NPDES Program Effective in Maine

The authorization of Maine to operate the National Pollutant Discharge Elimination System (NPDES) program was effective on January 12, 2001. As of that date, the State became the primary NPDES authority and point of contact for most wastewater discharge sources in Maine. EPA did not make a decision about authorization for those parts of the State where there are concerns about the jurisdiction of Indian tribes. These areas include the Penobscot River and its tributaries north of Indian Island and lands held by the Pasamaquaoddy and Micmac Tribes. EPA intends to consult with the Department of Justice before it makes a decision about authorization in these areas.

This paper is intended to address some of the issues and program changes associated with authorization of the NPDES program and answers some questions about how the transition will effect specific programs and individual permits.

In General

Essentially, the delegated NPDES program represents a partnership between the State and EPA, with the State taking the lead in most areas of the NPDES program. While the State will take the lead in administering the Clean Water Act in Maine, EPA remains responsible for assuring that the intent of the Act is met in all states, and retains independent authority to enforce its requirements. Much of the transition and future program responsibilities are covered in the Memorandum of Agreement that is part of the State's application for authorization. Certain parts of EPA regulations also address these issues. In practice, the DEP anticipates working closely with EPA staff in Boston on a day to day basis to implement various program elements and requirements. As part of the transition, EPA will retain formal jurisdiction for some pending permit applications and will provide DEP with help and support in other areas, such as pretreatment and storm water (see below).

Under the Memorandum of Agreement, EPA will retain permit issuance for those permit applications that were at EPA's public notice stage at the time of authorization. As EPA prepares final drafts of those permits it intends to issue, copies will be sent to DEP for formal certification as has been done in the past. In some cases, EPA may choose to not issue a final permit, but instead provide DEP with its draft and supporting materials, allowing the State to issue the final permit. State issued permits under the NPDES program will be known as MEPDES or Maine Pollutant Discharge Elimination System permits.

The Program Description included in the application for authorization explains how the State intends to operate the MEPDES program.

EPA's Future Role

In Maine, as in all delegated states, EPA will retain a role to assure that state actions meet the requirements of the Clean Water Act. This will include review of draft permits prepared by the state, general oversight of program requirements and performance, and review of proposed changes to state laws and rules related to the NPDES program. EPA will also continue to review permit and schedule compliance and may initiate it own compliance actions to supplement state activities.

One area of particular interest is how EPA will review draft permits. Under the Memorandum of Agreement and federal regulations, EPA must be provided with an opportunity to review draft permits prepared by the DEP to assure they are in compliance with the Clean Water Act and will fully protect water quality and uses under the Act. EPA may object to a draft State MEPDES permit as provided for in 40 C.F.R. § 123.44. In most cases, EPA and the State will be able to resolve issues informally; however, a formal EPA objection prevents issuance of the permit by the State until the issue is resolved. If a public hearing is held and the State and EPA cannot resolve the issue, the sole right to issue that permit passes to EPA 30 days after EPA notifies the State following the hearing. If no public hearing is held and the State and EPA cannot resolve the issue, the sole right to issue that permit passes to EPA 90 days from the State’s receipt to EPA’s objection.

Status of EPA Issued Permits

Most discharge sources to surface waters of the State have both State discharge licenses from DEP and NPDES permits from EPA. (The State requires licenses for discharge to ground water, although EPA does not.) With the transition to state permit issuance authority, previous EPA issued permits will be phased out. As the State takes a permitting action, it will create a MEPDES permit that supercedes the EPA permit. EPA permits valid on the effective date of authorization will remain in effect until they expire of are superceded by a State permit.

Q. Does an EPA issued permit that is current (not expired) continue in force after the Maine NPDES program is approved?

A. Yes. The permit will remain in effect until its expiration date or until it is superseded by a MEPDES permit and terminated by the EPA. EPA will continue to administer their permits, including processing of modification requests.

Q. If the EPA permit is expired at the time the Maine NPDES program is approved, does the NPDES permit stay in effect if EPA had deemed a renewal application complete and had administratively continued the permit prior to the approval?

A. Yes. If a federal NPDES permit expires before the date of State program approval, but has been continued in force under EPA administrative rules, it will continue in force even after the date of State program approval, until it is superseded by a MEPDES permit or terminated by the EPA. Federal NPDES permits which have already been continued in force and thus are in effect at the time of State program approval should be treated similarly to other federal permits in effect at the time of State program approval (i.e., those that have not yet expired). All such permits should continue to be administered and enforced by the EPA.

Q. If the EPA permit is expired at the time the Maine NPDES program is approved, does the NPDES permit stay in effect if an application for renewal had not been submitted prior to the approval?

A. No. If a permittee does not submit a timely and complete application, to EPA prior to the time of State program approval, the permit would not be extended under federal law even prior to the time of State program approval and thus would not be extended under federal law after the time of State program approval. (However, a previously issued State license will remain in effect.)

Q. May the State revoke and reissue a current EPA issued NPDES permit as a MEPDES permit after state program approval?

A. No. However, EPA, the State and the permittee could agree that the federal NPDES permit should be terminated and replaced by a State MEPDES permit. The EPA would terminate the federal permit and the State would issue the new permit.

Q. If Maine has some state licenses that are in the process of being renewed (but not yet issued) at the time of NPDES program approval, is there any way they can be issued as MEPDES permits?

A. Yes. These state licenses can be issued as MEPDES permits if the State follows the federally required public notice procedures contained in the State’s MEPDES regulations (this may require another notice and sending copies of drafts to additional entities with appropriate time for comment) and the permits must have all the required federal NPDES conditions.

Q. May the State modify a current EPA issued NPDES permit?

A. No. The State will not be able to modify EPA issued permits. However, the EPA will be able to modify these permits in the course of administering them. Also, the Memorandum of Agreement gives the State the option of modifying a State license so as to make it into a MEPDES permit. If the State follows the federally required public notice procedures and the permit as modified includes all federal requirements, it could supersede the federally issued permit. The EPA and permittee would need to agree to the termination of the EPA permit.

Q. What becomes of the State WDL after state program approval?

A. Maine Waste Discharge licenses are not affected by NPDES program approval. They will continue independently under State law until they are superseded by a MEPDES permit.

Q. Does the issuance of a State MEPDES permit supersede a previous discharge license?

A. Yes. MEDEP will replace the existing WDL for a facility with an MEPDES permit when issued.

Q. If both the EPA NPDES permit and State discharge license are current at the time of state program approval, do both remain in effect post approval?

A. Yes. They both remain in effect and operate under independent State and Federal authorities.

The Storm Water Program

As part of authorization, Maine is taking over administration of EPA's storm water program. Currently, the program regulates discharges of storm water to surface waters from certain construction and industrial activities. Each of these major areas is addressed by a current general permit issued by EPA that will provide continuing coverage until superceded by the issuance of a MEPDES permit. A second phase of storm water permitting requirements to cover additional (smaller) construction activities and some urbanized areas has been promulgated by EPA, with compliance schedules. Maine has regulated some aspects of storm water under the Maine Storm Water Management Law since 1997, and will be looking to build upon the existing program where possible, and remove duplication. Until Maine develops its own MEPDES storm water program, persons needing coverage should continue to work directly with EPA in Boston to file Notices of Intent for coverage, file monitoring reports, or seek information about EPA's general permits. DEP will be working closely with EPA in development of the State program and will be sharing lists of those persons covered by EPA to make the transition to a State general permits as smooth as possible. Information from Maine DEP Stormwater Program