.45( g) for establishing net limitations:

° Credit for generic pollutants, such as BOD 5 or TSS, are only authorized where the constituents resulting in the effluent BOD 5 and the TSS are similar between the intake water and the discharge.

° Credit is only authorized up to the extent necessary to meet the applicable limitation or standard, with a maximum value equal to the influent concentration.

° Intake water must be taken from the same body of water into which the discharge is made.

° Net credits do not apply to the discharge of raw water clarifier sludge generated during the treatment of intake water.

Permit writers are authorized to grant net credits for the quantity of pollutants in the intake water where the applicable effluent guidelines specify that the guidelines are to be applied on a net basis or where the pollution control technology would, if properly installed and operated, meet applicable effluent guidelines limitations and standards in the absence of the pollutants in the intake waters.

10.2 Variances to Water Quality Based Permit Requirements Several types of variances exist that may change the fundamental basis of water quality based effluent limitations, specifically:

° Site specific water quality criteria modification, ° Designated use reclassification, and ° Water quality standard variance.

Each of these variances are described below.

176  NPDES Permit Writers' Manual Variances to Permit Requirements and Other Regulatory Considerations Chapter 10 10.2.1 Site Specific Water Quality Criteria Modification Section 304( a) of the CWA recommends procedures for States to develop water quality criteria. The State does have the option of modifying water quality criteria on a site specific basis. Setting site specific criteria may be appropriate where background water quality parameters, such as pH, hardness, temperature, and color appear to differ significantly from the laboratory water used to develop the CWA § 304( a) criteria; or the types of local aquatic organisms differ significantly from those actually tested in developing the CWA § 304( a) criteria. Modifications change water quality criteria permanently, while maintaining the existing designated uses.

10.2.2 Designated Use Reclassification Once a use has been designated for a particular water body or segment, the water body or water body segment cannot be reclassified for a different use except under specific conditions. To remove a designated use, as specified in Section 101( a)( 2) of the CWA, the State must perform a use attainability analysis pursuant to 40 CFR § 131.10( j). The Water Quality Standards Handbook: Second Edition 74 discusses use attainability analyses in greater detail. Reclassifying a water body causes a permanent change in the water quality standard for that water body.

10.2.3 Water Quality Standard Variance Water quality standard variances require similar substantive and procedural requirements as removing a designated use, but unlike use removal, variances are both discharger and pollutant specific, are time limited, and do not forego the currently designated use of a water body. A variance is appropriate where the State believes that the standard can be ultimately attained. By maintaining the standard rather than changing it, the State will assure that further progress is made in improving the water quality and attaining the standard. State adopted variances have been approved by EPA where, among other things, the State demonstrates, consistent with 40 CFR Part 131, that meeting the standard is unattainable based on one or more of the grounds outlined in 40 CFR § 131.10( g). The variance is granted for a specified period of time 74USEPA ( 1994). Water Quality Standards Handbook: Second Edition. EPA 823 B 94 005a. Office of Water.

NPDES Permit Writers' Manual  177 Variances to Permit Requirements and Chapter 10 Other Regulatory Considerations and rejustified at least every 3 years as reasonable progress is made toward meeting the standards.

Modifications of or variances to water quality standards have several effects on permit limits. Specifically, these variances change the fundamental basis of water quality based effluent limits, potentially impacting the reasonable potential determination and possibly resulting in more or less stringent limitations. It is the permit writer's responsibility to ensure that the variance is properly reflected in the NPDES permit.

10.3 Additional Programmatic Considerations and Requirements This section addresses additional programmatic requirements that must be considered during permit development. These requirements include anti backsliding and compliance with other Federal laws.

10.3.1 Anti Backsliding In general, the term " anti backsliding" refers to a statutory provision that prohibits the renewal, reissuance, or modification of an existing NPDES permit that contains effluents limits, permit conditions, or standards that are less stringent than those established in the previous permit. There are, however, exceptions to the prohibition   determining the applicability and circumstances of the exceptions requires a familiarity with both the statutory and regulatory language that addresses the issue of " anti backsliding."

Section 402( o) of the Clean Water Act establishes express statutory language prohibiting the backsliding of effluent limitations. Section 402( o) consists of three main parts. First, section 402( o)( 1) prohibits ( subject to exceptions in sections 303( d)( 4)

and/ or 402( o)( 2)) the relaxation of effluent limitations for two situations:

( 1) When a permittee seeks to revise a technology based effluent limitation based on best professional judgment to reflect a subsequently promulgated effluent guideline which is less stringent, and 178  NPDES Permit Writers' Manual Variances to Permit Requirements and Other Regulatory Considerations Chapter 10 ( 2) When a permittee seeks relaxation of an effluent limitation which is based upon a State treatment standard or water quality standard.

Second, Section 402( o)( 2) outlines specific exceptions to the general prohibition against establishment of less stringent effluent limitations. Codified in the NPDES regulations at 40 CFR 122.44( l), Section 402( o)( 2) provided that the establishment of less stringent limits may be allowed where:

( 1) There have been material and substantial alternations or additions to the permitted facility which justify this relaxation.

( 2) New information ( other than revised regulations, guidance, or test methods) is available that was not available at the time of permit issuance which would have justified a less stringent effluent limitation.

( 3) Technical mistakes or mistaken interpretations of the law were made in issuing the permit under Section 402( a)( 1)( b).

( 4) Good cause exists due to events beyond the permittee's control ( e. g., acts of God) and for which there is no reasonably available remedy.

( 5) The permit has been modified under 40 CFR § 122.62, or a variance has been granted.

( 6) The permittee has installed and properly operated and maintained required treatment facilities but still has been unable to meet the permit limitations ( relaxation may only be allowed to the treatment levels actually achieved).

Although the statute identified six exceptions where effluent limitations may be relaxed, the language specifically stated that exceptions 3 and 5 ( as listed above) do not apply to water quality based effluent limitations. Thus, exceptions 3 and 5 would only apply to technology based effluent limitations derived using best professional judgment.

Third, Section 402( o)( 3) prohibits the relaxation of effluent limitations in all cases if a revised effluent limitation would result in a violation of applicable effluent limitation guidelines or water quality standards, including antidegradation requirements.

Thus, even if any of the backsliding exceptions outlined in either the statute or NPDES Permit Writers' Manual  179 Variances to Permit Requirements and Chapter 10 Other Regulatory Considerations regulations are applicable and met, Section 402( o)( 3) acts as a floor and restricts the extent to which effluent limitations may be relaxed. This requirement affirms existing provisions of the CWA that require permit limits, standards, and conditions to ensure compliance with applicable technology based limits and water quality standards.

EPA's current regulations which address the issue of anti backsliding reflect the prohibition imposed by Section 402( o) for the first situation; revision of existing BPJbased permit limitations to reflect subsequently issued effluent guidelines ( 40 CFR 122.44( l)( 2)). However, the regulations have not been revised to reflect the prohibition of backsliding for the second situation: relaxation of effluent limitations established on the basis of Sections 301( b)( 1)( C) or 303( d) or ( 3). EPA believes the water quality provisions must be implemented based upon interpretation of the CWA in the meantime. As such, the remainder of the discussion on anti backsliding provisions will focus on clarifying the intent of the statute as it relates to relaxation of water qualitybased effluent limitations. In addition, Exhibit 10 1 provides a graphical interpretation of the backsliding provisions as they related to the relaxation of WQBELs.

EPA has consistently interpreted Section 402( o)( 1) of the CWA to allow relaxation of water quality based effluent limitations ( WQBELs) if either the requirements of Section 402( o)( 2) or section 303( d)( 4) are met. These two provisions constitute independent exceptions to the prohibition against relaxation of permit limits.

If either is met, relaxation is permissible.

Section 303( d)( 4) has two parts: paragraph ( A) which applies to "

nonattainment waters" and paragraph ( B) which applies to " attainment waters."

° Non attainment water   Section 303( d)( 4)( A) allows establishment of less stringent WQBEL when the receiving water has been identified as not meeting applicable water quality standards ( i. e., a " nonattainment water"), if the permittee meets two conditions. First, the existing WQBEL must have been based on a total maximum daily load ( TMDL) or other wasteload allocation ( WLA) established under Section 303. Second, relaxation of a WQBEL is only allowed if attainment of water quality standards must be ensured.

° Attainment water   Section 303( d)( 4)( B) applies to waters where the water quality equals or exceeds levels necessary to protect the designated use, or to otherwise meet applicable water quality standards ( i. e., an " attainment 180  NPDES Permit Writers' Manual Variances to Permit Requirements and Other Regulatory Considerations Chapter 10 EXHIBIT 10 1Anti Backsliding Rules Relating to Water Quality Based Effluent Limitations EXHIBIT 10 1 Anti Backsliding Rules Relating to Water Quality Based Effluent Limitations Yes Yes No No Yes Yes Yes No 402( o)( 1)/ 303( d)( 4)

Are water quality standards attained? 402( o)( 2)

Is a listed exception met?

Is effluent limit based on a State water quality standard?

303( d)( 4)( B)

Attainment waters Is revision consistent with antidegadation? 303( d)( 4)( A)

Non Attainment waters Is limit based on aTMDL/ WLA?

Is attainment of water quality standards assured?

( including antidegradation?)

Revision not Allowed Revision allowed Revision not allowed No Yes No See existing regulations 40 C. F. R. 122.44( I)

402( o)( 3)

Does revision comply with effluent guidelines and water quality standard? No 100D 03 or NPDES Permit Writers' Manual  181 Variances to Permit Requirements and Chapter 10 Other Regulatory Considerations water"). Under Section 303( d)( 4)( B), WQBELs may only be relaxed where the action is consistent with State's anti degradation policy.

As previously mentioned, Section 402( o)( 2) outlines specific exceptions to the general prohibition against backsliding from WQBELs. These exceptions are independent of the Section 303( d)( 4) exception discussed above and are also applicable to the backsliding of BPJ limits to reflect subsequently promulgated less stringent guidelines.

Finally, all other types of backsliding [ for example, backsliding from effluent guideline derived limits, from new source performance standards, from existing BPJ limits to new BPJ limits, or from water quality related standards or conditions ( except for effluent limitations)] remain unaffected by the 1987 WQA amendments and EPA's existing regulations at 40 CFR 122.44( l)( 1) will continue to govern them. This is because Section 402( o) only prohibits the backsliding of " effluent limits," not other standards or conditions such as monitoring frequency or changes in species or protocol for whole effluent toxicity ( WET) testing. The relaxation of all other types of standards or conditions contained in a permit are, however, subject to EPA's existing backsliding regulations at 40 CFR 122.41( l)( 1). Under these regulations, a permittee must meet a cause for modification in order to allow relaxation.

182  NPDES Permit Writers' Manual Variances to Permit Requirements and Other Regulatory Considerations Chapter 10 Example 1 Scenario:

° A POTW seeks to relax its WQBEL for pollutant X.

° Current permit limitation is based on the TMDL and WLA for the POTW developed in accordance with 40 CFR 130.7.

° The POTW is in compliance with its existing limitation and the applicable water quality standards for pollutant X is attained.

° The POTW has developed new models with new river flow information, which indicate that the water quality standards for pollutant X would be maintained with a relaxed permit limitation.

° May the effluent limitation for pollutant X be relaxed?

Answer:

Possibly. Under the interpretation discussed above, WQBELs may be relaxed where one of the exceptions in § 402( o)( 1) or 40 CFR 122.44( l)( 2) are met. In this case, although new information is being relied on to request the modification, § 402( o)( 2) will not justify the request unless the State reduces the pollutant loadings from other point sources or non point sources of pollution. This is because, as discussed above, paragraph § 402( o)( 2) restricts the use of new information to cases where there is a decrease in the amount of pollutants being discharged.

The § 402( o)( 1) exceptions, on the other hand, may justify the request. In this case, the paragraph ( o)( 1) exception that is relevant is the reference to § 303( d)( 4)( B). It provides that for receiving waters that where water quality standards are attained, permit limitations based on a TMDL/ WLA or other permit standard may be relaxed only if a State's antidegradation policy are met.

Example 2 Scenario:

° The State has established a technology based treatment standard for fecal coliform pursuant to § 301( b)( 1)( C).

° The State later relaxes this standard.

° A POTW, which has been in violation of this limit, requests a revision of its permit limit for fecal coliform to reflect the new standard.

° Water quality standards for fecal coliform are not being attained.

° Models show that attainment of water quality standards will be assured if the POTW complies with a revised, relaxed permit limitation for fecal coliform.

° There was no TMDL or WLA performed because the standard was a State technology based standard.

° May the permit limitation be relaxed?

Answer:

No. Under § 402( o)( 1), the applicable provision is § 303( d)( 4)( A). This subsection does not authorize backsliding in this case because it only applies to permit limitations based on a TMDL/ WLA. Here, the limitation in question is based on a type of State treatment standard.

Furthermore, if the permit sought to apply the § 402( o)( 2) exceptions, the new information provision would not allow the revision. New information does not include " revised regulations."

NPDES Permit Writers' Manual  183 Variances to Permit Requirements and Chapter 10 Other Regulatory Considerations Example 3 Scenario:

° The State has a narrative water quality criterion of " no toxics in toxic amounts."

° On the basis of WET testing data or other information, the State finds reasonable potential to exceed the narrative water quality criterion and imposes a WET limitation under 40 CFR 122.44( d)( 1)( v).

° The permittee determines that pollutant Z is the cause of the WET in its discharge.

° The permittee can demonstrate through sufficient data ( including WET testing data) that an effluent limitation for pollutant Z will assure compliance with the narrative water quality standards as well as the State's numeric criteria for pollutant Z as required by 40 CFR 122.44( d)( 1)( v).

° May the State modify the permit to delete the WET limitation and to add the limitation for pollutant Z?

Answer:

§ 303( d)( 4) may justify this action. The applicable provision of § 303( d)( 4) is § 303( d)( 4)( B) because the narrative water quality standards is currently attained. ( The permittee is currently complying with the existing WET limitation to attain and maintain the State's narrative water quality standards.) Under § 303( d)( 4)( B), the permittee may backslide so long as antidegradation requirements will be met, and the relaxed limitation will not cause a violation of any effluent limitations guidelines and water quality standards applicable to the discharge. In this case, this appears likely because the discharger can demonstrate that the new limitation for pollutant Z will assure compliance with applicable narrative as well as numeric water quality standards.

Example 4 Scenario:

° An industrial permittee seeks to revise its WQBEL of 1000 mg/ L for TSS to 6000 mg/ L, its actual discharge level.

° The current permit limitation is based upon a TMDL and WLA for the permittee, which were developed in accordance with 40 CFR 130.7.

° The water quality standards for TSS are not being attained.

° A permit limit of 6000 mg/ L is consistent with applicable effluent guidelines.

° New modeling information shows that the water quality standards for TSS will be attained with a permit limitation of 4000 mg/ L.

° May the permit limitation be revised from 1000 mg/ L to 6000 mg/ L?

Answer:

No. However, the permit limitation could be relaxed to 4000 mg/ L under either § 402( o)( 1) or the § 402( o)( 2) exceptions.

The water quality standards for TSS is not currently being attained. Therefore, under § 402( o)( 1), the applicable exception is § 303( d)( 4)( A). In this case, the permitting authority may allow backsliding to 4000 mg/ L because the existing effluent limitation is based upon a TMDL/ WLA and the data shows that attainment of the water quality standards is assured with a permit limitation of 4000 mg/ L ( but not with a limitation of 6000 mg/ L).

Alternatively, under § 402( o)( 2), new information can be relied on to relax permit limitations where there is a reduction in pollutant loadings and, pursuant to § 402( o)( 3), where water quality standards are complied with. Again, water quality standards are being met in this case, and there also will be a reduction in actual pollutant loadings since the new proposed permit level of 4000 mg/ L will represent a real reduction compared with the actual discharge levels of 6000 mg/ L.

184  NPDES Permit Writers' Manual Variances to Permit Requirements and Other Regulatory Considerations Chapter 10 10.3.2 Considerations for Other Federal Laws This section addresses several Federal laws that impact NPDES permitting. It is noteworthy that the requirements imposed under several of these statutes ( e. g., the NHPA, ESA, FWCA, and NEPA, discussed below), only apply to Federal or federally supported actions ( e. g., EPA issuance of permits). Under these particular statutes,

purely State actions are not regulated. However, many States may have enacted State legislation that is modeled on Federal law and, therefore, it is prudent to review State law in these areas prior to preparing a NPDES permit.

National Historic Preservation Act Amendments of 1992 The National Historic Preservation Act ( NHPA) establishes Federal programs to preserve the historical and cultural foundations of the nation. Regulations under Section 106 of this Act require any Federal agency, in consultation with the Advisory Council on Historic Preservation, to take into account the effect of proposed Federal or Federally assisted undertakings on architectural, archeological, historic, or cultural resources listed, or eligible for listing, on the National Register of Historic Places. This has been interpreted ( see EPA Memorandum dated March 15, 1994, from Steven A.

Herman, Assistant Administrator to Carol Browner, Administrator, entitled " EPA Policy Decision of a Strategy For, and Interim Compliance with the National Historic Preservation Act Amendments") to mean that consultations must be made for direct EPA actions and for individual State actions that EPA funds under its programs.

However, for State actions not directly funded by EPA under EPA authorized programs, consultation would occur on a voluntary basis.

To date, guidance for the permit writer in considering the NHPA requirements is not available. In general, the permit writer must ensure that the proposed discharge to be authorized under the NPDES permit will not have an adverse effect on a site listed,

or eligible for listing, on the National Register of Historic Places. The permit writer may want to require that the permittee show that sufficient research has been conducted to identify whether a site on the Register is located within the area.

Sufficient research should include review of the National Register and information gathering from local governments, Indian tribes, public and private organizations, and the State Historic Preservation Officer ( 36 CFR Part 880). An evaluation of potential effects should be documented. Written documentation of the evaluation should be NPDES Permit Writers' Manual  185 Variances to Permit Requirements and Chapter 10 Other Regulatory Considerations submitted to the State Historic Preservation Office and included in the permit file and fact sheet.

Endangered Species Act of 1973 The goal of the Endangered Species Act ( ESA) of 1973 is to provide protection and support in the conservation and recovery of threatened and endangered species and the ecosystem on which they depend. Section 7 of the ESA requires Federal agencies to ensure that any action authorized, funded, or carried out by a Federal agency not jeopardize the continued existence of a listed or candidate species or result in the destruction or adverse modification of its habitat. Since the issuance of NPDES permits by EPA is a Federal action, consideration of a permitted discharge and its effect on any threatened and/ or endangered species is appropriate. Section 9 of the ESA prohibits the " taking" of any listed endangered and/ or threatened species.

The ESA regulations require that consultation with the National Marine Fisheries Service ( NMFS) and/ or the Fish and Wildlife Service ( FWS), as appropriate, occur when the Federal activity is one which may effect an endangered and/ or threatened species or habitat. Effect is defined as both detrimental and beneficial. Consultations may be either informal or formal. An informal consultation determines if an action is,

or is not, likely to adversely effect the species. A formal consultation is required if the findings show that there is a likelihood for adverse impacts and evaluates if the proposed action is likely to jeopardize the continued existence of the species. It is EPA's responsibility to ensure that consultation occurs, however, a non Federal representative may be designated for the informal consultation ( i. e., the permittee).

To date, EPA has not yet entered into a national agreement with NMFS or FWS on the scope of consultation requirements for NPDES permits. Until then, EPA permit writers should review the ESA consultation regulations ( 50 CFR § 402) and coordinate with the Region's ESA coordinator ( if such a position has been established in a particular Region) and the FWS/ NMFS office( s) located nearest the site. In evaluating the effects of a discharge upon endangered or threatened species, the study should identify the listed and candidate species and their habitats which occur in the area of the discharge. This information can be obtained from discussions with local FWS/

NMFS biologists. The proposed permit limits can then be compared to any existing 186  NPDES Permit Writers' Manual Variances to Permit Requirements and Other Regulatory Considerations Chapter 10 toxicological data and/ or impacts data available for the species. Cumulative,

combined, and independent effects should be evaluated. Additional species specific information can be obtained through discussions with the local wildlife and aquatic biologists who are experts on a particular species ( e. g., EPA, FWS/ NMFS, State Conservation, universities).

It is EPA's position that permits issued under State law are not subject to ESA consultation because they are not Federal Actions. However, State NPDES Programs should have some process in place to consider potential effects on endangered and threatened species and their habitat if they are known to occur in the area of the discharge to ensure those discharges do not result in takes of listed species.

Biological Evaluations ( informal) or Biological Assessments ( formal) should be submitted to the FWS/ NMFS for review and approval. This documentation and any decisions from the FWS/ NMFS would become part of the permit documentation.

Wild and Scenic Rivers Act The 1968 Wild and Scenic Rivers Act protected selected rivers from construction of dams and excessive commercial development. It declared that " the established national policy of dam and other construction at appropriate section of the rivers of the United States needs to be complemented by a policy that would preserve other selected rivers or section thereof in their free flowing condition" [ Section ( 1)( b)].

The Act defines three classes of protected river ( wild river; scenic river; recreational river) and spells out in considerable detail the management restrictions to be established for these rivers. A corridor of land on each side of a protected river is also protected. The corridor is to average no more than 320 acres per linear mile of river through the protected stretch. The rights of landowners within this corridor are maintained, subject to restrictions on the type of development allowed. Rivers are " studied" and may be protected for up to three years during the study period during which a river has the status of a protected river.

NPDES Permit Writers' Manual  187 Variances to Permit Requirements and Chapter 10 Other Regulatory Considerations Coastal Zone Management Act The 1972 Coastal Zone Management Act ( CZMA) and amendments require and encourage the coastal states of the United States to adopt and enforce land use plans for the lands and water adjacent to their coasts. " Coastal states," according to the Act, include those adjacent to the Atlantic, Pacific or Arctic oceans, the Gulf of Mexico,

or one or more of the Great Lakes. These States are required to adopt coastal management plans which designate boundaries, identify areas of particular concern,

and establish an inventory of permitted uses and an enforcement mechanism. Beach access, emergency planning and erosion control also must be addressed in the plans.

EPA and other Federal agencies must coordinate their activities on coastal lands with State CZMA plans.

Fish and Wildlife Coordination Act The Fish and Wildlife Coordination Act ( FWCA) of 1934 requires mitigation for the loss of wildlife habitat due to the construction of Federal water resources projects.

It requires designers of Federal dams, reservoirs, and irrigation works to include the costs and benefits to fish and wildlife when determining the benefit/ cost ratio of a project. It requires EPA and other Federal agencies to consult with State and Federal wildlife and fisheries agencies in order to minimize the impacts of the activity on fish and wildlife. The Act specifically calls for ongoing studies by the United States Department of the Interior on the effects of waterborne sewage and industrial wastes on fish and wildlife.

National Environmental Policy Act The 1967 National Environmental Policy Act established a Federal framework for policy decisions regarding Federal actions that will have a significant effect on the environment. " Federal" actions generally include projects undertaken by the Federal government, as well as non Federal actions eligible for Federal assistance and non

Federal actions that require Federal permits or approvals. Thus, NEPA requirements apply to NPDES permits issued by EPA to new sources in non delegated States. The Act's most important provision is Section 102( 2)( c), requiring Federal agencies such as EPA to file an Environmental Impact Statement ( EIS) on all " proposals for legislation and other major Federal actions significantly affecting the quality of the 188  NPDES Permit Writers' Manual Variances to Permit Requirements and Other Regulatory Considerations Chapter 10 human environment." The definition of what constitutes such actions is an ongoing discussion. The Act establishes a framework for cooperation between the United States government at all levels, and other countries on environmental matters. It also established the Council on Environmental Quality.

NPDES Permit Writers' Manual  189 Chapter 9 Standard Conditions of NPDES Permits This chapter describes standard conditions, sometimes called " boilerplate"

conditions, that consist of pre established conditions that must be incorporated into every permit. The standard conditions set out in 40 CFR § § 122.41 and 122.42 play an important supporting role to the numeric permit limits because these conditions delineate the legal, administrative, and procedural requirements of the permit.

Standard conditions may be inserted verbatim from the regulations or incorporated into the permit by specific reference to the regulations. Standard conditions cover various topics, including definitions, testing procedures, records retention, notification requirements, penalties for noncompliance, and permittee responsibilities.

The use of standard conditions helps ensure uniformity and consistency of all NPDES permits issued by authorized States or EPA Regional offices. The permit writer needs to be aware of the contents of the standard conditions because it may often be necessary to explain portions of these conditions to a permittee. The permit writer should also keep abreast of any changes in EPA's standard conditions set out in 40 CFR § 122.41 as statutes or regulations are revised periodically.

NPDES Permit Writers' Manual  167 Chapter 9 Standard Conditions of NPDES Permits 9.1 Types of Standard Conditions A brief discussion of each of EPA's standard conditions for NPDES permits follows:

° Duty to Comply [ 40 CFR § 122.41( a)]   The permittee must comply with all conditions of the permit. Noncompliance is a violation of the CWA and is grounds for injunctive relief, substantial monetary penalties, incarceration, changes or terminations to the permit, or denial of permit renewal.

° Duty to Reapply [ 40 CFR § 122.41( b)]   If a permittee, after the expiration of its permit, desires to continue its activities, it must reapply for and obtain a new permit.

° Need to Halt or Reduce Activity not a Defense [ 40 CFR § 122.41( c)]   The permittee may not use as a defense the reasoning that compliance could only be achieved by halting or reducing the permitted activity.

° Duty to Mitigate [ 40 CFR § 122.41( d)]   The permittee is required to take all reasonable steps to prevent any discharge or sludge use or disposal in violation of this permit that has a reasonable likelihood of adversely affecting human health or the environment.

° Proper Operation and Maintenance [ 40 CFR § 122.41( e)]   The permittee must properly operate and maintain all equipment and treatment systems used by the permittee for compliance with the terms of the permit. The permittee must provide appropriate laboratory controls and quality assurance procedures. Backup systems are required when needed to ensure compliance. However, each main line unit treatment process must be operated as a minimum.

° Permit Actions [ 40 CFR § 122.41( f)]   The permit may be modified, revoked, reissued, or terminated for cause. The filing of a request by the permittee for a modification, revocation, reissuance, termination, or notification of planned changes or anticipated noncompliance does not halt any permit condition.

° Property Rights [ 40 CFR § 122.41( g)]   The permit does not convey any property rights of any sort, or any exclusive privilege.

° Duty to Provide Information [ 40 CFR § 122.41( h)]   The permittee must transmit any information needed to determine compliance with the permit or to modify the permit.

° Inspection and Entry [ 40 CFR § 122.41( i)]   The permittee must, upon presentation of valid credentials by the Director or his representative, allow entry into the premises where the regulated activity and/ or records are present. The Director must have access to and be able to make copies of any required records, inspect facilities, practices, operations, and equipment, and sample or monitor at reasonable times.

168  NPDES Permit Writers' Manual Standard Conditions of NPDES Permits Chapter 9 ° Monitoring and Records [ 40 CFR § 122.41( j)]   Samples must be representative of the monitored activity. Records must be retained for 3 years ( 5 years for sludge activities) subject to extension by the Director. Monitoring records must identify the sampling dates and personnel, the sample location and time, and the analytical techniques used and corresponding results. Wastewater and sludge measurements must be conducted in accordance with 40 CFR Parts 136 or 503 or other specified procedures. Falsification of results is a violation.

° Signatory and Certification Requirements [ 40 CFR § 122.41( k)]   Applications, reports, or information submitted to the Director must be signed and certified. Knowingly making false statements, representations, or certifications is subject to penalties.

° Planned Changes [ 40 CFR § 122.41( l)( 1)]   Notice must be given to the Director as soon as possible of any planned physical alterations and/ or additions to the facility. This notice is required if the facility changes to meet the criteria for a new source or the nature and concentration of pollutants are affected.

° Anticipated Noncompliance [ 40 CFR § 122.41( l)( 2)]   The permittee must give advance notice of any conditions that may result in noncompliance.

° Permit Transfers [ 40 CFR § 122.41( l)( 3)]   The permit is not transferable except after written notice to the Director. The Director may require modification or revocation and reissuance, as necessary.

° Monitoring Reports [ 40 CFR § 122.41( l)( 4)]   Reports must be submitted on a DMR or on a Director specified form for sludge use/ disposal practices. In addition, more frequent monitoring must be reported. Calculations requiring averaging must use an arithmetic mean, except for fecal coliform. Monitoring results must be reported at the frequency specified in the permit.

° Compliance Schedules [ 40 CFR § 122.41( l)( 5)]   Reports required by a compliance schedule in the permit must be submitted within 14 days of the due date.

° Twenty Four Hour Reporting [ 40 CFR § 122.41( l)( 6)]   The permittee must report any noncompliance that may endanger human health or the environment within 24 hours after becoming aware of the circumstance. Within 5 days, the permittee must provide a written submission containing the information outlined in 40 CFR § 122.41( l)( 6)( ii) unless the requirement is waived by the permitting authority.

° Other Noncompliance [ 40 CFR § 122.41( l)( 7)]   The permittee must report all instances of noncompliance not reported under other specific reporting requirements at the time monitoring reports are submitted.

° Other Information [ 40 CFR § 122.41( l)( 8)]   Where the permittee becomes aware that it failed to submit any relevant facts in its application, or submitted incorrect information in its application or other reports, it must promptly submit such information.

NPDES Permit Writers' Manual  169 Chapter 9 Standard Conditions of NPDES Permits ° Bypass [ 40 CFR § 122.41( m)]   Intentional diversions of untreated waste streams from any portion of a treatment facility are prohibited unless ( 1) the bypass does not cause effluent to exceed limits, and ( 2) the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage, and there was no feasible alternatives, and the proper notification was submitted.

° Upset [ 40 CFR § 122.41( n)]   An upset can be used as an affirmative defense in actions brought to the permittee for noncompliance. The permittee ( who has the burden of proof) must have operational logs or other evidence that shows ( 1) when the upset occurred and its causes, ( 2) that the facility was being operated properly, ( 3) proper notification was made, and ( 4) remedial measures were taken.

9.2 Other Standard Conditions In addition to standard conditions specified in 40 CFR § 122.41, 40 CFR § 122.42 sets forth additional conditions applicable to specified categories of NPDES permits. These conditions include:

° Existing manufacturing, commercial, mining, and silvicultural dischargers must notify EPA as soon as they know or have reason to believe that the discharge has or will exceed notification levels set forth in 40 CFR § 122.42( a).

° POTWs must provide adequate notice to EPA for new introduction of pollutants into the POTW, for substantial changes in the volume or character of pollutants, and related information specified in 40 CFR § 122.42( b).

° Large, medium or EPA designated municipal separate storm sewer systems must submit an annual report addressing the status, and changes to, the storm water management program, water quality data and other information specified in 40 CFR § 122.42( c).

170  NPDES Permit Writers' Manual Chapter 8 Special Conditions Special conditions in NPDES permits are designed to provide an additional measure of control ( beyond numeric effluent limits) for the reduction of discharges of pollutants to waters of the United States. They are not included in the effluent limitations section of a permit because they do not contain specific numeric limits.

The purpose of special conditions is to encourage the permittee to undertake activities designed to reduce the overall quantity of pollutants being discharged, or to reduce the potential for discharges of pollutants.

There are many different reasons to incorporate special conditions into a permit including the following:

° To address unique situations, such as facilities discharging pollutants for which data are absent or limited such that derivation of technology or water quality based effluent limits ( WQBELs) is difficult or impossible ° To incorporate preventative requirements, such as requirements to install process control alarms, containment structures, good housekeeping practices, etc.

° To address foreseeable changes to discharges, such as planned changes to process, products, or raw materials that may affect discharge characteristics ° To incorporate compliance schedules to provide the time necessary to comply with permit conditions NPDES Permit Writers' Manual  137 Chapter 8 Special Conditions ° To incorporate other NPDES Programmatic requirements ( e. g., pretreatment, municipal sewage sludge)

° To impose additional monitoring activities that provide the permit writer data to evaluate the need for changes in permit limitations ° To increase or decrease monitoring requirements, depending on the monitoring results or certain changes in processes or products, etc.

° To impose requirements to conduct special studies such as ambient stream surveys, toxicity reduction evaluations ( TREs), bioaccumulation studies, sediment studies, mixing or mixing zone studies, pollutant reduction evaluations, or other such information gathering studies.

Section 8.1 of this chapter addresses the general types of special conditions for both municipal and non municipal facilities. Special conditions for storm water discharges associated with industrial activity are explained in Section 8.2. Finally,

special conditions unique to POTW/ municipal permits are addressed in Section 8.3.

8.1 General Types of Special Conditions This section discusses several general types of special conditions that could be used in any NPDES permit ( i. e., municipal or non municipal). The special conditions include:

° Special studies/ additional monitoring ° Best Management Practices ( BMPs)

° Pollution prevention ° Compliance schedules.

8.1.1 Special Studies and Additional Monitoring Special studies and additional monitoring requirements imposed beyond those required under the effluent limits section of the permit are useful for collecting data that was not available to the permit writer for consideration during permit development.

Special studies and additional monitoring requirements are generally used to supplement numeric effluent limits or support future permit development activities.

138  NPDES Permit Writers' Manual Special Conditions Chapter 8 Examples of the types of special studies that could be required in a NPDES permit include:

° Treatability studies   Applicable when treatability information is lacking for a pollutant or pollutants that would prohibit a permit writer from developing defensible technology based effluent limits. Treatability studies can also be required when the permit writer suspects that a facility may not be able to comply with an effluent limit.

° Toxicity identification evaluation/ Toxicity reduction evaluation ( TIE/ TRE)   Required for facilities for which wastewater discharges are found to be toxic as a result of a whole effluent toxicity ( WET) test. The purpose of these evaluations is to identify and control the sources of toxicity in an effluent. Further guidance related to EPA recommended TIE/ TRE procedures and requirements can be found in the following guidance manuals:

  Toxicity Reduction Evaluation Protocol for Municipal Wastewater Treatment Plants. 45   Generalized Methodology for Conducting Industrial Toxicity Reduction Evaluations ( TREs). 46   Methods for Aquatic Toxicity Identification Evaluations: Phase I Toxicity Characterization Procedures. Second Edition. 47   Sediment Toxicity Identification Evaluations: Phase I ( Characterization), Phase II ( Identification), Phase III ( Confirmation) Modifications of Effluent Procedures. 48   Toxicity Identification Evaluations: Characterization of Chronically Toxic Effluents, Phase I. 49 45 USEPA ( 1989). Toxicity Reduction Evaluation Protocol for Municipal Wastewater Treatment Plants. EPA 600/ 4 89 001A. Water Engineering Research Laboratory, Cincinnati, Ohio.

46USEPA ( 1989). Generalized Methodology for Conducting Industrial Toxicity Reduction Evaluations ( TREs). EPA 600/ 2 88 070. Water Engineering Research Laboratory, Cincinnati, Ohio.

47USEPA ( 1991). Methods for Aquatic Toxicity Identification Evaluations: Phase I Toxicity Characterization Procedures. Second Edition. EPA 600/ 6 91 003. Environmental Research Laboratory, Duluth, Minnesota.

48USEPA ( 1991). Sediment Toxicity Identification Evaluations: Phase I ( Characterization), Phase II ( Identification), Phase III ( Confirmation) Modifications of Effluent Procedures. EPA 600/ 6 91 007. Environmental Research Laboratory, Duluth, Minnesota.

49USEPA ( 1992). Toxicity Identification Evaluations: Characterization of Chronically Toxic Effluents, Phase I. EPA 600/ 6 91 005F. Environmental Research Laboratory, Duluth, Minnesota.

NPDES Permit Writers' Manual  139 Chapter 8 Special Conditions   Methods for Aquatic Toxicity Identification Evaluations: Phase II Toxicity Identification Procedures for Samples Exhibiting Acute and Chronic Toxicity. 50   Methods for Aquatic Toxicity Identification Evaluations: Phase III Confirmation Procedures for Samples Exhibiting Acute and Chronic Toxicity. 51 ° Mixing or mixing zone studies   Used to assist in determining the allowable ambient mixing that can be applied when developing WQBELs.

° Sediment monitoring   Used if a permit writer suspects that pollutants contained in wastewater discharges accumulate in the sediments of the receiving water.

° Bioconcentration studies   These biological monitoring studies are used to determine whether pollutants contained in wastewater discharges bioaccumulate in aquatic organisms ( e. g., fish, invertebrates). These types of studies are usually recommended when WQBELs for pollutants that bioaccumulate are established below analytical detection levels. Additional guidance related to evaluating the bioaccumulation potential of a pollutant can be found in the EPA Great Lakes Water Quality Initiative Technical Support Document for the Procedure to Determine Bioaccumulation Factors. 52 When establishing special conditions, permit writers must ensure that any particular requirements related to the study ( e. g., special sampling or analytical procedures) are specified in the permit condition. In addition, permit writers must establish a reasonable schedule for completion and submission of the study or monitoring program. If the anticipated schedule is longer than 6 months to 1 year,

then it is recommended that the permit writer require that the facility provide an interim progress report.

50USEPA ( 1993). Methods for Aquatic Toxicity Identification Evaluations: Phase II Toxicity Identification Procedures for Samples Exhibiting Acute and Chronic Toxicity. EPA 600/ R 92 080. Environmental Research Laboratory, Duluth, Minnesota.

51USEPA ( 1993). Methods for Aquatic Toxicity Identification Evaluations: Phase III Confirmation Procedures for Samples Exhibiting Acute and Chronic Toxicity. EPA 600/ R 92 081. Environmental Research Laboratory, Duluth, Minnesota.

52USEPA ( 1995). Great Lakes Water Quality Initiative Technical Support Document for the Procedure to Determine Bioaccumulation Factors. EPA 820/ B 95 005. Office of Science and Technology.

140  NPDES Permit Writers' Manual Special Conditions Chapter 8 8.1.2 Best Management Practices ( BMPs)

In general, BMPs are measures to prevent or mitigate water pollution from sources ancillary to the industrial manufacturing or treatment process. The NPDES regulations, at 40 CFR § 122.2, define the term " best management practices" and provide the following measures as examples of BMPs:

° Schedules of activities ° Prohibitions of practices ° Maintenance procedures ° Treatment requirements ° Operating procedures and practices to control   Plant site runoff   Spillage or leaks   Sludge or waste disposal   Drainage from raw material storage areas.

The NPDES regulations at 40 CFR § 122.44( k) acknowledge that BMPs shall be included as permit conditions ( when applicable) where they are authorized under Section 304( e) of the CWA; when numeric effluent limitations are infeasible; or when they are necessary to achieve limitations or carry out the purpose and intent of the CWA. Examples of when numeric effluent limitations are infeasible include:

° Regulating a pollutant for which limited treatability or aquatic impact information are available to allow development of technology based or water quality based effluent limits ° Regulating releases when the types of pollutants vary greatly over time.

Other circumstances when BMPs should be imposed as permit conditions include:

° When chemical analyses are inappropriate or impossible ° When a history of leaks and spills exist or when housekeeping is sloppy ° When a complex facility lacks toxic pollutant data ° When other discharge control options are prohibitively expensive.

Permit writers may include BMPs in permits in two basic ways: require the development of a general BMP plan, and/ or require site, process, or pollutant

NPDES Permit Writers' Manual  141 Chapter 8 Special Conditions specific BMPs. How BMPs are included as a permit condition, depends on the type of permit being developed. In the case of an individual permit, where a permit writer is developing permit conditions for a particular facility and has the opportunity to review the circumstances of the facility, the development of site or pollutant specific BMPs may be appropriate. On the other hand, including site or pollutant specific BMPs as conditions in a general permit may not be appropriate since they are highly dependent on the circumstances of individual facilities. As a result, discharges covered under a general permit may be required to develop a general BMP plan that allows the permittee to determine appropriate BMPs based on the circumstances of their particular facility.

The Guidance Manual for Developing Best Management Practices ( BMPs) 53 describes the activities and materials at an industrial or municipal facility which are best addressed by BMP plans. The manual also describes how BMPs work and gives examples of the types of BMPs that can be used.

If a permit writer uses a general permit requirement for a BMP plan, it is the responsibility of the facility to plan, develop and implement, and reevaluate the success/ shortfalls of its own plan. Usually, a BMP committee ( group of individuals within the plant organization) is responsible for developing the BMP plan and assisting the plant management in implementing and updating the BMP plan. However, plant management, not the committee, has overall responsibility and accountability for the quality of the BMP plan.

EPA has identified several recommended components for effective BMP plans.

The minimum suggested components of a general BMP plan are presented below:

° General Requirements   Name and location of facility   Statement of BMP policy and objective   Review by plant manager ° Specific Requirements   BMP committee 53USEPA ( 1993). Guidance Manual for Developing Best Management Practices ( BMPs). EPA 833 B 93 004. Office of Water.

142  NPDES Permit Writers' Manual Special Conditions Chapter 8   Risk identification and assessment   Reporting of BMP incidents   Materials compatibility   Good housekeeping   Preventive maintenance   Inspections and records   Security   Employee training.

Each of these components are discussed in more detail in the Guidance Manual for Developing Best Management Practices ( BMPs). 54 Site, process, and pollutant specific BMPs are designed to address conditions particular to a site, process, or pollutant. The need for specific BMPs at a facility often will be discovered in conjunction with other permit related activities, such as compliance inspections. Poor housekeeping or a history of spills, for example,

indicate a need for specific BMPs to supplement the quantitative effluent limits for specific pollutants in the permit.

To select a specific BMP, the permit writer must:

° Review the industry profiles to determine the industrial processes that apply ° Evaluate whether the BMP would help to achieve the environmental objectives of the industry ° Use industry or municipal specific examples from other permits, pollution prevention sources, existing permits for similar processes, or EPA guidance documents.

BMP plans can be submitted for review by the regulatory agency but are usually kept onsite and made available to the permitting authority upon request. The normal compliance schedule is to require preparation of the BMP plan within 6 months, and implementation of the plan within 12 months of permit issuance.

Specific BMPs have been developed for storm water discharges and combined sewer overflows ( CSOs) and are discussed in Sections 8.2 and 8.3, respectively.

54USEPA ( 1993). Guidance Manual for Developing Best Management Practices ( BMPs). EPA 833 B 93 004. Office of Water.

NPDES Permit Writers' Manual  143 Chapter 8 Special Conditions Example:

The following is example language for requiring development and implementation of a BMP Plan in an NPDES permit. The language should be crafted and changed as necessary to meet the individual facility's needs and State/ EPA goals for the facility. The text which is ** redlined** ( i. e., text between asterisks) needs special permit specific consideration.

1. Implementation.

If a BMP Plan does not exist:

The permittee, shall develop and implement a Best Management Practices ( BMP) Plan which achieves the objectives and the specific requirements listed below. A copy of the Plan shall be submitted to EPA ** and/ or State agency.** The Plan shall be implemented as soon as possible but no later than twelve months from the effective date of the permit.

If a BMP Plan already exists:

The permittee shall during the term of this permit operate the facility in accordance with the BMP Plan **( cite existing Plan)** or in accordance with subsequent amendments to the Plan. The permittee shall also amend this Plan, to incorporate practices to achieve the objectives and specific requirements listed below, and a copy shall be submitted to EPA ** and/ or State agency** The amended Plan shall be implemented as soon as possible but not later than six months from the effective date of the permit.

2. Purpose. Through implementation of the BMP Plan the permittee shall prevent or minimize the generation and the potential for the release of pollutants from the facility to the waters of the United States through normal operations and ancillary activities.

3. Objectives. The permittee shall develop and amend the BMP Plan consistent with the following objectives for the control of pollutants.

a. The number and quantity of pollutants and the toxicity of effluent generated, discharged or potentially discharged at the facility shall be minimized by the permittee to the extent feasible by managing each influent waste stream in the most appropriate manner.

b. Under the BMP Plan, and any Standard Operating Procedures ( SOPs) included in the Plan, the permittee shall ensure proper operation and maintenance of the treatment facility.

c. The permittee shall establish specific objectives for the control of pollutants by conducting the following evaluations.

( 1) Each facility component or system shall be examined for its waste minimization opportunities and its potential for causing a release of significant amounts of pollutants to waters of the United States due to equipment failure, improper operation, and natural phenomena such as rain or snowfall, etc. The examination shall include all normal operations and ancillary activities including material storage areas, plant site runoff, in plant transfer, process and material handling areas, loading or unloading operations, spillage or leaks, sludge and waste disposal, or drainage from raw material storage. ** note that only the area from the previous list which apply to a facility should be included**

( 2) Where experience indicates a reasonable potential for equipment failure ( e. g., a tank overflow or leakage), natural condition ( e. g., precipitation), or other circumstances to result in significant amounts of pollutants reaching surface waters, the program should include a prediction of the direction, rate of flow and total quantity of pollutants which could be discharged from the facility as a result of each condition or circumstance.

144  NPDES Permit Writers' Manual Special Conditions Chapter 8 Example ( continued):

4. Requirements. The BMP Plan shall be consistent with the objectives in Part 3 above and the general guidance contained in the publication entitled Guidance Manual for Developing Best Management Practices ( BMPs)( USEPA, 1993) or any subsequent revisions to the guidance document. The BMP Plan shall:

a. Be documented in narrative form, shall include any necessary plot plans, drawings or maps, and shall be developed in accordance with good engineering practices. The BMP Plan shall be organized and written with the following structure:

( 1) Name and location of the facility.

( 2) Statement of BMP policy.

( 3) Structure, functions, and procedures of the BMP Committee.

( 4) Specific management practices and standard operating procedures to achieve the above objectives, including, but not limited to, the following:

( a) modification of equipment, facilities, technology, processes, and procedures, ( b) reformulation or redesign of products, ( c) substitution of materials, and ( d) improvement in management, inventory control, materials handling or general operational phases of the facility.

( 5) Risk identification and assessment.

( 6) Reporting of BMP incidents.

( 7) Materials compatibility.

( 8) Good housekeeping.

( 9) Preventative maintenance.

( 10) Inspections and records.

( 11) Security.

( 12) Employee training.

b. Include the following provisions concerning BMP Plan review:

( 1) Be reviewed by plant engineering staff and the plant manager.

( 2) Be reviewed and endorsed by the permittee's BMP Committee.

( 3) Include a statement that the above reviews have been completed and that the BMP Plan fulfills the requirements set forth in this permit. The statement shall be certified by the dated signatures of each BMP Committee member.

c. Establish specific best management practices to meet the objectives identified in Part 3 of this section, addressing each component or system capable of generating or causing a release of significant amounts of pollutants, and identifying specific preventative or remedial measures to be implemented.

NPDES Permit Writers' Manual  145 Chapter 8 Special Conditions 8.1.3 Pollution Prevention Example ( continued):

d. Establish specific best management practices or other measures which ensure that the following specific requirements are met:

( 1) Ensure proper management of solid and hazardous waste in accordance with regulations promulgated under the Resource Conservation and Recovery Act ( RCRA). Management practices required under RCRA regulations shall be referenced in the BMP Plan.

( 2) Reflect requirements for Spill Prevention, Control, and Countermeasure ( SPCC) plans under Section 311 of the Act and 40 CFR Part 112 and may incorporate any part of such plans into the BMP Plan by reference.

( 3) Reflect requirements for storm water control under Section 402( p) of the Act and the regulations at 40 CFR 122.26 and 122.44, and otherwise eliminate to the extent practicable, contamination of storm water runoff.

( 4), etc.

** Section 4. d. needs to be tailored to each facility by the permit writer. Processes or areas of the facility with housekeeping problems, noncompliance, spills/ leaks, or other problems which could be remedied through a BMP should be addressed here. If a solution to the problem is known ( e. g., more frequent inspections, preventive maintenance, etc.) this remedy should also be included as a part of the BMP Plan requirements. To gather ideas for such requirements, the permit writer may want to contact the permittee, compliance personnel, facility inspectors, operations office personnel, State agency counterparts. The permit writer may also want to check requirements in other permits and BMP Plans for similar facilities.**

5. Documentation. The permittee shall maintain a copy of the BMP Plan at the facility and shall make the plan available to EPA ** and/ or State agency** upon request. All offices of the permittee which are required to maintain a copy of the NPDES permit shall also maintain a copy of the BMP Plan.

6. BMP Plan Modification. The permittee shall amend the BMP Plan whenever there is a change in the facility or in the operation of the facility which materially increases the generation of pollutants or their release or potential release to the receiving waters. The permittee shall also amend the Plan, as appropriate, when plant operations covered by the BMP Plan change. Any such changes to the BMP Plan shall be consistent with the objectives and specific requirements listed above. All changes in the BMP Plan shall be reported to EPA ** and/ or State agency** in writing.

7. Modification for Ineffectiveness. At any time, if the BMP Plan proves to be ineffective in achieving the general objective of preventing and minimizing the generation of pollutants and their release and potential release to the receiving waters and/ or the specific requirements above, the permit and/ or the BMP Plan shall be subject to modification to incorporate revised BMP requirements.

Pollution prevention has been shown to reduce costs as well as pollution risks through source reduction and recycling/ reuse techniques. Under Section 6602( b) of the Pollution Prevention Act of 1990, Congress established a national policy for a hierarchy of environmental management:

° Pollution should be prevented or reduced at the source, whenever feasible.

° Pollution that cannot be prevented should be recycled in an environmentally safe manner, whenever feasible.

146  NPDES Permit Writers' Manual Special Conditions Chapter 8 ° Pollution that cannot be prevented or recycled should be treated in an environmentally safe manner, whenever feasible.

° Disposal or other release into the environment should be employed only as a last resort and should be conducted in an environmentally safe manner.

The Pollution Prevention Act emphasizes that pollution prevention means source reduction and defines source reduction as any practice that:

° Reduces the amount of any hazardous substance, pollutant, or contaminant entering any waste stream or otherwise released into the environment ( including fugitive emissions) prior to recycling, treatment, or disposal ° Reduces the threats to public health and the environment associated with the release of hazardous substances, pollutants, or contaminants ° Increases the efficiency of using raw materials, energy, water, or other resources, or protects natural resources by conservation.

The environmental management hierarchy   prevention, recycling, treatment,

and disposal   should be viewed as establishing a set of preferences, rather than an absolute judgment that prevention is always the most desirable option. The hierarchy is applied to many different circumstances that require good judgment. Prevention includes what is commonly called in process recycling. Recycling conducted in an environmentally sound manner shares many of the advantages of prevention ( e. g.,

energy and resource conservation and reduction of the need for end of pipe treatment or waste containment).

Within the NPDES Program, BMPs are inherently pollution prevention practices.

Traditionally, BMPs have focused on good housekeeping measures and good management techniques that attempt to avoid contact between pollutants and water media as a result of leaks, spills, and improper waste disposal. However, based on the authority granted under the regulations, BMPs may include the universe of pollution prevention, which encompasses production modifications, operational changes, materials substitution, materials and water conservation, and other such measures.

NPDES Permit Writers' Manual  147 Chapter 8 Special Conditions 8.1.4 Compliance Schedules The NPDES regulations at 40 CFR § 122.47 allow permit writers to include schedules of compliance to allow permittees additional time to achieve compliance with the CWA and applicable regulations. Schedules developed under this provision must require compliance by the permittee as soon as possible, but may not extend the date for final compliance beyond compliance dates established by the Act. Examples of situations where compliance schedules may be appropriate include:

° Pretreatment program development ° Sludge use and disposal program development and/ or implementation ° New/ revised effluent guidelines application ° New/ revised water quality standards application ° BMP plan development and/ or implementation ° Storm water, CSO and/ or SSO control program development and/ or implementation.

While compliance schedules may be appropriate for implementation of certain NPDES Program requirements, they are not appropriate for requirements where statutory deadlines have passed. In particular, compliance schedules are not appropriate under the following scenarios:

1. Compliance with Technology Based Effluent Limits Compliance schedules are not allowed at this time because statutory deadlines have passed for BPT, BAT, and BCT levels of treatment.

° July 1, 1977 for BPT ° March 31, 1989 for BAT and BCT.

This applies to both existing and new dischargers. It should be noted, however, that 40 CFR § 122.29( d)( 4) allows a new source or new discharger up to 90 days to " start up" its pollution control equipment and achieve compliance with its permit conditions ( i. e., provides for up to a 90 day period to achieve compliance).

2. Compliance with Water Quality Based Effluent Limits The determination of whether a compliance schedule to meet water qualitybased permit limits is permissible depends on when the applicable State water 148  NPDES Permit Writers' Manual Special Conditions Chapter 8 quality standards were initially promulgated. Because States were required to have water quality standards promulgated by July 1, 1977, and because facilities were supposed to have had the opportunity to comply with the standards, compliance schedules are not allowed if the State water quality standards were promulgated before July 1, 1977.

If a State promulgates a water quality standards after July 1, 1977, and if the State water quality regulations allow for a compliance schedule to comply with the standards, then a compliance schedule could be granted in accordance with 40 CFR 47.

If a State promulgates a water quality standards after July 1, 1977, and the State water quality regulations do not allow for a compliance schedule to comply with the standards, then a compliance schedule may not be granted.

[ See: Star Kist Caribe, Inc., NPDES Appeal No. 88 5]

In situations where the permittee will be unable to meet permit conditions, and where a compliance schedule pursuant to 40 CFR § 122.47 is not permitted, the practical alternative is to initiate an Administrative Order under Section 309 of the CWA ( containing a schedule of compliance) concurrent with permit issuance.

8.2 Permit Conditions Addressing Storm Water Discharges Associated With Industrial Activities As previously discussed in Chapter 2, all storm water discharges associated with industrial activity that discharge storm water through a separate municipal storm sewer system ( MS4) or discharge directly to waters of the United States are required to obtain NPDES permit coverage. Following the promulgation of the November 16,

1990, storm water application regulations, EPA and NPDES authorized States were faced with providing permit coverage for storm water discharges from over 100,000 industrial facilities. Due to the nature of the discharge ( i. e., storm water) and the large number of facilities requiring permit coverage, EPA and most NPDES authorized States chose to use general permits as a mechanism to provide permit coverage for facilities requiring permit coverage for their storm water discharges.

Unlike discharges of process wastewater where numerical effluent limitations ( technology based and/ or water quality based) are typically used to control the discharge of pollutants from industrial facilities, the primary permit condition used to NPDES Permit Writers' Manual  149 Chapter 8 Special Conditions address discharges of pollutants in a facilities storm water is a pollution prevention plan. The development and implementation of a site specific storm water pollution prevention plan is considered to be the most important requirement of the EPA and State issued storm water general permits. Site specific storm water pollution prevention plans allow permittees to develop and implement " best management practices", whether structural or non structural, that are best suited for controlling storm water discharges from their industrial facility.

Each industrial facility covered under an EPA issued storm water general permit must develop a pollution prevention plan, tailored to the site specific conditions, and designed with the goal to control the amount of pollutants in storm water discharges from the site. The special conditions component of EPA's storm water general permits identify the requirements that each facility must include in their storm water pollution prevention plan, including:

° A description of potential pollutant sources at the facility, including:

  A map of the facility indicating the drainage areas of the site and the industrial activities which occur in each drainage area   An inventory of materials that may be exposed to storm water   A description of the likely sources of pollutants from the site and a prediction of the pollutants which are likely to be present in the storm water   The history of spills and leaks of toxic and hazardous materials over the last three years ° The measures and controls that will be implemented to prevent or minimize pollution of storm water, including:

  Good housekeeping or upkeep of industrial areas exposed to storm water   Preventative maintenance of storm water controls and other facility equipment   Spill prevention and response procedures   Testing of outfalls to ensure that there are no illicit discharges   Employee training on pollution prevention measure and controls, and record keeping.

A permit writer's best source of information for developing appropriate special conditions for storm water controls are perhaps other storm water general permits.

Using existing general permits as the basis for special conditions is encouraged since 150  NPDES Permit Writers' Manual Special Conditions Chapter 8 this will reduce duplication of efforts. A listing of all general permits ( storm water and non storm water) issued by EPA as well as authorized States, which can be used as a permit writing resource, can be found in the EPA Point Source Information Provision Exchange System ( PIPES) accessible through EPA's World Wide Web home page [ http:/ www. epa. gov]. In addition, EPA has developed the following guidance documents to help permit writers identify components of storm water pollution prevention plans as well as to assist permittees in developing plans:

° Storm Water Management for Industrial Activities: Developing Pollution Prevention Plans and Best Management Practices. 55 ° Storm Water Management for Construction Activities: Developing Pollution Prevention Plans and Best Management Practices. 56 8.3 Special Conditions for Municipal Facilities This section explains several common special conditions that are applicable only to municipal facilities. These conditions reflect requirements for POTWs to implement and enforce local pretreatment programs for their industrial users; sludge disposal requirements; CSO requirements; SSO requirements; and MS4 requirements.

8.3.1 The National Pretreatment Program Section 402( b)( 8) of the CWA requires that POTWs receiving pollutants from significant industrial sources subject to section 307( b) standards establish a POTW pretreatment program to ensure compliance with these standards. The implementing regulations at 40 CFR 403.8( a) state, " any POTW ( or combination of POTWs operated by the same authority) with a total design flow greater than 5 million gallons per day ( mgd) and receiving from industrial users pollutants which pass through or interfere with the operation of the POTW or are otherwise subject to pretreatment standards will be required to establish a POTW pretreatment program unless the NPDES State exercises its option to assume local responsibilities as provided in 403.10( e)." EPA or a NPDES State with an approved pretreatment program may require POTWs with 55USEPA ( 1992). Storm Water Management for Industrial Activities: Developing Pollution Prevention Plans and Best Management Practices. EPA 832 R 92 006. Office of Water.

56USEPA ( 1992). Storm Water Management for Construction Activities: Developing Pollution Prevention Plans and Best Management Practices. EPA 832 R 92 005.

NPDES Permit Writers' Manual  151 Chapter 8 Special Conditions design flows of 5 mgd or less to develop a POTW pretreatment program if circumstances warrant ( 40 CFR 403.8( a)). The requirement to develop a pretreatment program only applies to POTWs or States using the option under 403.10( e), this is primarily due to the fact that the pretreatment regulations at 40 CFR 403 only apply to POTWs and industrial users of POTWs, and the State or EPA offices that issue permits to the POTWs.

Since 1978, approximately 1,500 POTWs have been required to develop and implement pretreatment programs as special conditions of NPDES permits. The pretreatment program was developed to control industrial discharges to POTWs and to meet three objectives at the POTWs: ( 1) to prevent pass through, ( 2) to prevent interference, including interference with its use or disposal of municipal sludge, ( 3) to improve opportunities to recycle and reclaim municipal and industrial wastewater and sludges.

As authorized by the pretreatment regulations at 40 CFR 403.8( c),( d) and ( e)

and the NPDES regulations at 40 CFR 122.44( j)( 2), the requirements to develop and implement a POTW pretreatment program are placed as enforceable conditions in the POTW's NPDES permit.

Pretreatment Program development and Program Implementation are done as two separate steps. Through the NPDES permit the POTW is required to develop a Pretreatment Program. The POTW is required to submit an approvable program that meets the requirements in 40 CFR 403.9( b), specifically, these requirements are the provisions of a program as laid out in 40 CFR 403.8( f). 40 CFR 403.8( f) requires the POTW to have certain legal authority ( usually a municipal ordinance or set of regulations) and procedures to fully and effectively exercise and implement the legal authority and procedures. The POTW must submit a program detailing the legal authority to:

1. Deny or condition new or increased contributions of pollutants, or changes in nature of pollutants, to the POTW by industrial users;

2. Require compliance with applicable pretreatment standards and requirements by industrial users;

152  NPDES Permit Writers' Manual Special Conditions Chapter 8 3. Control through permit, order, or similar means the contribution to the POTW by each industrial user to ensure compliance with applicable pretreatment standards and requirements. These control mechanisms must have certain conditions as laid out in 403.8( f)( 1)( iii) and be enforceable;

4. Require the development of compliance schedules where necessary by each industrial user for the installation of technology required to meet applicable pretreatment standards and requirements, and submission of all notices and self monitoring reports to assess and ensure compliance;

5. Carry out all inspection, surveillance, and monitoring procedures necessary to determine compliance with applicable pretreatment standards and requirements independent of information submitted by the industrial user ( this will include authority to enter the premises of the industrial user);

6. Obtain remedies for noncompliance ( e. g., injunctive relief, penalties);

7. Comply with confidentiality requirements.

Further at a minimum, the POTW must have procedures to:

1. Identify and locate all possible industrial users which might be subject to the POTW pretreatment program;

2. Identify the character and volume of pollutants contributed to the POTW by the industrial users;

3. Notify industrial users of applicable pretreatment standards and applicable requirements under section 204( b) and 405 of the Clean Water Act and subtitles C and D of RCRA;

4. Receive and analyze self monitoring reports;

5. Conduct sampling, inspections and other surveillance activities to determine compliance with applicable pretreatment standards and requirements independent of information supplied by the industrial user;

6. Investigate instances of noncompliance; and 7. Comply with public participation, including public notice annually of industrial users determined to be in significant noncompliance during the previous 12 month period.

NPDES Permit Writers' Manual  153 Chapter 8 Special Conditions Also, as part of the POTW pretreatment program, POTWs must have adequate resources and funding to implement the program, evaluate the need for local limits and develop them if the need exists, and develop an enforcement response plan.

The permit requires the POTW to submit the program documentation which details the authority and procedures to be implemented along with other information about the program as laid out in 40 CFR 403.9. The permit will allow the POTW up to one year from the time the permitting authority determines the need for a pretreatment program exists to develop and submit a program for approval. Once the permitting authority reviews and approves the program, the program is then incorporated into the permit in order to make the requirement to implement the program an enforceable part of the permit.

The incorporation of the requirement to develop a pretreatment is generally done at the time of reissuance of the permit. However, the requirement may also be incorporated through a modification of the permit if cause exists. Cause exists if "...

the addition of pollutants into POTW by an industrial user or combination of industrial users presents a substantial hazard to the functioning of the treatment works, quality of the receiving waters, human health, or the environment," ( 40 CFR 403.8( e)( 1)).

A permit modification to require the development of a pretreatment program is considered a major modification and must follow the procedures in 40 CFR 122.62.

The incorporation of an approved program into the permit, thereby making the implementation of the program an enforceable part of the permit, is considered a minor modification to the permit and must follow the procedures in 40 CFR 122.63( g).

During the life of the permit it may be necessary for the POTW to modify its approved pretreatment program ( changes to local limits, changes to the ordinance, etc.). These changes may be brought about by the POTW's desire to change the way the program operates, or they may be the result of changes that are necessary to address deficiencies in the program found during inspections or audits done by the permitting authority. Whatever the reason for the modification, these modifications to the approved program require review and approval by the permitting authority ( Approval Authority) when the modifications are considered substantial, per 40 CFR 403.18. All approved substantial program modifications to the POTW's approved pretreatment program require minor modifications to the permit.

154  NPDES Permit Writers' Manual Special Conditions Chapter 8 Most of the POTWs who need pretreatment program requirements in their Regulatory Update As of December 1996, there are two proposed regulations that may impact the permitting requirements for POTWs with pretreatment programs. First is the regulation that defines a substantial pretreatment program modification. EPA is reconsidering the definition of what is a substantial modification. EPA has proposed to shorten the list and thereby reduce the need for minor permit modifications. Second, EPA has proposed a new regulation for POTWs to apply for NPDES permits. The current regulations require POTWs to submit an evaluation of the need for local limits with their NPDES permit application. The proposed regulation would require the evaluation to be submitted after the permit has been reissued. Therefore the permit will need to have language included that implements this requirement.

permits currently have them in place. EPA Regions and approved States have developed standard pretreatment development or implementation conditions ( with minor modifications made to tailor the conditions to the specific permittee) that are placed in all pretreatment POTW NPDES permits in that Region or State. The permit writer can obtain examples of these NPDES pretreatment conditions from the EPA or State pretreatment coordinators. The permit writer may need to update or modify pretreatment implementation language or initiate corrective action related to the pretreatment program.

A NPDES State or an EPA Region will often designate a pretreatment coordinator to serve as the pretreatment expert to review the annual report from the POTW and recommend any action to be taken. The State or EPA Regional pretreatment coordinator is a key resource on pretreatment issues, particularly at the time of NPDES permit reissuance. EPA has prepared a number of guidance manuals for POTWs on how to implement their local pretreatment programs.

Pretreatment program information and monitoring data obtained through the POTW's pretreatment program may be useful to the permit writer in identifying possible modifications to the pretreatment program's local limits or procedures, or the need for water quality based controls. Although there is currently no requirement for chemical specific toxics effluent monitoring to be submitted with the permit application,

most pretreatment POTWs have performed toxics monitoring of their influent, effluent,

and sludge. The permit writer should obtain such data with the aid of the pretreatment coordinator. These data can be used to determine the need for water quality based limits.

NPDES Permit Writers' Manual  155 Chapter 8 Special Conditions 8.3.2 Municipal Sewage Sludge Section 405( d) of the CWA requires that EPA regulate the use and disposal of sewage sludge to protect public health and the environment from any reasonably anticipated adverse effects of these practices. In the CWA, Congress directs EPA to develop technical standards for municipal sludge use and disposal options. These standards are set out in 40 CFR Part 503. Congress also enacted strict deadlines for compliance with these standards. Within 1 year of promulgation of the standards,

compliance was required unless construction of new pollution control facilities was necessary, in which case compliance was required within 2 years.

EPA promulgated the 40 CFR Part 503 Standards for the Use or Disposal of Sewage Sludge on February 19, 1993 ( 58 FR 9248) with amendments on February 19, 1994 ( 59 FR 9095) and October 25, 1995 ( 60 FR 54764). These regulations address four sludge use and disposal practices: land application, surface disposal,

incineration, and disposal in a municipal solid waste landfill. The standards for each end use and disposal method consist of general requirements, numeric pollutant limits, operational standards, and management practices, as well as monitoring,

recordkeeping, and reporting requirements. Unlike technology standards based on the ability of treatment technologies to reduce the level of pollutants, EPA's sewage sludge standards are based on health and environmental risks.

40 CFR Part 503 imposes requirements on four groups:

° Persons who prepare sewage sludge or material derived from sewage sludge ° Land appliers of sewage sludge ° Owners/ operators of sewage sludge surface disposal sites ° Owners/ operators of sewage sludge incinerators.

The regulation is largely self implementing. This means that anyone engaged in activities covered by the regulation must comply with the appropriate requirements on or before the compliance deadlines. A person who violates 40 CFR Part 503 requirements is subject to administrative, civil, and/ or criminal enforcement actions.

156  NPDES Permit Writers' Manual Special Conditions Chapter 8 Section 405( f) of the CWA requires the inclusion of sewage sludge use or disposal requirements in any NPDES permit issued to a Treatment Works Treating Domestic Sewage ( TWTDS) and authorizes the issuance of sewage sludge permits to non discharging TWTDS. To provide a mechanism for this inclusion, EPA promulgated revisions to the NPDES permit regulations at 40 CFR Parts 122 and 124 on May 2, 1989 ( 54 FR 18716). These revisions expanded EPA's authority to include sewage sludge use and disposal standards in NPDES permits and to issue NPDES permits to treatment works that do not have an effluent discharge to waters of the United States, but are involved in sewage sludge use or disposal as preparers,

appliers, or owners/ operators. TWTDS includes all sewage sludge generators and facilities that change the quality of sewage sludge such as blenders.

EPA recognizes that implementation of 40 CFR Part 503 requirements is a source of confusion for permit writers and permittees who may already have NPDES permits with sewage sludge special conditions. The end result is that both NPDES sludge permit conditions and 40 CFR Part 503 requirements apply. EPA expects that over time, all NPDES sludge requirements will be revised to include the 40 CFR Part 503 requirements. To reduce confusion, EPA has provided several guidance documents to explain the requirements of 40 CFR Part 503.

° Part 503 Implementation Guidance. 57 ° Land Application of Sewage Sludge   A Guide for Land Appliers on the Recordkeeping and Reporting Requirements of the Federal Standards for the Use and Disposal of Sewage Sludge Management in 40 CFR Part 503.58 ° Surface Disposal of Sewage Sludge   A Guide for Owners/ Operators of Surface Disposal Facilities on the Monitoring, Recordkeeping, and Reporting Requirements of the Federal Standards for the Use and Disposal of Sewage Sludge in 40 CFR Part 503.59 57USEPA ( 1995). Part 503 Implementation Guidance. EPA 833 R 95 001. Office of Water.

58USEPA ( 1994). Land Application of Sewage Sludge   A Guide for Land Appliers on the Recordkeeping and Reporting Requirements of the Federal Standards for the Use and Disposal of Sewage Sludge Management in 40 CFR Part 503. EPA 831/ B 93 002c. Office of Water.

59USEPA ( 1994). Surface Disposal of Sewage Sludge   A Guide for Owner/ Operators of Surface Disposal Facilities on the Monitoring, Record Keeping, and Reporting Requirements of the Federal Standards for the Use and Disposal of Sewage Sludge in 40 CFR Part 503. EPA 831/ B 93 002b. Office of Water.

NPDES Permit Writers' Manual  157 Chapter 8 Special Conditions ° Preparing Sewage Sludge for Land Application or Surface Disposal   A Guide for Preparers of Sewage Sludge on the Monitoring, Record Keeping, and Reporting Requirements of the Federal Standards for the Use or Disposal of Sewage Sludge in 40 CFR Part 503.60 ° Domestic Septage Regulatory Guidance, A Guide to the EPA 503 Rule. 61 ° Control of Pathogens and Vector Attraction in Sewage Sludge. 62 The permit writer should refer to the Part 503 Implementation Guidance63 and EPA Region and State guidelines or policies for instructions on how to implement the applicable 40 CFR Part 503 standards into the permit. The permit writer will need to determine the type of sludge use or disposal practice( s) used by the permittee and apply the appropriate 40 CFR Part 503 standards. In general, conditions will need to be established to address:

° Pollutant concentrations or loading rates ° Operational standards ( such as pathogen and vector attraction reduction requirements for land application and surface disposal and total hydrocarbons ( THC) concentrations for incinerators)

° Management practices ( e. g., siting restrictions, design requirements, operating practices)

° Monitoring requirements ( e. g., pollutants to be monitored, sampling locations, frequency, and sample collection and analytical methods)

° Recordkeeping requirements ° Reporting requirements ( e. g., contents of reports and frequency or due dates for submission of reports)

° General requirements ( e. g., specific notification requirements prior to land application, submission of closure and post closure plan for surface disposal sites).

60USEPA ( 1993). Preparing Sewage Sludge for Land Application or Surface Disposal   A Guide for Preparers of Sewage Sludge on the Monitoring, Recordkeeping, and Reporting Requirements of the Federal Standards for the Use or Disposal of Sewage Sludge in 40 CFR Part 503. EPA 831/ B 93 002a. Office of Water.

61USEPA ( 1993). Domestic Septage Regulatory Guidance   A Guide to the EPA 503 Rule. EPA 832/ B 92 005. Office of Water.

62USEPA ( 1992). Control of Pathogens and Vector Attraction in Sewage Sludge. EPA 625/ R 92 013. Office of Research and Development.

63USEPA ( 1995). Part 503 Implementation Guidance. EPA 833 R 95 001. Office of Water.

158  NPDES Permit Writers' Manual Special Conditions Chapter 8 In addition to any specific applicable 40 CFR Part 503 standards, three boilerplate conditions must be written in the NPDES permit: ( 1) language requiring the POTW/ TWTDS to comply with all existing requirements for sludge use and disposal,

including the 40 CFR Part 503 standards, ( 2) a reopener clause, which authorizes reopening a permit to include technical standards if the technical standards are more stringent or more comprehensive than the conditions in the permit, and ( 3) a notification provision requiring the permittee to give notice to the permitting authority when a significant change in the sludge use or disposal practice occurs ( or is planned).

If permit conditions based on existing regulations are insufficient to protect public health and the environment from adverse effects that may occur from toxic pollutants in sewage sludge, permit conditions should be developed on a case by case basis using BPJ to fulfill the statutory requirement. EPA's Part 503 Implementation Guidance 64 contains information to assist permit writers in developing pollutant limits and management practice requirements on a case by case basis to protect public health and the environment from adverse effects that may occur from toxic pollutants in sewage sludge.

8.3.3 Combined Sewer Overflows ( CSOs)

Combined sewer systems are designed to collect both sanitary and industrial wastewater and storm water runoff. During dry weather, combined sewers carry sanitary wastes and industrial discharges to a treatment plant. In periods of heavy rainfall, however, the combined storm water runoff and untreated sanitary sewage,

including industrial wastewater, can overflow and discharge this untreated wastewater directly to a water body. These overflows are called combined sewer overflows ( CSOs).

On April 19, 1994, EPA published a CSO Control Policy in the Federal Register ( 59 FR 18688) which represents a comprehensive national strategy to ensure that municipalities, permitting authorities, water quality standards authorities, and the public engage in a comprehensive and coordinated planning effort to achieve cost effective CSO controls that ultimately meet appropriate health and environmental objectives.

64USEPA ( 1995). Part 503 Implementation Guidance. EPA 833 R 95 001. Office of Water.

NPDES Permit Writers' Manual  159 Chapter 8 Special Conditions CSOs are point source discharges subject to both the technology based requirements of the CWA and to applicable State water quality standards. Under the CWA, CSOs must comply with the BAT for nonconventional and toxic pollutants and BCT for conventional pollutants. However, there are no promulgated BAT/ BCT effluent guidelines and limitations for CSOs. As a result, permit writers must use BPJ in developing technology based permit requirements for controlling CSOs. In addition,

permit conditions must achieve compliance with applicable water quality standards.

The 1994 CSO Control Policy contains the recommended approach for developing and issuing NPDES permits to control CSOs. In addition, EPA has developed the following guidance documents to help permit writers and permittees implement the CSO Control Policy:

° Combined Sewer Overflows   Guidance for Long Term Control Plan. 65 ° Combined Sewer Overflows   Guidance for Nine Minimum Controls. 66 ° Combined Sewer Overflows   Guidance for Screening and Ranking. 67 ° Combined Sewer Overflows   Guidance for Monitoring and Modeling. 68 ° Combined Sewer Overflows   Guidance for Financial Capability Assessment and Schedule Development. 69 ° Combined Sewer Overflows   Guidance for Funding Options. 70 ° Combined Sewer Overflows   Guidance for Permit Writers. 71 65USEPA ( 1995). Combined Sewer Overflows   Guidance for Long Term Control Plan. EPA 832/ B 95 002.

66USEPA ( 1995). Combined Sewer Overflows   Guidance for Nine Minimum Controls. EPA 832/ B 95 003.

67USEPA ( 1995). Combined Sewer Overflows   Guidance for Screening and Ranking. EPA 832/ B 95 004.

68USEPA ( 1995). Combined Sewer Overflows   Guidance for Monitoring and Modeling. ( DRAFT). EPA 832/ B 95 005.

69USEPA ( 1995). Combined Sewer Overflows   Guidance for Financial Capability Assessment and Schedule Development ( DRAFT). EPA 832/ B 95 006.

70USEPA ( 1995). Combined Sewer Overflows   Guidance for Funding Options. EPA 832/ B 95 007.

71USEPA ( 1995). Combined Sewer Overflows   Guidance for Permit Writers. EPA 832/ B 95 008.

160  NPDES Permit Writers' Manual Special Conditions Chapter 8 Combined Sewer Overflows   Guidance for Permit Writers contains guidance,

and example permit language that the permit writer can use. Because the control of CSOs typically requires substantial long term planning, construction, financing and continuous reassessment, the implementation of CSO controls will probably occur over several permit cycles. The Combined Sewer Overflows   Guidance for Permit Writers explains a phased permitting approach to CSOs. Exhibit 8 1 depicts this phased permitting approach and the types of permitting conditions that should be developed for each phase. Depending on the particular permittee's situation, a permit may contain both Phase I and Phase II elements. The initial permit conditions for CSOs,

called Phase I permit requirements, should address:

° Implementation of technology based CSO controls as soon as possible but no later than January 1, 1997. The policy describes nine CSO control measures that may be considered minimum BAT/ BCT, based on the permit writer's BPJ. Exhibit 8 2 shows the nine minimum controls ( NMC).

° Development of a CSO Long Term Control Plan ( LTCP) generally within 2 years of permit issuance. The policy describes the minimum elements which the LTCP should address. Exhibit 8 3 shows those minimum elements.

The second round of NPDES permits to control CSOs, called Phase II, will contain specific permit conditions addressing continued implementation of the NMC and implementation of the selected long term CSO control measures identified in the LTCP. The permit writer will need to review the permittee's LTCP and consult with other staff involved in the CSO control process and the permittee to determine the appropriate permit conditions. Water quality based controls will be expressed as narrative requirements and performance standards for the combined sewer system.

Finally, post Phase II permit conditions would address continued implementation of the NMC, long term CSO controls, and post construction compliance monitoring. There may also be numeric water quality based effluent limits when sufficient data exists to support their development.

NPDES Permit Writers' Manual  161 Chapter 8 Special Conditions EXHIBIT 8 1 Categories of CSO Permitting Conditions EXHIBIT 8 1 Categories of CSO Permitting Conditions Time ( yrs) 0 .................... 5................ 10............>

NPDES Permit Phase I Phase II Post Phase II A. Technology Based ° NMC, at a minimum ° NMC, at a minimum ° NMC, at a minimum B. Water Quality Based ° Narrative ° Narrative +

performancebased standards ° Narrative +

performancebased standards +

numeric water qualitybased effluent limits ( as appropriate)

C. Monitoring ° Characterization,

monitoring, and modeling of CSS ° Monitoring to evaluate water quality impacts ° Monitoring to determine effectiveness of CSO controls. ° Post construction compliance monitoring D. Reporting ° Documentation of NMC implementation ° Interim LTCP deliverables. ° Implementation of CSO controls ( both NMC and long term controls) ° Report results of postconstruction compliance monitoring E. Special Conditions ° Prohibition of dry weather overflows ( DWO)

° Development of LTCP. ° Prohibition of DWO ° Implementation of LTCP ° Reopener clause for water quality standards violations ° Sensitive area reassessment. ° Prohibition of DWO ° Reopener clause for water quality standards violations.

162  NPDES Permit Writers' Manual Special Conditions Chapter 8 In developing permit requirements to meet technology based requirements and EXHIBIT 8 2 Nine Minimum CSO Controls 1. Proper operation and regular maintenance programs for the sewer system and the CSOs 2. Maximum use of the collection system for storage 3. Review and modification of pretreatment requirements to ensure that CSO impacts are minimized 4. Maximization of flow to the POTW for treatment 5. Prohibition of CSOs during dry weather 6. Control of solid and floatable materials in CSOs 7. Establishment of pollution prevention programs 8. Public notification to ensure that the public receives adequate notification of CSO occurrences and CSO impacts 9. Monitoring to effectively characterize CSO impacts and the efficacy of CSO controls.

EXHIBIT 8 3 Elements of the Long Term CSO Control Plan 1. Characterization, monitoring, and modeling of the combined sewer system 2. Public participation 3. Consideration of sensitive areas 4. Evaluation of alternatives 5. Cost/ performance considerations 6. Operational plan 7. Maximizing treatment at the existing POTW treatment plant 8. Implementation schedule 9. Post construction compliance monitoring program.

applicable State water quality standards, the permit writer in conjunction with staff involved in water quality standards and the permittee, should identify the appropriate site specific considerations that will determine the CSO conditions to be established in the permit. EPA believes that the following information will be particularly relevant in developing the appropriate conditions:

NPDES Permit Writers' Manual  163 Chapter 8 Special Conditions ° CSO Discharge   Flow, frequency, and duration of the CSO discharge   Available effluent characterization data on the CSO discharge   Available information and data on the impacts of the CSO discharge( s) ( e. g., 305( b) reports, ambient survey data, fish kills, 304( l) lists of impaired waters)   Compliance history of the CSO owner, including performance and reliability of any existing CSO controls   Current NPDES permit and NPDES permit application   Facility planning information from the permittee which addresses CSOs ° Technologies   Performance data ( either from the manufacturer or from other applications) for various CSO technologies that may be employed, including equipment efficiency and reliability   Cost information associated with both the installation, operation and maintenance of CSO technologies   Reference materials on various types of CSO technologies ( e. g., Water Environment Federation Manual of Practice, American Society of Chemical Engineers publications).

8.3.4 Sanitary Sewer Overflows ( RESERVED)

8.3.5 Municipal Separate Storm Sewer Systems ( MS4)

The November 16, 1990 ( 55 FR 47990) storm water application regulations established requirements for a two part permit application that allows local governments to assist in defining priority pollutant sources within the municipality and to develop and implement appropriate controls for such discharges to MS4. Part II of the application required municipal applicants to propose municipal storm water management programs to control pollutants to the " maximum extent practicable"

( MEP) and to effectively prohibit non storm water discharges to the municipal system.

Municipal storm water management programs are a combination of source controls and management practices that address targeted sources within the boundaries of the municipal system. For example, a municipality that expects significant new development may focus more on proposing requirements for new development and construction. On the other hand, a municipality that does not expect significant new development may focus more on municipal activities that affect storm water quality 164  NPDES Permit Writers' Manual Special Conditions Chapter 8 such as: maintenance of leaking sanitary sewers, road de icing and maintenance,

operation of municipal landfills, flood control efforts, and control of industrial contributions of storm water.

As with any NPDES permit, MS4 permits must assure compliance with applicable technology based requirements ( in this case, the MEP) as well as applicable water quality standards. However, unlike POTWs where technology based requirements are defined by secondary treatment standards, and most industrial sources that have promulgated ELGs, there are no promulgated technology based standards that define MEP. Therefore, permit writers must rely on application requirements specified in the regulations and the applicants proposed management program when developing appropriate permit conditions. EPA has developed the following guidance document to assist permit writers as well as permittees to implement the Municipal Storm Water Program:

° Guidance Manual for the Preparation of Part 2 of the NPDES Permit Applications For Discharge From Municipal Separate Storm Sewer Systems. 72 72USEPA ( 1992). Guidance Manual for the Preparation of Part 2 of the NPDES Permit Application for Discharges from Municipal Separate Storm Sewer Systems. EPA 833/ B 92 002. Office of Water.

NPDES Permit Writers' Manual  165 Chapter 12 Permit Compliance and Enforcement 12.1 Overview Achieving and maintaining a high level of compliance with environmental laws and regulations are two of the most important goals of Federal and State environmental agencies. Enforcement provides a powerful incentive for NPDES permittees to comply. How an NPDES permit is written directly affects its enforceability. Each permit must be written clearly and without ambiguities so that compliance with the permit can be tracked effectively and the permit can be enforced in the event that violations occur.