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EPA's Region 6 Office

Serving: Arkansas, Louisiana, New Mexico, Oklahoma, Texas, and 66 Tribal Nations

New Source Determinations-NPDES Permits

The New Source Determination (NSD) establishes whether or not proposed construction is subject to environmental assessment under the National Environmental Policy Act of 1969, as amended (NEPA). These regulations and definitions are found in Sections 306 and 511(c) of the CWA and 40 CFR Parts 6, 122.2, and 122.29.

The National Pollutant Discharge Elimination System (NPDES) permit program regulates stormwater discharges into waters of the United States. Originally, the NPDES program focused on publicly owned treatment works (POTWs) (wastewater treatment plants) and industrial wastewater. However, Section 405 of the Water Quality Act of 1987 (WQA) added section 402(p) of the Clean Water Act (CWA), which directed the EPA to develop a phased approach to regulate stormwater discharges for industrial activities. EPA published a final regulation on the first phase on this program on November 16, 1990, establishing permit application requirements for “stormwater discharges associated with industrial activity.” This permit is called the Multi-Sector General Permit (MSGP) for Stormwater Discharges Associated with Industrial Sources. The MSGP requires industrial facilities to implement and maintain site-specific stormwater control measures and to develop stormwater pollution prevention plans (SWPPP). The MSGP regulates the discharge of stormwater from an estimated 4,100 industrial facilities in 29 different industrial sectors.

40 CFR Section 122.2 defines a new source as “any building, structure, facility, or installation from which there is or may be a discharge of pollutants, the construction of which commenced: (a) after the promulgation of standards of performance under Section 306 of the CWA which are applicable new source performance standards (NSPS), or (b) after the proposal of NSPS in accordance with Section 306 of the CWA which are applicable to such source, but only if the standards are promulgated in accordance with Section 306 within 120 days of their proposal.” Applicants for NPDES permits covering new or expanded industrial project construction must submit information on the proposed construction. The information must describe the proposed or expanded process and its relationship to the existing facilities. The EPA will use the information to determine if NSPS apply to the new construction.

Some industrial activities are afforded special attention under the NPDES program within Region 6. Under the MSGP category of Oil and Gas Extraction, three sub-categories meet this criteria. The General Permit for Oil and Gas Extraction for the Western Portion of the Outer Continental Shelf of the Gulf of Mexico authorizes discharges from exploration, development, and production facilities located in and discharging to Federal waters of the Gulf of Mexico seaward of the outer boundary of the territorial seas offshore of Louisiana and Texas.

The General Permit for Oil and Gas Extraction Point Source Category to the Territorial Seas off Texas authorizes discharges to the territorial seas off Texas in accordance with effluent limitations, monitoring requirements, and other conditions.

The General Permit for Discharges from the Oil and Gas Extraction Point Source Category to Coastal Waters in Texas regulates produced water discharges from wells in the Stripper and Offshore Subcategories which discharge into coastal waters of Texas. Operators wishing to discharge into the locales described above must provide written notification of intent (NOI) to be covered under the General Permit prior to any discharge. These General Permits are reissued every five years and are subject to environmental assessment under NEPA. Additional information can be found here.

In 1976, EPA promulgated NPDES regulations to define the term “concentrated animal feeding operations” (CAFO).  In 1987, the CWA was amended to include Section 402(p), which regulates discharges composed entirely of stormwater, including stormwater discharges from certain CAFOs. The revised provision of 40 CFR 122.23(d) requires all CAFOs that discharge or propose to discharge to seek NPDES permit coverage. A Large CAFO is a new source if construction began after April 14, 2003, on a site where no other source is located. An operation may also be a new source if it expands its operations. Specifically, it would be a new source if the process or production equipment is totally replaced, or if it adds new processes that are substantially independent of an existing source at the same site. In most cases, only Large CAFOs may be new sources. As stated above, EPA would make a NSD, which would establish whether or not the proposed construction is subject to environmental assessment under NEPA and NSPS.

For more information, send inquires to John MacFarlane at macfarlane.john@epa.gov.

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