Requirements for permitting.
(a) General requirements.
All State programs under this part must have legal authority to implement each of the following provisions and must be administered in conformance with each, except that States are not precluded from omitting or modifying any provisions to impose more stringent requirements:
(1) Confidentiality of information.
Claims of confidentiality will be denied for the following information:
The name and address of any permit applicant or permittee;
Permit applications, permits, and sewage sludge data. This includes information submitted on the permit application forms themselves and any attachments used to supply information required by the forms.
(2) Duration of permits.
NPDES permits issued to treatment works treating domestic sewage pursuant to section 405(f) of the CWA will be effective for a fixed term not to exceed five years.
Non-NPDES Permits issued to treatment works treating domestic sewage pursuant to section 405(f) of the CWA will be effective for a fixed term not to exceed ten years.
(3) Schedules of compliance—
The permit may, when appropriate, specify a schedule of compliance leading to compliance with the CWA and the requirements of this part. Any schedules of compliance under this section must require compliance as soon as possible, but not later than any applicable statutory deadline under the CWA.
(ii) Interim dates.
If a permit establishes a schedule of compliance which exceeds one year from the date of permit issuance, the schedule must set forth interim requirements and the date for their achievement, as appropriate.
The permit must be written to require that no later than 14 days following each interim date and the final date of compliance, the permittee must notify the Director in writing of its compliance or noncompliance with the interim or final requirements, or submit progress reports if paragraph (a)(3)(ii) of this section is applicable.
(4) Information requirements:
All treatment works treating domestic sewage shall submit to the Director within the time frames established in paragraph (d)(1)(ii) of this section the information listed in paragraphs (a)(4)(i) through (xii) of this section. The Director of an approved state program that chooses to receive electronic documents must satisfy the requirements of 40 CFR part 3 —(Electronic reporting).
(b) Conditions applicable to all permits.
In addition to permit conditions which must be developed on a case-by-case basis in order to meet applicable requirements of 40 CFR part 503, paragraphs (a)(1) through (a)(3) of this section, and permit conditions developed on a case-by-case basis using best professional judgment to protect public health and the environment from the adverse effects of toxic pollutants in sewage sludge, all permits must contain the following permit conditions (or comparable conditions as provided for in the Memorandum of Agreement):
(1) Duty to comply.
The permittee must comply with all conditions of this permit. Any permit noncompliance constitutes a violation of the Clean Water Act and is grounds for enforcement action; for permit termination, revocation and reissuance, or modification; or denial of a permit renewal application.
(2) Compliance with sludge standards.
The permittee shall comply with standards for sewage sludge use or disposal established under section 405(d) of the CWA ( 40 CFR part 503) within the time provided in the regulations that establish such standards, even if this permit has not yet been modified to incorporate the standards.
(3) CWA penalties.
Section 309 of the Clean Water Act (CWA) sets out penalties applicable to persons who violate the Act's requirements. For example, section 309(d) provides that any person who violates a permit condition implementing sections 301, 302, 306, 307, 308, 318, or 405 of the Clean Water Act is subject to a civil penalty not to exceed $25,000 per day for each violation. Such violations also may be subject to administrative penalties assessed by the Administrator pursuant to section 309(g) of the CWA. Any person who negligently violates permit conditions implementing sections 301, 302, 306, 307, 308, or 405 of the Clean Water Act is subject to a fine not less than $2,500 nor more than $25,000 per day of violation or by imprisonment for not more than 1 year, or both. Any person who knowingly violates a permit condition implementing sections 301, 302, 304, 307, 308, or 405 shall be punished by a fine not less than $5000 nor more than $50,000 per day of violation, or by imprisonment for not more than 3 years or both.
(4) Need to halt or reduce activity not a defense.
It shall not be a defense for a permittee in an enforcement action that it would have been necessary to halt or reduce the permitted activity in order to maintain compliance with the conditions of this permit.
(5) Duty to mitigate.
The permittee shall take all reasonable steps to minimize or prevent sludge use or disposal in violation of this permit which has a reasonable likelihood of adversely affecting human health or the environment.
(6) Proper operation and maintenance.
The permittee shall at all times properly operate and maintain all facilities and systems of treatment and control (and related appurtenances) which are installed or used by the permittee to achieve compliance with the conditions of this permit. Proper operation and maintenance also includes adequate laboratory controls and appropriate quality assurance procedures. This provision requires the operation of back-up or auxiliary facilities or similar systems which are installed by a permittee only when the operation is necessary to achieve compliance with the conditions of the permit.
(7) Permit actions.
This permit may be modified, revoked and reissued, or terminated for cause. The filing of a request by the permittee for a permit modification, revocation and reissuance, or termination, or a notification of planned changes or anticipated noncompliance does not stay any permit condition.
(8) Duty to provide information.
The permittee shall furnish to the Director, within a reasonable time, any information which the Director may request to determine whether cause exists for modifying, revoking and reissuing, or terminating this permit or to determine compliance with this permit. The permittee shall also furnish to the Director, upon request, copies of records required to be kept by this permit.
(9) Inspection and entry.
The permittee shall allow the Director, or an authorized representative, upon the presentation of credentials and other documents as may be required by law, to:
Enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit;
Have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit;
Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and
Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the Clean Water Act, any substances, parameters or practices at any location.
(10) Monitoring and records.
The permittee must monitor and report monitoring results as specified elsewhere in this permit with a frequency dependent on the nature and effect of its sludge use or disposal practices. At a minimum, this will be as required by 40 CFR part 503.
Samples and measurements taken for the purpose of monitoring shall be representative of the monitored activity. The permittee shall retain records of all monitoring information, copies of all reports required by this permit, and records of all data used to complete the application for this permit, for a period of at least five years from the date of the sample, measurement, report or application, or longer as required by 40 CFR part 503. This period may be extended by request of the Director at any time.
Records of monitoring information shall include:
The date, exact place, and time of sampling or measurements;
The individual(s) who perfored the sampling or measurements;
The date(s) analyses were performed;
The individual(s) who performed the analyses;
The analytical techniques or methods used; and
The results of such analyses.
Monitoring must be conducted according to test procedures specified in 40 CFR part 503 or 136 unless other test procedures have been specified in this permit.
The Clean Water Act provides that any person who knowingly falsifies, tampers with, or renders inaccurate any monitoring device or method required to be maintained under this permit shall, upon conviction, be punished for the first conviction by a fine of not more than $10,000 or by imprisonment for not more than 2 years per violation, or by both. Subsequent convictions for the same offense are punishable by a fine of not more than $20,000 per day of violation, or imprisonment of not more than 4 years, or both.
(11) Signatory requirements.
All applications, reports, or information submitted to the Director shall be signed and certified according to the provisions of 40 CFR 122.22.
The CWA provides that any person who knowingly makes any false statement, representation, or certification in any record or other document submitted or required to be maintained under this permit shall, upon conviction, be punished for the first conviction by a fine of not more than $10,000 per violation, or by imprisonment for not more than 2 years per violation, or by both. Subsequent convictions shall be punishable by a fine of not more than $20,000 per day of violation or by imprisonment of not more than 4 years, or by both.
(12) Notice requirements—
(i) Planned changes.
The permittee shall give notice to the Director as soon as possible of any planned physical alterations or additions to the permitted facility, or significant changes planned in the permittee's sludge disposal practice, where such alterations, additions, or changes may justify the application of permit conditions that are different from or absent in the existing permit, including notification of additional disposal sites not reported during the permit application process or not reported pursuant to an approved land application plan.
(ii) Anticipated noncompliance.
The permittee shall give advance notice to the Director of any planned changes in the permitted facility or activity which may result in noncompliance with permit requirements.
This permit is not transferable to any person except after notice to the Director. The Director may require modification or revocation and reissuance of the permit to change the name of the permittee and incorporate such other requirements as may be necessary under the CWA.
(iv) Other noncompliance reporting.
The permittee shall report all instances of noncompliance. Reports of noncompliance shall be submitted with the permittee's next self monitoring report or earlier. if requested by the Director or if required by an applicable standard for sewage sludge use or disposal or condition of this permit.
(v) Other information.
Where the permittee becomes aware that it failed to submit any relevant facts in a permit application, or submitted incorrect information in a permit application or in any report to the Director, it shall promptly submit such facts or information.
If a standard for sewage sludge use or disposal applicable to permittee's use or disposal methods is promulgated under section 405(d) of the CWA before the expiration of this permit, and that standard is more stringent than the sludge pollutant limits or acceptable management practices authorized in this permit, or controls a pollutant or practice not limited in this permit, this permit may be promptly modified or revoked and reissued to conform to the standard for sludge use or disposal promulgated under section 405(d) of the CWA.
(14) Duty to reapply.
If the permittee wishes to continue an activity regulated by the this permit after the expiration date of this permit, the permittee must apply for a new permit.
Indian Tribes can satisfy the criminal enforcement authority requirements of this section under § 501.25.
(c) Permit actions.
All State programs under this part shall have the legal authority to implement the following provisions as a minimum and must be administered in conformance with each.
(1) Transfer of permits—
(i) Transfers by modification.
Except as provided in paragraph (ii) of this section, a permit may be transferred by the permittee to a new owner or operator only if the permit has been modified or revoked and reissued to identify the new permittee and incorporate such other requirements as may be necessary to assure compliance with the CWA.
(ii) Automatic transfers.
As an alternative to transfers under paragraph (c)(1)(i) of this section, the State Director may authorize automatic transfer of any sludge permit to a new permittee if:
The current permittee notifies the Director at least 30 days in advance of the proposed transfer date in paragraph (c)(1)(ii)(B) of this section;
The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them; and
The Director does not notify the existing permittee and the proposed new permittee of his or her intent to modify or revoke and reissue the permit. If this notice is not received, the transfer is effective on the date specified in the agreement mentioned in paragraph (c)(ii)(B) of this section.
(2) Modification or revocation and reissuance of permits.
When the Director receives any information (for example, where the Director inspects the facility, receives information submitted by the permittee as required in the permit, receives a request for modification or revocation and reissuance under § 501.15(d)(2)(i), or conducts a review of the permit file), he or she may determine whether or not one or more of the causes listed in paragraphs (c)(2) (ii) and (iii) of this section for modification or revocation and reissuance or both exist. If cause exists, the Director may modify or revoke and reissue the permit and may request an updated application if necessary. When a permit is modified, only the conditions subject to a modification are reopened. If a permit is revoked and reissued, the entire permit is reopened and subject to revision and the permit is reissued for a new term. A draft permit must be prepared and other procedures in § 501.15(d) followed. If cause does not exist under this section, the Director shall not modify or revoke and reissue the permit.
(ii) Causes for modification.
The following are causes for modification but not revocation and reissuance of permits except when the permittee requests or agrees.
There are material and substantial alterations or additions to the permitted facility or activity which occurred after permit issuance which justify the application of permit conditions that are different from or absent in the existing permit.
The Director has received new information. Permits may be modified during their terms for this cause only if the information was not available at the time of permit issuance (other than revised regulations, guidance, or test methods) and would have justified the application of different permit conditions at the time of issuance.
(C) New regulations.
New regulations have been promulgated under section 405(d) of the CWA, or the standards or regulations on which the permit was based have been changed by promulgation of amended standards or regulations or by judicial decision after the permit was issued.
(D) Compliance schedules.
The Director determines good cause exists for modification of a compliance schedule, such as an Act of God, strike, flood, or materials shortage or other events over which the permittee has little or no control and for which there is no reasonable available remedy. However, in no case may a compliance schedule be modified to extend beyond an applicable CWA statutory deadline.
(E) Land application plans.
When required by a permit condition to incorporate a land application plan for beneficial reuse of sewage sludge, to revise an existing land application plan, or to add a land application plan.
The following are causes to modify or alternatively, revoke and reissue, a permit.
Cause exists for termination under § 501.15(c)(3) and the Director determines that modification or revocation and reissuance is appropriate.
The Director has received notification (as required in the permit, see § 501.15(b)(12)(iii)) of a proposed transfer of the permit.
(3) Termination of permits.
The following are causes for terminating a permit during its term, or for denying a permit renewal application:
Noncompliance by the permittee with any condition of the permit;
The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time;
A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or termination; or
A change in any condition that requires either a temporary or a permanent reduction or elimination of any activity controlled by the permit.
(d) Permit procedures.
All State programs approved under this part must have the legal authority to implement, and be administered in accordance with, each of following provisions, unless the Regional Administrator determines that the State program includes comparable or more stringent provisions.
(1) Application for a permit.
Any TWTDS whose sewage sludge use or disposal method is covered by part 503 and covered under the State program, and who does not have an effective sewage sludge permit, must complete, sign, and submit to the Director an application for a permit within the following time frames.
TWTDS with a currently effective NPDES permit must submit the required application information when the next application for NPDES permit renewal is due.
The required application information is listed in 40 CFR 122.21(q).
Other existing TWTDS not addressed under paragraph (d)(1)(i)(A) of this section must submit the information listed in paragraphs (d)(1)(i)(C)(1) through (d)(I)(i)(C)(5) of this section, to the Director within one year after publication of a standard applicable to their sewage sludge use or disposal practices. The Director will determine when such a TWTDS must submit a full permit application.
(1) Name, mailing address and location of the TWTDS;
(2) The operator's name, address, telephone number, ownership status, and status as Federal, State, private, public or other entity;
(3) A description of the sewage sludge use or disposal practices. Unless the sewage sludge meets the ceiling concentrations in 40 CFR 503.13(b)(1), the pollutant concentrations in 40 CFR 503.13(b)(3), the Class A pathogen requirements in 40 CFR 503.32(a), and one of the vector attraction reduction requirements in 40 CFR 503.33(b)(1) through (b)(8), the description must include the name and address of any facility where sewage sludge is sent for treatment or disposal, and the location of any land application sites;
(4) Annual amount of sewage sludge generated, treated, used or disposed (dry weight basis); and
(5) The most recent data the TWTDS may have on the quality of the sewage sludge.
Notwithstanding paragraph (d)(1)(i)(A) or (d)(1)(i)(B) of this section, the Director may require permit applications from any TWTDS at any time if the Director determines that a permit is necessary to protect public health and the environment from any potential adverse effects that may occur from toxic pollutants in sewage sludge.
Any TWTDS that commences operations after promulgation of an applicable standard for sewage sludge use or disposal must submit an application to the Director at least 180 days prior to the date proposed for commencing operations.
All TWTDS with a currently effective sewage sludge permit must submit a new application at least 180 days before the expiration date of their existing permit.
The Director will not begin the processing of a permit until the applicant has fully complied with the application requirements for that permit.
(2) Modification, revocation and reissuance, or termination of permits.
Permits may be modified, revoked and reissued, or terminated either at the request of any interested person (including the permittee) or upon the Director's initiative. However, permits may only be modified, revoked and reissued, or terminated for the reasons specified in § 501.15(c). All requests shall be in writing and shall contain factors or reasons supporting the request.
If the Director tentatively decides to modify or revoke and reissue a permit he or she shall prepare a draft permit incorporating the proposed changes. The Director may request additional information and, in the case of a modified permit, may require the submission of an updated application. In the case of a revoked and reissued permit, the Director shall require the submission of a new application. If the Director tentatively decides to terminate a permit he or she shall prepare a Notice of Intent to Terminate and follow the public notice and comment procedures outlined in Section 501.15(d)(6).
(3) Draft permits.
Once an application is complete, the Director shall tentatively decide whether to prepare a draft permit or to deny the application. If the Director decides to prepare a draft permit, he or she shall prepare a draft permit that contains the necessary conditions to implement this part, 40 CFR part 503, and section 405 of the CWA.
(4) Fact sheets.
A fact sheet must be prepared for every draft permit which the Director finds is the subject of widespread public interest or raises major issues. The fact sheet will briefly set forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit. The Director will send this fact sheet to the applicant and, on request, to any other person.
(5) Public notice of permit actions and public comment period.
The Director must give public notice that the following actions have occurred:
A draft permit has been prepared. At least 30 days must be allowed for public comment on the draft permit unless the Director has previously provided for public comment, for example after receipt of the permit application.
A meeting or hearing has been scheduled.
Public notice of activities described in paragraph (d)(5)(i) of this section must be given in the area affected by these activities by any method reasonably calculated to give actual notice of the action in question to any person affected or requesting notice of the action. Public notice may include publication of a notice in a daily or weekly newspaper within the area affected by the facility or activity, press releases, or any other forum or medium to elicit public participation.
(A) All public notices.
All public notices issued under this part must contain the following minimum information:
(1) Name and address of the office processing the permit action for which notice is being given;
(2) Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit;
(3) A brief description of the activity described in the permit application (including the inclusion of land application plan, if appropriate);
(4) Name, address and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit, fact sheet, and the application;
(5) A brief description of the comment procedures required by § 501.15(d)(6) and the time and place of any meeting or hearing that will be held, including a Statement of procedures to request a meeting or hearing (unless a meeting or hearing has already been scheduled) and other procedures by which the public may participate in the final permit decision; and
(6) Any additional information considered necessary or proper.
(B) Public notices for meetings or hearings.
In addition to the general public notice described in paragraph (d)(5)(iii)(A) of this section, the public notice of a meeting or hearing must contain the following information:
(1) Date, time and place of the meeting or hearing; and
(2) A brief description of the nature and purpose of the meeting or hearing, including the applicable rules and procedures.
(6) Public comments and requests for public meetings or hearings.
During the public comment period, any interested person may submit written comments on the draft permit and may request a public meeting or hearing, if no meeting or hearing has already been scheduled. A request for a public meeting or hearing must be in writing and must state the nature of the issues proposed to be raised in the meeting or hearing. All comments will be considered in making the final decision and must be answered as provided in paragraph (d)(8) of this section.
(7) Public meetings or hearings.
The Director will hold a public meeting or hearing whenever he or she finds, on the basis of requests, a significant degree of public interest in a draft permit. The Director may also hold a public meeting or hearing at his or her discretion, (e.g. where such a hearing might clarify one or more issues involved in the permit decision).
(8) Response to comments.
At the time a final permit is issued, the Director will issue a response to comments. The response to comments must be available to the public, and must:
Specify which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change; and
Briefly describe and respond to all significant comments on the draft permit raised during the public comment period or during any meeting or hearing.
(e) Optional program provisions.
The following provisions may be included in a State program at the State's option. If the State decides to adopt any of these provisions, they must be no less stringent than the corresponding Federal provisions:
Continuation of expiring permits ( 40 CFR 122.6 );
General permits ( 40 CFR 122.28 );
Minor modifications of permits ( 40 CFR 122.63 ); and
Effect of permit: affirmative defense ( 40 CFR 122.5(b) ).
(f) Conflict of interest.
Except as provided in paragraph (f)(2), State sludge management programs shall ensure that any board or body which approves all or portions of permits shall not include as a member any person who receives, or has during the previous two years received, a significant portion of income directly or indirectly from permit holders or applicants for a permit.
For the purposes of this paragraph:
“Board or body” includes any individual, including the Director, who has or shares authority to approve all or portions of permits either in the first instance, as modified or reissued, or on appeal.
“Significant portion of income” means 10 percent or more of gross personal income for a calendar year, except that it means 50 percent or more of gross personal income for a calendar year if the recipient is over 60 years of age and is receiving that portion under retirement, pension, or similar arrangement.
“Permit holders or applicants for a permit” does not include any department or agency of a State government, such as a Department of Parks or a Department of Fish and Wildlife.
“Income” includes retirement benefits, consultant fees, and stock dividends.
Income is not received “directly or indirectly from permit holders or applicants for a permit” when it is derived from mutual fund payments, or from other diversified investments for which the recipient does not know the identity of the primary sources of income.
The Administrator may waive the requirements of this paragraph if the board or body which approves all or portions of permits is subject to, and certifies that it meets, a conflict-of-interest standard imposed as part of another EPA-approved State permitting program or an equivalent standard.
[54 FR 18786, May 2, 1989, as amended at 58 FR 9414, Feb. 19, 1993; 58 FR 67984, Dec. 22, 1993; 63 FR 45125, Aug. 24, 1998; 64 FR 42470, Aug. 4, 1999; 70 FR 59889, Oct. 13, 2005]