MEMORANDUM

TO:		Public Record for the NPDES Electronic Reporting Rule
		EPA Docket Number EPA-HQ-OECA-2009-0274 (www.regulations.gov)	

FROM:	Carey A. Johnston, P.E.
            USEPA/OECA/OC
            ph: (202) 566 1014
            johnston.carey@epa.gov

DATE:		18 June 2015

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SUBJECT: 	Description of Major Facility in the NPDES Program [DCN 0195]
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I. 	Regulatory Definition and Universe

      EPA's NPDES regulations at 40 CFR 122.2 broadly define a "major facility" as: 

      "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."
      
      EPA further defined "major facility" in guidance and policy developed in the mid-1980s.  For industrial facilities, EPA developed a permit rating worksheet used by permit writers to assist with classification of a facility as a major or nonmajor (a.k.a. "minor").  See Appendix 1. Worksheets were developed to guide this process. Industrial facilities that scored 80 points or higher using the worksheet were classified as major facilities. POTWS with 1 million gallons of flow per day or greater and POTWs serving a population of 10,000 or greater were also classified as major facilities.  Lastly, the Director can also designate facilities as major facilities independent of the worksheet. The number of NPDES major facilities is approximately 6,700. This is less than 5% of the point sources currently regulated under the Clean Water Act.
      
      As discussed in sections II, III, and IV below, EPA's uses the definition of a major facility in a number of aspects in the NPDES permitting, compliance monitoring and reporting, data entry, and enforcement programs.

II.  	Focus on Majors: NPDES Permitting

      The designation of "major" for a facility or activity does not affect the regulatory requirements for the terms or conditions of an NPDES permit.  However, EPA regulations do establish some differences in the documentation and detail required in the administrative process for preparing the draft and final permit.

Fact Sheets:  EPA's regulations at 40 CFR 124.8(a) require that a "fact sheet" be prepared for every draft permit for a major NPDES facility or activity.  For nonmajor facilities or activities, 40 CFR 124.7 requires EPA to prepare a "statement of basis" (a less detailed summary of permit decisions) with the draft permit.  State permitting authorities are not required to prepare a fact sheet or statement of basis for nonmajor facilities or activities; however, in practice, nearly all states prepare either a fact sheet or statement of basis for all draft permits.
      
Opportunity for Regional Review of Draft or Proposed Permits:  EPA regulations at 40 CFR 123.24(d) require that the Memorandum of Agreement between EPA and a state authorized to administer the NPDES program "shall specify the extent to which EPA will waive its right to review, object to, or comment upon state issued permits....." however, "no waiver of review may be granted for........ (6) Discharges from any major discharger or from any of the 21 industrial categories listed in appendix A to part 122."  Effectively, all draft or proposed permits for major facilities or activities prepared by authorized states must be provided to the EPA Region for review.  However, the Region has no regulatory obligation to review the draft for proposed permits, and each Region determines which permits to review and the appropriate level of review based on Regional resources and priorities.  Regions typically waive the right to review most nonmajor permits.
      
Public Notice:  EPA regulations at 40 CFR 124.10(c)(2)(i) require that the "method" of public notice include "for major permits, ......publication of a notice in a daily or weekly newspaper within the area affected by the facility or activity."  This method of notice is in addition to the other forms of notice (e.g., direct mailing) required for all draft NPDES permits.
      
Application for a Permit:  EPA regulations at 40 CFR 124.3(g) require that for each application to EPA for an NPDES new source, or a "major" NPDES new discharger, the Regional Administrator shall, no later than the effective date of the application, prepare and mail to the applicant, a project decision schedule [details provided].  This requirement applies only where EPA is the permitting authority.

III. 	Focus on Majors:  Compliance Monitoring, Reporting, and Data Entry

Inspections:  EPA regulations at 40 CFR 123.26(e)(5) require that state NPDES compliance evaluation programs have procedures and ability for inspecting all major dischargers at least annually.  EPA's program performance expectation for inspections was originally based on the percentage of majors the regulatory authority inspected annually.  In 1995, in recognition of the environmental impacts by nonmajors, EPA's Office of Enforcement and Compliance Assurance (OECA) issued guidance allow flexibility to shift some inspection resources from "lower risk majors to higher risk minors."  OECA's current inspection guidance, Compliance Monitoring Strategy, issued in 2014 sets the goal of inspecting majors on a 2 to 3 year cycle and nonmajors on a 5 year cycle.
      
Reporting:  The federal regulations at 40 CFR 123.45 require periodic reporting of noncompliance at major facilities  -  which includes the Quarterly Noncompliance Report (QNCR).  The regulations require public reporting and further classification of the severity of reportable noncompliance (RNC) violations into Category I and Category II.  
      
Data Entry:  EPA expects the regulatory authority to enter all facility location and outfall information, discharge monitoring report (DMR), inspection, and enforcement information for majors into EPA's national NPDES data system (ICIS-NPDES).  For nonmajors, EPA currently expects a limited subset of data (e.g., facility identification, limited DMR data, and inspections) to be entered into its national data system by states.

IV. 	Focus on Majors:  Enforcement Expectations

      Significant Noncompliance (SNC) is a non-regulatory management tool developed by EPA to identify a subset of the Categories I and II RNC violations reported on the QNCR that EPA believes merits special attention.  EPA's NPDES Enforcement Management System establishes the performance expectation of timely formal enforcement response by the regulatory authority when SNC violations are not corrected promptly by the permittee.  EPA has built management structures, tools and policies around the concept of "timely enforcement." The percentage rate of majors with SNC violations over time is used as an enforcement program performance measure by EPA.  Historically, the national SNC rate for majors has consistently averaged 20% to 24%.

                                  Appendix 1


Summary of Existing Non-Municipal Rating Criteria:

* Automatic "Major" Status for:
      o Large (>= 500 MW) steam electric power plants w/ once through cooling 
      o Nuclear power plants
      o Steam electric power plants with cooling water discharge > 25% of 7Q10
      o MS4s serving a population greater than 100,000

* Rating Factors for:
      o Presence of toxic pollutants  -  Points established using SIC code factors from table 
      o Wastewater flow or  Wastewater and stream flow  -  points based on either volume and type of effluent flow or volume and type of flow relative to receiving water flow
      o Mass of conventional pollutants discharged (BOD/COD; TSS; Nitrogen)
            # Note: nitrogen is not a "conventional pollutant"
      o If there is a public drinking water supply within 50 miles downstream of the discharge, additional points are assigned based on a human health toxicity rating.  Points established using SIC code factors from table (source unknown)
      o Water quality factors  -  points assigned if:
            # WQBEL or WLA developed for the permit, or
            # Discharge of impairing pollutant to impaired water, or
            # Discharge found to have RP for WET
      o Proximity to near coastal waters  -  points assigned based on a PCS HQ priority code 
            # Additional points for discharges to priority estuaries (NEP) and Chesapeake Bay.
            # Additional points for discharges to Great Lakes Areas of Concern.

* Discretionary Majors:
      o Rating sheet allows an EPA Region to designate any other facility (i.e., any facility scoring less than 80 points) as a "discretionary major."  However, the number of discretionary majors is "limited" to 50 facilities, or 10% of scored majors plus 40, whichever is higher.
            # The rating sheet provides an Appendix D with some suggested criteria for rating Coal Facilities (coal mines) as discretionary majors.

