[Code of Federal Regulations]
[Title 40, Volume 19]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR122.41]

[Page 210-215]
 
                   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 C--Permit Conditions
 
Sec. 122.41  Conditions applicable to all permits (applicable to State 
programs, see Sec. 123.25).


    The following conditions apply to all NPDES permits. Additional 
conditions applicable to NPDES permits are in Sec. 122.42. All 
conditions applicable to NPDES permits shall be incorporated into the 
permits either expressly or by reference. If incorporated by reference, 
a specific citation to these regulations (or the corresponding approved 
State regulations) must be given in the permit.
    (a) 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.
    (1) The permittee shall comply with effluent standards or 
prohibitions established under section 307(a) of the Clean Water Act for 
toxic pollutants and with standards for sewage sludge use or disposal 
established under section 405(d) of the CWA within the time provided in 
the regulations that establish these standards or prohibitions or

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standards for sewage sludge use or disposal, even if the permit has not 
yet been modified to incorporate the requirement.
    (2) The Clean Water Act provides that any person who violates 
section 301, 302, 306, 307, 308, 318 or 405 of the Act, or any permit 
condition or limitation implementing any such sections in a permit 
issued under section 402, or any requirement imposed in a pretreatment 
program approved under sections 402(a)(3) or 402(b)(8) of the Act, is 
subject to a civil penalty not to exceed $25,000 per day for each 
violation. The Clean Water Act provides that any person who negligently 
violates sections 301, 302, 306, 307, 308, 318, or 405 of the Act, or 
any condition or limitation implementing any of such sections in a 
permit issued under section 402 of the Act, or any requirement imposed 
in a pretreatment program approved under section 402(a)(3) or 402(b)(8) 
of the Act, is subject to criminal penalties of $2,500 to $25,000 per 
day of violation, or imprisonment of not more than 1 year, or both. In 
the case of a second or subsequent conviction for a negligent violation, 
a person shall be subject to criminal penalties of not more than $50,000 
per day of violation, or by imprisonment of not more than 2 years, or 
both. Any person who knowingly violates such sections, or such 
conditions or limitations is subject to criminal penalties of $5,000 to 
$50,000 per day of violation, or imprisonment for not more than 3 years, 
or both. In the case of a second or subsequent conviction for a knowing 
violation, a person shall be subject to criminal penalties of not more 
than $100,000 per day of violation, or imprisonment of not more than 6 
years, or both. Any person who knowingly violates section 301, 302, 303, 
306, 307, 308, 318 or 405 of the Act, or any permit condition or 
limitation implementing any of such sections in a permit issued under 
section 402 of the Act, and who knows at that time that he thereby 
places another person in imminent danger of death or serious bodily 
injury, shall, upon conviction, be subject to a fine of not more than 
$250,000 or imprisonment of not more than 15 years, or both. In the case 
of a second or subsequent conviction for a knowing endangerment 
violation, a person shall be subject to a fine of not more than $500,000 
or by imprisonment of not more than 30 years, or both. An organization, 
as defined in section 309(c)(3)(B)(iii) of the CWA, shall, upon 
conviction of violating the imminent danger provision, be subject to a 
fine of not more than $1,000,000 and can be fined up to $2,000,000 for 
second or subsequent convictions.
    (3) Any person may be assessed an administrative penalty by the 
Administrator for violating section 301, 302, 306, 307, 308, 318 or 405 
of this Act, or any permit condition or limitation implementing any of 
such sections in a permit issued under section 402 of this Act. 
Administrative penalties for Class I violations are not to exceed 
$10,000 per violation, with the maximum amount of any Class I penalty 
assessed not to exceed $25,000. Penalties for Class II violations are 
not to exceed $10,000 per day for each day during which the violation 
continues, with the maximum amount of any Class II penalty not to exceed 
$125,000.
    (b) Duty to reapply. If the permittee wishes to continue an activity 
regulated by this permit after the expiration date of this permit, the 
permittee must apply for and obtain a new permit.
    (c) 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.
    (d) Duty to mitigate. The permittee shall take all reasonable steps 
to minimize or prevent any discharge or sludge use or disposal in 
violation of this permit which has a reasonable likelihood of adversely 
affecting human health or the environment.
    (e) 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-

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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.
    (f) 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.
    (g) Property rights. This permit does not convey any property rights 
of any sort, or any exclusive privilege.
    (h) 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.
    (i) Inspection and entry. The permittee shall allow the Director, or 
an authorized representative (including an authorized contractor acting 
as a representative of the Administrator), upon presentation of 
credentials and other documents as may be required by law, to:
    (1) 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;
    (2) Have access to and copy, at reasonable times, any records that 
must be kept under the conditions of this permit;
    (3) Inspect at reasonable times any facilities, equipment (including 
monitoring and control equipment), practices, or operations regulated or 
required under this permit; and
    (4) Sample or monitor at reasonable times, for the purposes of 
assuring permit compliance or as otherwise authorized by the Clean Water 
Act, any substances or parameters at any location.
    (j) Monitoring and records. (1) Samples and measurements taken for 
the purpose of monitoring shall be representative of the monitored 
activity.
    (2) Except for records of monitoring information required by this 
permit related to the permittee's sewage sludge use and disposal 
activities, which shall be retained for a period of at least five years 
(or longer as required by 40 CFR part 503), the permittee shall retain 
records of all monitoring information, including all calibration and 
maintenance records and all original strip chart recordings for 
continuous monitoring instrumentation, 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 3 years from the date of the 
sample, measurement, report or application. This period may be extended 
by request of the Director at any time.
    (3) Records of monitoring information shall include:
    (i) The date, exact place, and time of sampling or measurements;
    (ii) The individual(s) who performed the sampling or measurements;
    (iii) The date(s) analyses were performed;
    (iv) The individual(s) who performed the analyses;
    (v) The analytical techniques or methods used; and
    (vi) The results of such analyses.
    (4) Monitoring results must be conducted according to test 
procedures approved under 40 CFR part 136 or, in the case of sludge use 
or disposal, approved under 40 CFR part 136 unless otherwise specified 
in 40 CFR part 503, unless other test procedures have been specified in 
the permit.
    (5) The Clean Water Act provides that any person who falsifies, 
tampers with, or knowingly renders inaccurate any monitoring device or 
method required to be maintained under this permit shall, upon 
conviction, be punished by a fine of not more than $10,000, or by 
imprisonment for not more than 2 years, or both. If a conviction of a 
person is for a violation committed after a first conviction of such 
person under this paragraph, punishment is a fine of not more than 
$20,000 per day of violation, or by imprisonment of not more than 4 
years, or both.
    (k) Signatory requirement. (1) All applications, reports, or 
information submitted to the Director shall be signed and certified. 
(See Sec. 122.22)

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    (2) 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, 
including monitoring reports or reports of compliance or non-compliance 
shall, upon conviction, be punished by a fine of not more than $10,000 
per violation, or by imprisonment for not more than 6 months per 
violation, or by both.
    (l) Reporting requirements. (1) 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. Notice is required 
only when:
    (i) The alteration or addition to a permitted facility may meet one 
of the criteria for determining whether a facility is a new source in 
Sec. 122.29(b); or
    (ii) The alteration or addition could significantly change the 
nature or increase the quantity of pollutants discharged. This 
notification applies to pollutants which are subject neither to effluent 
limitations in the permit, nor to notification requirements under 
Sec. 122.42(a)(1).
    (iii) The alteration or addition results in a significant change in 
the permittee's sludge use or disposal practices, and such alteration, 
addition, or change may justify the application of permit conditions 
that are different from or absent in the existing permit, including 
notification of additional use or disposal sites not reported during the 
permit application process or not reported pursuant to an approved land 
application plan;
    (2) 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.
    (3) Transfers. 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 Clean Water Act. (See Sec. 122.61; in some cases, modification 
or revocation and reissuance is mandatory.)
    (4) Monitoring reports. Monitoring results shall be reported at the 
intervals specified elsewhere in this permit.
    (i) Monitoring results must be reported on a Discharge Monitoring 
Report (DMR) or forms provided or specified by the Director for 
reporting results of monitoring of sludge use or disposal practices.
    (ii) If the permittee monitors any pollutant more frequently than 
required by the permit using test procedures approved under 40 CFR part 
136 or, in the case of sludge use or disposal, approved under 40 CFR 
part 136 unless otherwise specified in 40 CFR part 503, or as specified 
in the permit, the results of this monitoring shall be included in the 
calculation and reporting of the data submitted in the DMR or sludge 
reporting form specified by the Director.
    (iii) Calculations for all limitations which require averaging of 
measurements shall utilize an arithmetic mean unless otherwise specified 
by the Director in the permit.
    (5) Compliance schedules. Reports of compliance or noncompliance 
with, or any progress reports on, interim and final requirements 
contained in any compliance schedule of this permit shall be submitted 
no later than 14 days following each schedule date.
    (6) Twenty-four hour reporting. (i) The permittee shall report any 
noncompliance which may endanger health or the environment. Any 
information shall be provided orally within 24 hours from the time the 
permittee becomes aware of the circumstances. A written submission shall 
also be provided within 5 days of the time the permittee becomes aware 
of the circumstances. The written submission shall contain a description 
of the noncompliance and its cause; the period of noncompliance, 
including exact dates and times, and if the noncompliance has not been 
corrected, the anticipated time it is expected to continue; and steps 
taken or planned to reduce, eliminate, and prevent reoccurrence of the 
noncompliance.
    (ii) The following shall be included as information which must be 
reported within 24 hours under this paragraph.

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    (A) Any unanticipated bypass which exceeds any effluent limitation 
in the permit. (See Sec. 122.41(g).
    (B) Any upset which exceeds any effluent limitation in the permit.
    (C) Violation of a maximum daily discharge limitation for any of the 
pollutants listed by the Director in the permit to be reported within 24 
hours. (See Sec. 122.44(g).)
    (iii) The Director may waive the written report on a case-by-case 
basis for reports under paragraph (l)(6)(ii) of this section if the oral 
report has been received within 24 hours.
    (7) Other noncompliance. The permittee shall report all instances of 
noncompliance not reported under paragraphs (l) (4), (5), and (6) of 
this section, at the time monitoring reports are submitted. The reports 
shall contain the information listed in paragraph (l)(6) of this 
section.
    (8) 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.
    (m) Bypass--(1) Definitions. (i) Bypass means the intentional 
diversion of waste streams from any portion of a treatment facility.
    (ii) Severe property damage means substantial physical damage to 
property, damage to the treatment facilities which causes them to become 
inoperable, or substantial and permanent loss of natural resources which 
can reasonably be expected to occur in the absence of a bypass. Severe 
property damage does not mean economic loss caused by delays in 
production.
    (2) Bypass not exceeding limitations. The permittee may allow any 
bypass to occur which does not cause effluent limitations to be 
exceeded, but only if it also is for essential maintenance to assure 
efficient operation. These bypasses are not subject to the provisions of 
paragraphs (m)(3) and (m)(4) of this section.
    (3) Notice--(i) Anticipated bypass. If the permittee knows in 
advance of the need for a bypass, it shall submit prior notice, if 
possible at least ten days before the date of the bypass.
    (ii) Unanticipated bypass. The permittee shall submit notice of an 
unanticipated bypass as required in paragraph (l)(6) of this section 
(24-hour notice).
    (4) Prohibition of bypass. (i) Bypass is prohibited, and the 
Director may take enforcement action against a permittee for bypass, 
unless:
    (A) Bypass was unavoidable to prevent loss of life, personal injury, 
or severe property damage;
    (B) There were no feasible alternatives to the bypass, such as the 
use of auxiliary treatment facilities, retention of untreated wastes, or 
maintenance during normal periods of equipment downtime. This condition 
is not satisfied if adequate back-up equipment should have been 
installed in the exercise of reasonable engineering judgment to prevent 
a bypass which occurred during normal periods of equipment downtime or 
preventive maintenance; and
    (C) The permittee submitted notices as required under paragraph 
(m)(3) of this section.
    (ii) The Director may approve an anticipated bypass, after 
considering its adverse effects, if the Director determines that it will 
meet the three conditions listed above in paragraph (m)(4)(i) of this 
section.
    (n) Upset--(1) Definition. Upset means an exceptional incident in 
which there is unintentional and temporary noncompliance with technology 
based permit effluent limitations because of factors beyond the 
reasonable control of the permittee. An upset does not include 
noncompliance to the extent caused by operational error, improperly 
designed treatment facilities, inadequate treatment facilities, lack of 
preventive maintenance, or careless or improper operation.
    (2) Effect of an upset. An upset constitutes an affirmative defense 
to an action brought for noncompliance with such technology based permit 
effluent limitations if the requirements of paragraph (n)(3) of this 
section are met. No determination made during administrative review of 
claims that noncompliance was caused by upset, and before an action for 
noncompliance, is final administrative action subject to judicial 
review.

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    (3) Conditions necessary for a demonstration of upset. A permittee 
who wishes to establish the affirmative defense of upset shall 
demonstrate, through properly signed, contemporaneous operating logs, or 
other relevant evidence that:
    (i) An upset occurred and that the permittee can identify the 
cause(s) of the upset;
    (ii) The permitted facility was at the time being properly operated; 
and
    (iii) The permittee submitted notice of the upset as required in 
paragraph (1)(6)(ii)(B) of this section (24 hour notice).
    (iv) The permittee complied with any remedial measures required 
under paragraph (d) of this section.
    (4) Burden of proof. In any enforcement proceeding the permittee 
seeking to establish the occurrence of an upset has the burden of proof.

(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 39620, Sept. 1, 1983; 49 
FR 38049, Sept. 26, 1984; 50 FR 4514, Jan. 31, 1985; 50 FR 6940, Feb. 
19, 1985; 54 FR 255, Jan. 4, 1989; 54 FR 18783, May 2, 1989; 65 FR 
30908, May 15, 2000]