EPA Publishes Rules for National Pollutant Discharge Elimination System

EPA recently issued final regulations implementing the discharge permit requirements of the Federal Water Pollution Control Act.¹ The permit system is the basic enforcement mechanism for achieving the effluent and water quality standards established by the Act. The discharge of any pollutant into navigable waters requires a permit, either from the federal government or an EPA-approved state program. So far California is the only state to have had its program approved.

The scope of the Act is set out in two important definitions contained in the Regulations. Part 125.1 (o) defines "navigable waters" and encompasses any water which Congress would have the power to regulate under the Commerce Clause, a much broader assertion of federal power than would be possible were the test "navigability in fact." The term "pollutant" is defined in Part 125.1 (x) as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt, and industrial, municipal, and agricultural waste discharged into water." Most vessel discharges, dredge-and-fill material, deposits into publicly-owned treatment works, and uncontrolled storm runoffs are specifically excluded from the permit requirement.

Persons who received permits under the Refuse Act Permit Program are not required to reapply unless the discharge described in the application has changed substantially. Until July 15th, persons must apply for a permit 60 days prior to commencing a discharge. After July 15th, the application period will be 180 days, unless permission for a later filing is granted by the Regional Administrator. All discharges of any size require filling out a short written form. A longer form is required if the discharges have a total volume of 50,000 gallons on any single day, if the discharges affect any state other than the state of origin, of if the discharges contain toxic pollutants. Applications for more than 500,000 gallong on any day must include a detailed fact sheet.

Several other agencies in addition to EPA are entitled to receive copies of permit applications. The Army Corps of Engineers may deny or impose conditions on the granting of a permit if it finds that anchorage and navigation will be substantially impaired. The Interior and Commerce departments are entitled to evaluate the effects of a proposed discharge on fish and wildlife resources. Their role is described in another ELR Comment is this issue.

The state water pollution control agencies receive copies of applications and play an important role in the decisionto grant or deny the permit. No discharge can be approved without certification from the state in which the discharge originated that the discharge will meet applicable effluent and water quality standards. Effluent standards are now being formulated by EPA, but water quality standards are set by the states subject to EPA approval.

Parts 125.31 and 125.32 provide for notice and opportunity for public hearings. Environmental groups and their lawyers should take particular note of these provisions. Any person or group who signs a list to be maintained by the Regional Administrator will receive notice of all applications for permits filed within the state. The Regional Administrator may hold a public hearing regarding issuance of the permit if he finds a significant degree of public interest. Persons may also request an adjudicatory hearing by the Regional Administrator if there are material issues appropriate to resolution in an adjudicatory setting. Any party may appeal the decision of the Regional Administrator to the Administrator.

Permits are granted subject to later modification or revocation if the discharge occurs more frequently or at a level in excess of that specified. Permit holders also must permit federal officials to inspect required records and monitoring equipment. Discharges which do not meet applicable standards are required to comply with scheduled reductions set by the Regional Administrator.

Permits issued by the EPA are intended to satisfy the Refuse Act requirements. Permits, unless for new sources, are also specifically exempted from the NEPA impact statement requirement.

1. Part 125, National Pollutant Discharge Elimination System, 38 Fed. Reg. 13528 (May 22, 1973), ELR 46304, pursuant to 33 U.S.C. 1151 et seq., 3 ELR 41101.