[Title 40 CFR 122.44]
[Code of Federal Regulations (annual edition) - July 1, 1996 Edition]
[Title 40 - PROTECTION OF ENVIRONMENT]
[Chapter I - ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)]
[Subchapter D - WATER PROGRAMS]
[Part 122 - EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM]
[Subpart C - Permit Conditions]
[Sec. 122.44 - Establishing limitations, standards, and other permit conditions (applicable to State NPDES programs, see Sec. 123.25).]
[From the U.S. Government Publishing Office]




  40
  PROTECTION OF ENVIRONMENT
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  1996-07-01
  1996-07-01
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  122.44
  Sec. 122.44
  
    PROTECTION OF ENVIRONMENT
    ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
    WATER PROGRAMS
    EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
    Permit Conditions
  


Sec. 122.44  Establishing limitations, standards, and other permit conditions (applicable to State NPDES programs, see Sec. 123.25).

    In addition to the conditions established under Sec. 122.43(a), each 
NPDES permit shall include conditions meeting the following requirements 
when applicable.
    (a) Technology-based effluent limitations and standards based on 
effluent limitations and standards promulgated under section 301 of CWA 
or new source performance standards promulgated under section 306 of 
CWA, on case-by-case effluent limitations determined under section 
402(a)(1) of CWA, or on a combination of the two, in accordance with 
Sec. 125.3. For new sources or new dischargers, these technology based 
limitations and standards are subject to the provisions of 
Sec. 122.29(d) (protection period).
    (b)(1) Other effluent limitations and standards under sections 301, 
302, 303, 307, 318 and 405 of CWA. If any applicable toxic effluent 
standard or prohibition (including any schedule of compliance specified 
in such effluent standard or prohibition) is promulgated under section 
307(a) of CWA for a toxic pollutant and that standard or prohibition is 
more stringent than any limitation on the pollutant in the permit, the 
Director shall institute proceedings under these regulations to modify 
or revoke and reissue the permit to conform to the toxic effluent 
standard or prohibition. See also Sec. 122.41(a).
    (2) Standards for sewage sludge use or disposal under section 405(d) 
of the CWA unless those standards have been included in a permit issued 
under the appropriate provisions of subtitle C of the Solid Waste 
Disposal Act, Part C of Safe Drinking Water Act, the Marine Protection, 
Research, and Sanctuaries Act of 1972, or the Clean Air Act, or under 
State permit programs approved by the Administrator. When there are no 
applicable standards for sewage sludge use or disposal, the permit may 
include requirements developed on a case-by-case basis to protect public 
health and the environment from any adverse effects which may occur from 
toxic pollutants in sewage sludge. If

[[Page 441]]

any applicable standard for sewage sludge use or disposal is promulgated 
under section 405(d) of the CWA and that standard is more stringent than 
any limitation on the pollutant or practice in the permit, the Director 
may initiate proceedings under these regulations to modify or revoke and 
reissue the permit to conform to the standard for sewage sludge use or 
disposal.
    (c) Reopener clause: for any discharger within a primary industry 
category (see appendix A), requirements under section 307(a)(2) of CWA 
as follows:
    (1) On or before June 30, 1981: (i) If applicable standards or 
limitations have not yet been promulgated, the permit shall include a 
condition stating that, if an applicable standard or limitation is 
promulgated under sections 301(b)(2) (C) and (D), 304(b)(2), and 
307(a)(2) and that effluent standard or limitation is more stringent 
than any effluent limitation in the permit or controls a pollutant not 
limited in the permit, the permit shall be promptly modified or revoked 
and reissued to conform to that effluent standard or limitation.
    (ii) If applicable standards or limitations have been promulgated or 
approved, the permit shall include those standards or limitations. (If 
EPA approves existing effluent limitations or decides not to develop new 
effluent limitations, it will publish a notice in the Federal Register 
that the limitations are ``approved'' for the purpose of this 
regulation.)
    (2) On or after the statutory deadline set forth in section 
301(b)(2) (A), (C), and (E) of CWA, any permit issued shall include 
effluent limitations to meet the requirements of section 301(b)(2) (A), 
(C), (D), (E), (F), whether or not applicable effluent limitations 
guidelines have been promulgated or approved. These permits need not 
incorporate the clause required by paragraph (c)(1) of this section.
    (3) The Director shall promptly modify or revoke and reissue any 
permit containing the clause required under paragraph (c)(1) of this 
section to incorporate an applicable effluent standard or limitation 
under sections 301(b)(2) (C) and (D), 304(b)(2) and 307(a)(2) which is 
promulgated or approved after the permit is issued if that effluent 
standard or limitation is more stringent than any effluent limitation in 
the permit, or controls a pollutant not limited in the permit.
    (4) For any permit issued to a treatment works treating domestic 
sewage (including ``sludge-only facilities''), the Director shall 
include a reopener clause to incorporate any applicable standard for 
sewage sludge use or disposal promulgated under section 405(d) of the 
CWA. The Director may promptly modify or revoke and reissue any permit 
containing the reopener clause required by this paragraph if the 
standard for sewage sludge use or disposal is more stringent than any 
requirements for sludge use or disposal in the permit, or controls a 
pollutant or practice not limited in the permit.
    (d) Water quality standards and State requirements: any requirements 
in addition to or more stringent than promulgated effluent limitations 
guidelines or standards under sections 301, 304, 306, 307, 318 and 405 
of CWA necessary to:
    (1) Achieve water quality standards established under section 303 of 
the CWA, including State narrative criteria for water quality.
    (i) Limitations must control all pollutants or pollutant parameters 
(either conventional, nonconventional, or toxic pollutants) which the 
Director determines are or may be discharged at a level which will 
cause, have the reasonable potential to cause, or contribute to an 
excursion above any State water quality standard, including State 
narrative criteria for water quality.
    (ii) When determining whether a discharge causes, has the reasonable 
potential to cause, or contributes to an in-stream excursion above a 
narrative or numeric criteria within a State water quality standard, the 
permitting authority shall use procedures which account for existing 
controls on point and nonpoint sources of pollution, the variability of 
the pollutant or pollutant parameter in the effluent, the sensitivity of 
the species to toxicity testing (when evaluating whole effluent 
toxicity), and where appropriate, the dilution of the effluent in the 
receiving water.
    (iii) When the permitting authority determines, using the procedures 
in

[[Page 442]]

paragraph (d)(1)(ii) of this section, that a discharge causes, has the 
reasonable potential to cause, or contributes to an in-stream excursion 
above the allowable ambient concentration of a State numeric criteria 
within a State water quality standard for an individual pollutant, the 
permit must contain effluent limits for that pollutant.
    (iv) When the permitting authority determines, using the procedures 
in paragraph (d)(1)(ii) of this section, that a discharge causes, has 
the reasonable potential to cause, or contributes to an in-stream 
excursion above the numeric criterion for whole effluent toxicity, the 
permit must contain effluent limits for whole effluent toxicity.
    (v) Except as provided in this subparagraph, when the permitting 
authority determines, using the procedures in paragraph (d)(1)(ii) of 
this section, toxicity testing data, or other information, that a 
discharge causes, has the reasonable potential to cause, or contributes 
to an in-stream excursion above a narrative criterion within an 
applicable State water quality standard, the permit must contain 
effluent limits for whole effluent toxicity. Limits on whole effluent 
toxicity are not necessary where the permitting authority demonstrates 
in the fact sheet or statement of basis of the NPDES permit, using the 
procedures in paragraph (d)(1)(ii) of this section, that chemical-
specific limits for the effluent are sufficient to attain and maintain 
applicable numeric and narrative State water quality standards.
    (vi) Where a State has not established a water quality criterion for 
a specific chemical pollutant that is present in an effluent at a 
concentration that causes, has the reasonable potential to cause, or 
contributes to an excursion above a narrative criterion within an 
applicable State water quality standard, the permitting authority must 
establish effluent limits using one or more of the following options:
    (A) Establish effluent limits using a calculated numeric water 
quality criterion for the pollutant which the permitting authority 
demonstrates will attain and maintain applicable narrative water quality 
criteria and will fully protect the designated use. Such a criterion may 
be derived using a proposed State criterion, or an explicit State policy 
or regulation interpreting its narrative water quality criterion, 
supplemented with other relevant information which may include: EPA's 
Water Quality Standards Handbook, October 1983, risk assessment data, 
exposure data, information about the pollutant from the Food and Drug 
Administration, and current EPA criteria documents; or
    (B) Establish effluent limits on a case-by-case basis, using EPA's 
water quality criteria, published under section 304(a) of the CWA, 
supplemented where necessary by other relevant information; or
    (C) Establish effluent limitations on an indicator parameter for the 
pollutant of concern, provided:
    (1) The permit identifies which pollutants are intended to be 
controlled by the use of the effluent limitation;
    (2) The fact sheet required by Sec. 124.56 sets forth the basis for 
the limit, including a finding that compliance with the effluent limit 
on the indicator parameter will result in controls on the pollutant of 
concern which are sufficient to attain and maintain applicable water 
quality standards;
    (3) The permit requires all effluent and ambient monitoring 
necessary to show that during the term of the permit the limit on the 
indicator parameter continues to attain and maintain applicable water 
quality standards; and
    (4) The permit contains a reopener clause allowing the permitting 
authority to modify or revoke and reissue the permit if the limits on 
the indicator parameter no longer attain and maintain applicable water 
quality standards.
    (vii) When developing water quality-based effluent limits under this 
paragraph the permitting authority shall ensure that:
    (A) The level of water quality to be achieved by limits on point 
sources established under this paragraph is derived from, and complies 
with all applicable water quality standards; and
    (B) Effluent limits developed to protect a narrative water quality 
criterion, a numeric water quality criterion, or both, are consistent 
with the assumptions and requirements of any available wasteload 
allocation for the

[[Page 443]]

discharge prepared by the State and approved by EPA pursuant to 40 CFR 
130.7.
    (2) Attain or maintain a specified water quality through water 
quality related effluent limits established under section 302 of CWA;
    (3) Conform to the conditions to a State certification under section 
401 of the CWA that meets the requirements of Sec. 124.53 when EPA is 
the permitting authority. If a State certification is stayed by a court 
of competent jurisdiction or an appropriate State board or agency, EPA 
shall notify the State that the Agency will deem certification waived 
unless a finally effective State certification is received within sixty 
days from the date of the notice. If the State does not forward a 
finally effective certification within the sixty day period, EPA shall 
include conditions in the permit that may be necessary to meet EPA's 
obligation under section 301(b)(1)(C) of the CWA;
    (4) Conform to applicable water quality requirements under section 
401(a)(2) of CWA when the discharge affects a State other than the 
certifying State;
    (5) Incorporate any more stringent limitations, treatment standards, 
or schedule of compliance requirements established under Federal or 
State law or regulations in accordance with section 301(b)(1)(C) of CWA;
    (6) Ensure consistency with the requirements of a Water Quality 
Management plan approved by EPA under section 208(b) of CWA;
    (7) Incorporate section 403(c) criteria under part 125, subpart M, 
for ocean discharges;
    (8) Incorporate alternative effluent limitations or standards where 
warranted by ``fundamentally different factors,'' under 40 CFR part 125, 
subpart D;
    (9) Incorporate any other appropriate requirements, conditions, or 
limitations (other than effluent limitations) into a new source permit 
to the extent allowed by the National Environmental Policy Act, 42 
U.S.C. 4321 et seq. and section 511 of the CWA, when EPA is the permit 
issuing authority. (See Sec. 122.29(c)).
    (e) Technology-based controls for toxic pollutants. Limitations 
established under paragraphs (a), (b), or (d) of this section, to 
control pollutants meeting the criteria listed in paragraph (e)(1) of 
this section. Limitations will be established in accordance with 
paragraph (e)(2) of this section. An explanation of the development of 
these limitations shall be included in the fact sheet under 
Sec. 124.56(b)(1)(i).
    (1) Limitations must control all toxic pollutants which the Director 
determines (based on information reported in a permit application under 
Sec. 122.21(g)(7) or (10) or in a notification under Sec. 122.42(a)(1) 
or on other information) are or may be discharged at a level greater 
than the level which can be achieved by the technology-based treatment 
requirements appropriate to the permittee under Sec. 125.3(c); or
    (2) The requirement that the limitations control the pollutants 
meeting the criteria of paragraph (e)(1) of this section will be 
satisfied by:
    (i) Limitations on those pollutants; or
    (ii) Limitations on other pollutants which, in the judgment of the 
Director, will provide treatment of the pollutants under paragraph 
(e)(1) of this section to the levels required by Sec. 125.3(c).
    (f) Notification level. A ``notification level'' which exceeds the 
notification level of Sec. 122.42(a)(1)(i), (ii) or (iii), upon a 
petition from the permittee or on the Director's initiative. This new 
notification level may not exceed the level which can be achieved by the 
technology-based treatment requirements appropriate to the permittee 
under Sec. 125.3(c)
    (g) Twenty-four hour reporting. Pollutants for which the permittee 
must report violations of maximum daily discharge limitations under 
Sec. 122.41(1)(6)(ii)(C) (24-hour reporting) shall be listed in the 
permit. This list shall include any toxic pollutant or hazardous 
substance, or any pollutant specifically identified as the method to 
control a toxic pollutant or hazardous substance.
    (h) Durations for permits, as set forth in Sec. 122.46.
    (i) Monitoring requirements. In addition to Sec. 122.48, the 
following monitoring requirements:
    (1) To assure compliance with permit limitations, requirements to 
monitor:

[[Page 444]]

    (i) The mass (or other measurement specified in the permit) for each 
pollutant limited in the permit;
    (ii) The volume of effluent discharged from each outfall;
    (iii) Other measurements as appropriate including pollutants in 
internal waste streams under Sec. 122.45(i); pollutants in intake water 
for net limitations under Sec. 122.45(f); frequency, rate of discharge, 
etc., for noncontinuous discharges under Sec. 122.45(e); pollutants 
subject to notification requirements under Sec. 122.42(a); and 
pollutants in sewage sludge or other monitoring as specified in 40 CFR 
part 503; or as determined to be necessary on a case-by-case basis 
pursuant to section 405(d)(4) of the CWA.
    (iv) According to test procedures approved under 40 CFR part 136 for 
the analyses of pollutants having approved methods under that part, and 
according to a test procedure specified in the permit for pollutants 
with no approved methods.
    (2) Except as provided in paragraphs (i)(4) and (i)(5) of this 
section, requirements to report monitoring results shall be established 
on a case-by-case basis with a frequency dependent on the nature and 
effect of the discharge, but in no case less than once a year. For 
sewage sludge use or disposal practices, requirements to monitor and 
report results shall be established on a case-by-case basis with a 
frequency dependent on the nature and effect of the sewage sludge use or 
disposal practice; minimally this shall be as specified in 40 CFR part 
503 (where applicable), but in no case less than once a year.
    (3) Requirements to report monitoring results for storm water 
discharges associated with industrial activity which are subject to an 
effluent limitation guideline shall be established on a case-by-case 
basis with a frequency dependent on the nature and effect of the 
discharge, but in no case less than once a year.
    (4) Requirements to report monitoring results for storm water 
discharges associated with industrial activity (other than those 
addressed in paragraph (i)(3) of this section) shall be established on a 
case-by-case basis with a frequency dependent on the nature and effect 
of the discharge. At a minimum, a permit for such a discharge must 
require:
    (i) The discharger to conduct an annual inspection of the facility 
site to identify areas contributing to a storm water discharge 
associated with industrial activity and evaluate whether measures to 
reduce pollutant loadings identified in a storm water pollution 
prevention plan are adequate and properly implemented in accordance with 
the terms of the permit or whether additional control measures are 
needed;
    (ii) The discharger to maintain for a period of three years a record 
summarizing the results of the inspection and a certification that the 
facility is in compliance with the plan and the permit, and identifying 
any incidents of non-compliance;
    (iii) Such report and certification be signed in accordance with 
Sec. 122.22; and
    (iv) Permits for storm water discharges associated with industrial 
activity from inactive mining operations may, where annual inspections 
are impracticable, require certification once every three years by a 
Registered Professional Engineer that the facility is in compliance with 
the permit, or alternative requirements.
    (5) Permits which do not require the submittal of monitoring result 
reports at least annually shall require that the permittee report all 
instances of noncompliance not reported under Sec. 122.41(l) (1), (4), 
(5), and (6) at least annually.
    (j) Pretreatment program for POTWs. Requirements for POTWs to:
    (1) Identify, in terms of character and volume of pollutants, any 
significant indirect dischargers into the POTW subject to pretreatment 
standards under section 307(b) of CWA and 40 CFR part 403.
    (2) Submit a local program when required by and in accordance with 
40 CFR part 403 to assure compliance with pretreatment standards to the 
extent applicable under section 307(b). The local program shall be 
incorporated into the permit as described in 40 CFR part 403. The 
program shall require all indirect dischargers to the POTW to comply 
with the reporting requirements of 40 CFR part 403.

[[Page 445]]

    (3) For POTWs which are ``sludge-only facilities,'' a requirement to 
develop a pretreatment program under 40 CFR part 403 when the Director 
determines that a pretreatment program is necessary to assure compliance 
with Section 405(d) of the CWA.
    (k) Best management practices to control or abate the discharge of 
pollutants when:
    (1) Authorized under section 304(e) of CWA for the control of toxic 
pollutants and hazardous substances from ancillary industrial 
activities;
    (2) Numeric effluent limitations are infeasible, or
    (3) The practices are reasonably necessary to achieve effluent 
limitations and standards or to carry out the purposes and intent of 
CWA.
    (l) Reissued permits. (1) Except as provided in paragraph (l)(2) of 
this section when a permit is renewed or reissued, interim effluent 
limitations, standards or conditions must be at least as stringent as 
the final effluent limitations, standards, or conditions in the previous 
permit (unless the circumstances on which the previous permit was based 
have materially and substantially changed since the time the permit was 
issued and would constitute cause for permit modification or revocation 
and reissuance under Sec. 122.62.)
    (2) In the case of effluent limitations established on the basis of 
Section 402(a)(1)(B) of the CWA, a permit may not be renewed, reissued, 
or modified on the basis of effluent guidelines promulgated under 
section 304(b) subsequent to the original issuance of such permit, to 
contain effluent limitations which are less stringent than the 
comparable effluent limitations in the previous permit.
    (i) Exceptions--A permit with respect to which paragraph (l)(2) of 
this section applies may be renewed, reissued, or modified to contain a 
less stringent effluent limitation applicable to a pollutant, if--
    (A) Material and substantial alterations or additions to the 
permitted facility occurred after permit issuance which justify the 
application of a less stringent effluent limitation;
    (B)(1) Information is available which was not available at the time 
of permit issuance (other than revised regulations, guidance, or test 
methods) and which would have justified the application of a less 
stringent effluent limitation at the time of permit issuance; or
    (2) The Administrator determines that technical mistakes or mistaken 
interpretations of law were made in issuing the permit under section 
402(a)(1)(b);
    (C) A less stringent effluent limitation is necessary because of 
events over which the permittee has no control and for which there is no 
reasonably available remedy;
    (D) The permittee has received a permit modification under section 
301(c), 301(g), 301(h), 301(i), 301(k), 301(n), or 316(a); or
    (E) The permittee has installed the treatment facilities required to 
meet the effluent limitations in the previous permit and has properly 
operated and maintained the facilities but has nevertheless been unable 
to achieve the previous effluent limitations, in which case the 
limitations in the reviewed, reissued, or modified permit may reflect 
the level of pollutant control actually achieved (but shall not be less 
stringent than required by effluent guidelines in effect at the time of 
permit renewal, reissuance, or modification).
    (ii) Limitations. In no event may a permit with respect to which 
paragraph (l)(2) of this section applies be renewed, reissued, or 
modified to contain an effluent limitation which is less stringent than 
required by effluent guidelines in effect at the time the permit is 
renewed, reissued, or modified. In no event may such a permit to 
discharge into waters be renewed, issued, or modified to contain a less 
stringent effluent limitation if the implementation of such limitation 
would result in a violation of a water quality standard under section 
303 applicable to such waters.
    (m) Privately owned treatment works. For a privately owned treatment 
works, any conditions expressly applicable to any user, as a limited co-
permittee, that may be necessary in the permit issued to the treatment 
works to ensure compliance with applicable requirements under this part. 
Alternatively, the Director may issue separate permits to the treatment 
works

[[Page 446]]

and to its users, or may require a separate permit application from any 
user. The Director's decision to issue a permit with no conditions 
applicable to any user, to impose conditions on one or more users, to 
issue separate permits, or to require separate applications, and the 
basis for that decision, shall be stated in the fact sheet for the draft 
permit for the treatment works.
    (n) Grants. Any conditions imposed in grants made by the 
Administrator to POTWs under sections 201 and 204 of CWA which are 
reasonably necessary for the achievement of effluent limitations under 
section 301 of CWA.
    (o) Sewage sludge. Requirements under section 405 of CWA governing 
the disposal of sewage sludge from publicly owned treatment works or any 
other treatment works treating domestic sewage for any use for which 
regulations have been established, in accordance with any applicable 
regulations.
    (p) Coast Guard. When a permit is issued to a facility that may 
operate at certain times as a means of transportation over water, a 
condition that the discharge shall comply with any applicable 
regulations promulgated by the Secretary of the department in which the 
Coast Guard is operating, that establish specifications for safe 
transportation, handling, carriage, and storage of pollutants.
    (q) Navigation. Any conditions that the Secretary of the Army 
considers necessary to ensure that navigation and anchorage will not be 
substantially impaired, in accordance with Sec. 124.58.
    (r) Great Lakes. When a permit is issued to a facility that 
discharges into the Great Lakes System (as defined in 40 CFR 132.2), 
conditions promulgated by the State, Tribe, or EPA pursuant to 40 CFR 
part 132.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 31842, Aug. 8, 1984; 49 
FR 38049, Sept. 26, 1984; 50 FR 6940, Feb. 19, 1985; 50 FR 7912, Feb. 
27, 1985; 54 FR 256, Jan. 4, 1989; 54 FR 18783, May 2, 1989; 54 FR 
23895, June 2, 1989; 57 FR 11413, Apr. 2, 1992; 57 FR 33049, July 24, 
1992; 60 FR 15386, Mar. 23, 1995]