Scope of the NPDES Program

The National Pollutant Discharge Elimination System (NPDES) permitting program is described in Section 402 of the Clean Water Act (CWA). The primary regulations developed by EPA to implement and administer the program are found in Title 40 of the Code of Federal Regulations (40 CFR 122) Under the NPDES Program, all facilities which discharge pollutants from any point source into waters of the United States are required to obtain an NPDES permit. Understanding how each of the key terms ("pollutant," "point source" and "waters of the United States") have been defined and interpreted by the regulations is the key to defining the scope of the NPDES Program.

Pollutant
The term pollutant is defined very broadly by the NPDES regulations and case law, and includes substances found in industrial, municipal, and certain types of agricultural waste discharged into water. For regulatory purposes, pollutants have been grouped into three general categories: conventional, toxic, and non-conventional. There are five conventional pollutants: biochemical oxygen demand (BOD), total suspended solids (TSS), pH, fecal coliform, and oil and grease (defined in 40 CFR 401.16). Toxic pollutants, or priority pollutants, are those defined in Section 307(a)(1) of the CWA and include metals and manmade organic compounds. Non-conventional pollutants are those which do not fall under either of the above categories, and include such parameters as ammonia, nitrogen, phosphorus, chemical oxygen demand (COD), and whole effluent toxicity (WET).

Point Source
Pollutants can enter waters of the United States from a variety of pathways including agricultural, municipal, and industrial sources. For regulatory purposes these sources are generally categorized as either point sources or non-point sources. Typical point source discharges include discharges from publicly owned treatment works (POTWs), discharges from industrial facilities, and stormwater discharges associated with industrial activity, construction and urban runoff (Federal Storm Water Program). While provisions of the NPDES Program do address certain specific types of agricultural activities (i.e., concentrated animal feeding operations), the majority of agricultural facilities are defined as non-point sources and are exempt from NPDES regulation. (See 40CFR 122.2 for definition of point source). Pollutant contributions to waters of the United States may come from both direct and indirect sources. Direct sources discharge wastewater directly into the receiving water body, whereas indirect sources discharge wastewater to a POTW, which in turn discharges into the receiving water body. NPDES permits are issued only to direct point source discharges. Industrial and commercial indirect dischargers are addressed by the National Pretreatment Program.

Waters of the United States
EPA defines the term waters of the United States to include navigable waters and their tributaries, interstate waters, and intrastate lakes, rivers, and streams (40 CFR 122.2). The intent of the definition is to cover all possible waters within federal jurisdiction under the Commerce Clause of the Constitution. The definition has been interpreted to include virtually all surface waters in the United States, including wetlands and ephemeral streams. In general, groundwater is not considered a water of the United States; therefore, discharges to groundwater are not subject to NPDES requirements. If, on the other hand, there is a discharge to groundwater that has a hydrologic connection to a nearby surface water, the discharger may be required to apply for an NPDES permit.

Municipal Discharge Sources
Municipal sources are POTWs that receive and treat primarily domestic sewage from residential and commercial sources. Larger POTWs will also typically receive and treat wastewater from industrial facilities (indirect dischargers). Treatment processes produce the treated effluent (wastewater) and a biosolids (sludge) residual, which is managed under the Municipal Sewage Sludge Program. Some older POTWs have an additional concern of combined sewer overflow (CSO) systems that can release untreated effluent during storm events. Specific NPDES program areas applicable to municipal sources are:

• The National Pretreatment Program
• The Municipal Sewage Sludge Program
• The New Hampshire Sludge Management Program
• Combined Sewer Overflows (CSOs)

Non-municipal Sources
Non-municipal sources, which include industrial and commercial facilities, are unique with respect to the products and processes present at the facility. Unlike municipal sources, at industrial facilities the discharges vary widely according to the types of raw materials, production processes, treatment technologies, and pollutants.

Residuals (sludge) generated by industrial facilities are not currently regulated by the federal NPDES Program. The New Hampshire Residuals Management Section regulates the removal, transportation, and disposal of industrial septage to ensure this material is utilized or disposed in an environmentally sound manner. Specific federal NPDES program areas applicable to industrial sources are process wastewater discharges and non-process wastewater discharges.

TYPES OF PERMITS

A permit is typically a license for a facility to discharge a specified amount of a pollutant into a receiving water under certain conditions; however, permits may also authorize facilities to process, incinerate, landfill, or beneficially use sewage sludge. The two basic types of NPDES permits issued are individual and general permits.

An individual permit is a permit specifically tailored to an individual facility. Once a facility submits the appropriate application(s), the permitting authority develops a permit for that particular facility based on the information contained in the permit application (e.g., type of activity, nature of discharge, receiving water quality). The authority issues the permit to the facility for a specific time period (not to exceed five years) with a requirement that the facility reapply prior to the expiration date.

A general permit covers multiple facilities within a specific category. General permits offer a cost-effective option for permitting agencies because of the large number of facilities that can be covered under a single permit. According to the NPDES regulations at 40 CFR §l22.28, general permits may be written to cover categories of point sources having common elements, such as the same type of operations and wastewater. General permits, however, may only be issued to dischargers within a specific geographical area or watershed.

OVERVIEW OF THE PERMITTING PROCESS
While the limits and conditions in an individual NPDES permit are unique to the permittee, the process used to develop the limits and conditions and issue the permit generally follows a common set of steps. A general description of permitting process for individual and general permits is presented below.

Individual Permits
The major steps for EPA-NE to develop and issue an individual NPDES permit are found in 40 CFR §124. The NPDES permitting process begins when the operator of the facility (permittee) submits an application. EPA reviews the application for completeness and accuracy. When the application is complete, EPA, using the application data, begins to develop the draft permit and the justification for the permit conditions (referred to as the fact sheet or statement of basis). The first major step in the development process is deriving technology-based effluent limits for industries or secondary treatment requirements for POTWs. Technology based effluent limits are as defined by 40CFR §§ 400 through 471. Secondary treatment requirements are defined by 40 CFR § 133. Following this step, the permit writer derives effluent limits that are protective of state water quality standards (i.e., water quality-based effluent limits). The permit writer then compares the technology-based effluent limits with the water quality-based effluent limits and applies the more stringent limits in the permit. Following the development of effluent limits, EPA develops appropriate monitoring and reporting conditions and facility-specific special conditions. All permits include standard conditions that are the same for all permits.

After the draft permit is complete, EPA provides an opportunity for public participation in the permit process. A public notice in a local newspaper announces the permit availability and interested parties may obtain copies and submit comments. If enough interest is expressed, a public hearing may also be held. If no appeals are made on the permit, the permitting authority then develops the final permit and issues the final permit (and Response to Public Comments) to the facility.

General Permits
The EPA first identifies the need for a general permit by collecting data demonstrating that a group, or category, of dischargers has similarities that warrant a general permit. The remaining steps of the permit process are the similar to those for issuing individual permits. One significant difference is that EPA issues a public notice with the draft permit in the Federal Register instead of a local newpaper. Then, after the public comment period, EPA documents the issues for the administrative record, and issues the final permit in the Federal Register. After the general permit has been issued, facilities that wish to be covered under the general permit submit a Notice of Intent (NOI) application to the permitting authority. The permitting authority may then either request additional information describing the facility, notify the facility that it is covered by the general permit, or require the facility to apply for an individual permit.

ROLES AND RESPONSIBILITIES OF THE FEDERAL AND STATE AUTHORITIES

EPA may authorize states, territories, or tribes to implement all or parts of the NPDES program. New Hampshire has chosen to not administer the NPDES programs, and therefore, EPA administers the program in the state. When EPA issues the permit, Section 401(a) of the CWA requires that EPA obtain certification from the state to ensure that the discharge will be in compliance with effluent limits, the state's water quality standards, and "any other appropriate requirement of State law." Section 401(d) requires the state to list in the certification the conditions that must be included in the permit to implement the certification. When EPA issues a final individual permit or grants a discharger coverage under a general permit, the state adopts it as a state surface water discharge permit pursuant to New Hampshire's RSA 485-A:13,I(a). NHDES compliance section staff then share the inspection and enforcement responsibilities with EPA.

GENERAL PERMITS¹ ADMINISTERED BY EPA-NE AND CERTIFIED BY DES

Construction Dewatering General Permit

This NPDES general permit covers construction dewatering discharges defined as pumped or drained discharges of groundwater and/or stormwater from excavations or other points of accumulation associated with a construction activity. Qualified dischargers must submit an NOI Construction Dewatering NOI to EPA-NE to be covered and will receive a written notification from EPA-NE of permit coverage. The EPA-NE contact for NOI forms is Shelley Puleo at (617) 918-1545. The DES contact for this permit is Susan Willoughby at (603) 271-3307.

Non-Contact Cooling Water General Permit

Non-contact cooling water discharges do not contain or come in contact with raw materials, intermediate products, finished products, or process wastes. The only pollutants allowed are heat and non-toxic pH neutralization chemicals. Though these discharges should not contain toxic pollutants, toxic effects may still occur as a result of toxic or corrosive source water. If a discharge would violate water quality criteria established for toxic pollutants, it would not qualify for this general permit. The DES contact for this permit is Jeff Andrews at (603) 271-2984.

Activities at Remediation and Miscellaneous Contaminated Sites General Permit

The Remediation General Permit was developed to cover discharges from soil or groundwater remediation sites, certain construction sites, and certain pipeline or tank cleaning/flushing activities as follows:

• Remediation activities related primarily to petroleum contamination.
• Remediation activities where petroleum contamination is not the primary contaminant, but there may be toxic or hazardous chemicals present.
• Contaminated construction sites where excavation de-watering is required.
• Sump discharges, dredge drain-back (if not covered by Section 401/404 of the Clean Water Act), aquifer pump testing at contaminated sites, well-development or rehabilitation at contaminated or formerly contaminated sites, and hydrostatic testing of pipelines and tanks.

Applicants must submit a NOI (RGP NOI form) at least 14 days prior to the commencement of the discharge. The NHDES contact for guidance on this permit is Jeff Andrews at (603) 271-2984.

Drinking Water Treatment Plant Backwash General Permit

Under this general permit, owners and operators of potable water treatment plants may be granted authorization to discharge process wastewaters as follows:

• Treated presedimentation underflow.
• Treated underflow from the coagulation/settling processes using aluminum compounds or polymers as coagulants.
• Treated filter backwash water from filters.

This general permit also applies to discharges at water treatment facilities from sludge settling lagoons or other devices where control of suspended solids is possible. The DES contact for this permit is Dan Dudley at (603) 271-0671.

POTW General Permit

The NPDES general permit for certain Publicly Owned Treatment Works (POTWs) and other treatment works treating domestic sewage is available to facilities having a dilution factor equal to or greater than 50:1 in the receiving water. Applicants must submit a Notice of Intent (NOI) in lieu of the standard NPDES Forms 1 and 2 for individual permits. The NOI forms are available at the DES Wastewater Engineering Bureau's website (DES notice of intent form). The DES contacts for this permit are Dan Dudley at (603) 271-0671, or Susan Willoughby at (603) 271-3307.

Hydroelectric Generating Facilities General Permit

This new permit (draft at the publication of this fact sheet) is for specific discharges at hydroelectric generating facilities. These discharges are equipment cooling water, equipment and floor drain water, equipment backwash water, and specific equipment maintenance waters. Any river flow over a dam or through turbines is not regulated under this permit. The DES contact for this permit is Dan Dudley at (603) 271-0671.

¹This section does not discuss the NPDES Stormwater General Permits