[Code of Federal Regulations] [Title 40, Volume 18] [Revised as of July 1, 2002] From the U.S. Government Printing Office via GPO Access [CITE: 40CFR122.2] [Page 125-132] TITLE 40--PROTECTION OF ENVIRONMENT CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED) PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM--Table of Contents Subpart A--Definitions and General Program Requirements Sec. 122.2 Definitions. The following definitions apply to parts 122, 123, and 124. Terms not defined in this section have the meaning given by CWA. When a defined term appears in a definition, the defined term is sometimes placed in quotation marks as an aid to readers. Administrator means the Administrator of the United States Environmental Protection Agency, or an authorized representative. Animal feeding operation is defined at Sec. 122.23. Applicable standards and limitations means all State, interstate, and federal standards and limitations to which a ``discharge,'' a ``sewage sludge use or disposal practice,'' or a related activity is subject under the CWA, including ``effluent limitations,'' water quality standards, standards of performance, toxic effluent standards or prohibitions, ``best management practices,'' [[Page 126]] pretreatment standards, and ``standards for sewage sludge use or disposal'' under sections 301, 302, 303, 304, 306, 307, 308, 403 and 405 of CWA. Application means the EPA standard national forms for applying for a permit, including any additions, revisions or modifications to the forms; or forms approved by EPA for use in ``approved States,'' including any approved modifications or revisions. Approved program or approved State means a State or interstate program which has been approved or authorized by EPA under part 123. Aquaculture project is defined at Sec. 122.25. Average monthly discharge limitation means the highest allowable average of ``daily discharges'' over a calendar month, calculated as the sum of all ``daily discharges'' measured during a calendar month divided by the number of ``daily discharges'' measured during that month. Average weekly discharge limitation means the highest allowable average of ``daily discharges'' over a calendar week, calculated as the sum of all ``daily discharges'' measured during a calendar week divided by the number of ``daily discharges'' measured during that week. Best management practices (``BMPs'') means schedules of activities, prohibitions of practices, maintenance procedures, and other management practices to prevent or reduce the pollution of ``waters of the United States.'' BMPs also include treatment requirements, operating procedures, and practices to control plant site runoff, spillage or leaks, sludge or waste disposal, or drainage from raw material storage. BMPs means ``best management practices.'' Class I sludge management facility means any POTW identified under 40 CFR 403.8(a) as being required to have an approved pretreatment program (including such POTWs located in a State that has elected to assume local program responsibilities pursuant to 40 CFR 403.10(e)) and any other treatment works treating domestic sewage classified as a Class I sludge management facility by the Regional Administrator, or, in the case of approved State programs, the Regional Administrator in conjunction with the State Director, because of the potential for its sludge use or disposal practices to adversely affect public health and the environment. Bypass is defined at Sec. 122.41(m). Concentrated animal feeding operation is defined at Sec. 122.23. Concentrated aquatic animal feeding operation is defined at Sec. 122.24. Contiguous zone means the entire zone established by the United States under Article 24 of the Convention on the Territorial Sea and the Contiguous Zone. Continuous discharge means a ``discharge'' which occurs without interruption throughout the operating hours of the facility, except for infrequent shutdowns for maintenance, process changes, or other similar activities. CWA means the Clean Water Act (formerly referred to as the Federal Water Pollution Control Act or Federal Water Pollution Control Act Amendments of 1972) Public Law 92-500, as amended by Public Law 95-217, Public Law 95-576, Public Law 96-483 and Public Law 97-117, 33 U.S.C. 1251 et seq. CWA and regulations means the Clean Water Act (CWA) and applicable regulations promulgated thereunder. In the case of an approved State program, it includes State program requirements. Daily discharge means the ``discharge of a pollutant'' measured during a calendar day or any 24-hour period that reasonably represents the calendar day for purposes of sampling. For pollutants with limitations expressed in units of mass, the ``daily discharge'' is calculated as the total mass of the pollutant discharged over the day. For pollutants with limitations expressed in other units of measurement, the ``daily discharge'' is calculated as the average measurement of the pollutant over the day. Direct discharge means the ``discharge of a pollutant.'' Director means the Regional Administrator or the State Director, as the context requires, or an authorized representative. When there is no ``approved State program,'' and there is an EPA administered program, ``Director'' means the Regional Administrator. [[Page 127]] When there is an approved State program, ``Director'' normally means the State Director. In some circumstances, however, EPA retains the authority to take certain actions even when there is an approved State program. (For example, when EPA has issued an NPDES permit prior to the approval of a State program, EPA may retain jurisdiction over that permit after program approval, see Sec. 123.1.) In such cases, the term ``Director'' means the Regional Administrator and not the State Director. Discharge when used without qualification means the ``discharge of a pollutant.'' Discharge of a pollutant means: (a) Any addition of any ``pollutant'' or combination of pollutants to ``waters of the United States'' from any ``point source,'' or (b) Any addition of any pollutant or combination of pollutants to the waters of the ``contiguous zone'' or the ocean from any point source other than a vessel or other floating craft which is being used as a means of transportation. This definition includes additions of pollutants into waters of the United States from: surface runoff which is collected or channelled by man; discharges through pipes, sewers, or other conveyances owned by a State, municipality, or other person which do not lead to a treatment works; and discharges through pipes, sewers, or other conveyances, leading into privately owned treatment works. This term does not include an addition of pollutants by any ``indirect discharger.'' Discharge Monitoring Report (``DMR'') means the EPA uniform national form, including any subsequent additions, revisions, or modifications for the reporting of self-monitoring results by permittees. DMRs must be used by ``approved States'' as well as by EPA. EPA will supply DMRs to any approved State upon request. The EPA national forms may be modified to substitute the State Agency name, address, logo, and other similar information, as appropriate, in place of EPA's. DMR means ``Discharge Monitoring Report.'' Draft permit means a document prepared under Sec. 124.6 indicating the Director's tentative decision to issue or deny, modify, revoke and reissue, terminate, or reissue a ``permit.'' A notice of intent to terminate a permit, and a notice of intent to deny a permit, as discussed in Sec. 124.5, are types of ``draft permits.'' A denial of a request for modification, revocation and reissuance, or termination, as discussed in Sec. 124.5, is not a ``draft permit.'' A ``proposed permit'' is not a ``draft permit.'' Effluent limitation means any restriction imposed by the Director on quantities, discharge rates, and concentrations of ``pollutants'' which are ``discharged'' from ``point sources'' into ``waters of the United States,'' the waters of the ``contiguous zone,'' or the ocean. Effluent limitations guidelines means a regulation published by the Administrator under section 304(b) of CWA to adopt or revise ``effluent limitations.'' Environmental Protection Agency (``EPA'') means the United States Environmental Protection Agency. EPA means the United States ``Environmental Protection Agency.'' Facility or activity means any NPDES ``point source'' or any other facility or activity (including land or appurtenances thereto) that is subject to regulation under the NPDES program. Federal Indian reservation means all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation. General permit means an NPDES ``permit'' issued under Sec. 122.28 authorizing a category of discharges under the CWA within a geographical area. Hazardous substance means any substance designated under 40 CFR part 116 pursuant to section 311 of CWA. Indian country means: (1) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation; (2) All dependent Indian communities with the borders of the United States whether within the originally or subsequently acquired territory thereof, and [[Page 128]] whether within or without the limits of a state; and (3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Indian Tribe means any Indian Tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a Federal Indian reservation. Indirect discharger means a nondomestic discharger introducing ``pollutants'' to a ``publicly owned treatment works.'' Individual control strategy is defined at 40 CFR 123.46(c). Interstate agency means an agency of two or more States established by or under an agreement or compact approved by the Congress, or any other agency of two or more States having substantial powers or duties pertaining to the control of pollution as determined and approved by the Administrator under the CWA and regulations. Major facility means any NPDES ``facility or activity'' classified as such by the Regional Administrator, or, in the case of ``approved State programs,'' the Regional Administrator in conjunction with the State Director. Maximum daily discharge limitation means the highest allowable ``daily discharge.'' Municipality means a city, town, borough, county, parish, district, association, or other public body created by or under State law and having jurisdiction over disposal of sewage, industrial wastes, or other wastes, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of CWA. Municipal separate storm sewer system is defined at Sec. 122.26 (b)(4) and (b)(7). National Pollutant Discharge Elimination System (NPDES) means the national program for issuing, modifying, revoking and reissuing, terminating, monitoring and enforcing permits, and imposing and enforcing pretreatment requirements, under sections 307, 402, 318, and 405 of CWA. The term includes an ``approved program.'' New discharger means any building, structure, facility, or installation: (a) From which there is or may be a ``discharge of pollutants;'' (b) That did not commence the ``discharge of pollutants'' at a particular ``site'' prior to August 13, 1979; (c) Which is not a ``new source;'' and (d) Which has never received a finally effective NDPES permit for discharges at that ``site.'' This definition includes an ``indirect discharger'' which commences discharging into ``waters of the United States'' after August 13, 1979. It also includes any existing mobile point source (other than an offshore or coastal oil and gas exploratory drilling rig or a coastal oil and gas developmental drilling rig) such as a seafood processing rig, seafood processing vessel, or aggregate plant, that begins discharging at a ``site'' for which it does not have a permit; and any offshore or coastal mobile oil and gas exploratory drilling rig or coastal mobile oil and gas developmental drilling rig that commences the discharge of pollutants after August 13, 1979, at a ``site'' under EPA's permitting jurisdiction for which it is not covered by an individual or general permit and which is located in an area determined by the Regional Administrator in the issuance of a final permit to be an area or biological concern. In determining whether an area is an area of biological concern, the Regional Administrator shall consider the factors specified in 40 CFR 125.122(a) (1) through (10). An offshore or coastal mobile exploratory drilling rig or coastal mobile developmental drilling rig will be considered a ``new discharger'' only for the duration of its discharge in an area of biological concern. New source means any building, structure, facility, or installation from which there is or may be a ``discharge of pollutants,'' the construction of which commenced: (a) After promulgation of standards of performance under section 306 of CWA which are applicable to such source, or (b) After proposal of standards of performance in accordance with section 306 of CWA which are applicable to such source, but only if the standards are promulgated in accordance with [[Page 129]] section 306 within 120 days of their proposal. NPDES means ``National Pollutant Discharge Elimination System.'' Owner or operator means the owner or operator of any ``facility or activity'' subject to regulation under the NPDES program. Permit means an authorization, license, or equivalent control document issued by EPA or an ``approved State'' to implement the requirements of this part and parts 123 and 124. ``Permit'' includes an NPDES ``general permit'' (Sec. 122.28). Permit does not include any permit which has not yet been the subject of final agency action, such as a ``draft permit'' or a ``proposed permit.'' Person means an individual, association, partnership, corporation, municipality, State or Federal agency, or an agent or employee thereof. Point source means any discernible, confined, and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged. This term does not include return flows from irrigated agriculture or agricultural storm water runoff. (See Sec. 122.3). Pollutant means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water. It does not mean: (a) Sewage from vessels; or (b) Water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil and gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if the State determines that the injection or disposal will not result in the degradation of ground or surface water resources. Note: Radioactive materials covered by the Atomic Energy Act are those encompassed in its definition of source, byproduct, or special nuclear materials. Examples of materials not covered include radium and accelerator-produced isotopes. See Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1 (1976). POTW is defined at Sec. 403.3 of this chapter. Primary industry category means any industry category listed in the NRDC settlement agreement (Natural Resources Defense Council et al. v. Train, 8 E.R.C. 2120 (D.D.C. 1976), modified 12 E.R.C. 1833 (D.D.C. 1979)); also listed in appendix A of part 122. Privately owned treatment works means any device or system which is (a) used to treat wastes from any facility whose operator is not the operator of the treatment works and (b) not a ``POTW.'' Process wastewater means any water which, during manufacturing or processing, comes into direct contact with or results from the production or use of any raw material, intermediate product, finished product, byproduct, or waste product. Proposed permit means a State NPDES ``permit'' prepared after the close of the public comment period (and, when applicable, any public hearing and administrative appeals) which is sent to EPA for review before final issuance by the State. A ``proposed permit'' is not a ``draft permit.'' Publicly owned treatment works is defined at 40 CFR 403.3. Recommencing discharger means a source which recommences discharge after terminating operations. Regional Administrator means the Regional Administrator of the appropriate Regional Office of the Environmental Protection Agency or the authorized representative of the Regional Administrator. Schedule of compliance means a schedule of remedial measures included in a ``permit'', including an enforceable sequence of interim requirements (for example, actions, operations, or milestone events) leading to compliance with the CWA and regulations. [[Page 130]] Secondary industry category means any industry category which is not a ``primary industry category.'' Secretary means the Secretary of the Army, acting through the Chief of Engineers. Septage means the liquid and solid material pumped from a septic tank, cesspool, or similar domestic sewage treatment system, or a holding tank when the system is cleaned or maintained. Sewage from vessels means human body wastes and the wastes from toilets and other receptacles intended to receive or retain body wastes that are discharged from vessels and regulated under section 312 of CWA, except that with respect to commercial vessels on the Great Lakes this term includes graywater. For the purposes of this definition, ``graywater'' means galley, bath, and shower water. Sewage Sludge means any solid, semi-solid, or liquid residue removed during the treatment of municipal waste water or domestic sewage. Sewage sludge includes, but is not limited to, solids removed during primary, secondary, or advanced waste water treatment, scum, septage, portable toilet pumpings, type III marine sanitation device pumpings (33 CFR part 159), and sewage sludge products. Sewage sludge does not include grit or screenings, or ash generated during the incineration of sewage sludge. Sewage sludge use or disposal practice means the collection, storage, treatment, transportation, processing, monitoring, use, or disposal of sewage sludge. Silvicultural point source is defined at Sec. 122.27. Site means the land or water area where any ``facility or activity'' is physically located or conducted, including adjacent land used in connection with the facility or activity. Sludge-only facility means any ``treatment works treating domestic sewage'' whose methods of sewage sludge use or disposal are subject to regulations promulgated pursuant to section 405(d) of the CWA and is required to obtain a permit under Sec. 122.1(b)(2). Standards for sewage sludge use or disposal means the regulations promulgated pursuant to section 405(d) of the CWA which govern minimum requirements for sludge quality, management practices, and monitoring and reporting applicable to sewage sludge or the use or disposal of sewage sludge by any person. State means any of the 50 States, the District of Columbia, Guam, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, the Trust Territory of the Pacific Islands, or an Indian Tribe as defined in these regulations which meets the requirements of Sec. 123.31 of this chapter. State Director means the chief administrative officer of any State or interstate agency operating an ``approved program,'' or the delegated representative of the State Director. If responsibility is divided among two or more State or interstate agencies, ``State Director'' means the chief administrative officer of the State or interstate agency authorized to perform the particular procedure or function to which reference is made. State/EPA Agreement means an agreement between the Regional Administrator and the State which coordinates EPA and State activities, responsibilities and programs including those under the CWA programs. Storm water is defined at Sec. 122.26(b)(13). Storm water discharge associated with industrial activity is defined at Sec. 122.26(b)(14). Total dissolved solids means the total dissolved (filterable) solids as determined by use of the method specified in 40 CFR part 136. Toxic pollutant means any pollutant listed as toxic under section 307(a)(1) or, in the case of ``sludge use or disposal practices,'' any pollutant identified in regulations implementing section 405(d) of the CWA. Treatment works treating domestic sewage means a POTW or any other sewage sludge or waste water treatment devices or systems, regardless of ownership (including federal facilities), used in the storage, treatment, recycling, and reclamation of municipal or domestic sewage, including land dedicated for the disposal of sewage sludge. [[Page 131]] This definition does not include septic tanks or similar devices. For purposes of this definition, ``domestic sewage'' includes waste and waste water from humans or household operations that are discharged to or otherwise enter a treatment works. In States where there is no approved State sludge management program under section 405(f) of the CWA, the Regional Administrator may designate any person subject to the standards for sewage sludge use and disposal in 40 CFR part 503 as a ``treatment works treating domestic sewage,'' where he or she finds that there is a potential for adverse effects on public health and the environment from poor sludge quality or poor sludge handling, use or disposal practices, or where he or she finds that such designation is necessary to ensure that such person is in compliance with 40 CFR part 503. TWTDS means ``treatment works treating domestic sewage.'' Upset is defined at Sec. 122.41(n). Variance means any mechanism or provision under section 301 or 316 of CWA or under 40 CFR part 125, or in the applicable ``effluent limitations guidelines'' which allows modification to or waiver of the generally applicable effluent limitation requirements or time deadlines of CWA. This includes provisions which allow the establishment of alternative limitations based on fundamentally different factors or on sections 301(c), 301(g), 301(h), 301(i), or 316(a) of CWA. Waters of the United States or waters of the U.S. means: (a) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (b) All interstate waters, including interstate ``wetlands;'' (c) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, ``wetlands,'' sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters: (1) Which are or could be used by interstate or foreign travelers for recreational or other purposes; (2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or (3) Which are used or could be used for industrial purposes by industries in interstate commerce; (d) All impoundments of waters otherwise defined as waters of the United States under this definition; (e) Tributaries of waters identified in paragraphs (a) through (d) of this definition; (f) The territorial sea; and (g) ``Wetlands'' adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) through (f) of this definition. Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United States. [See Note 1 of this section.] Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA. Wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. Whole effluent toxicity means the aggregate toxic effect of an effluent measured directly by a toxicity test. Note: At 45 FR 48620, July 21, 1980, the Environmental Protection Agency suspended until further notice in Sec. 122.2, the last sentence, beginning ``This exclusion applies [[Page 132]] . . .'' in the definition of ``Waters of the United States.'' This revision continues that suspension.\1\ --------------------------------------------------------------------------- \1\ Editorial Note: The words ``This revision'' refer to the document published at 48 FR 14153, Apr. 1, 1983. (Clean Water Act (33 U.S.C. 1251 et seq.), Safe Drinking Water Act (42 U.S.C. 300f et seq.), Clean Air Act (42 U.S.C. 7401 et seq.), Resource --------------------------------------------------------------------------- Conservation and Recovery Act (42 U.S.C. 6901 et seq.)) [48 FR 14153, Apr. 1, 1983, as amended at 48 FR 39619, Sept. 1, 1983; 50 FR 6940, 6941, Feb. 19, 1985; 54 FR 254, Jan. 4, 1989; 54 FR 18781, May 2, 1989; 54 FR 23895, June 2, 1989; 58 FR 45039, Aug. 25, 1993; 58 FR 67980, Dec. 22, 1993; 64 FR 42462, Aug. 4, 1999; 65 FR 30905, May 15, 2000]