[Title 40 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2010 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          40


          Parts 100 to 135

                         Revised as of July 1, 2010


          Protection of Environment
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2010
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 40:
          Chapter I--Environmental Protection Agency 
          (Continued)                                                3
  Finding Aids:
      Table of CFR Titles and Chapters........................     589
      Alphabetical List of Agencies Appearing in the CFR......     609
      List of CFR Sections Affected...........................     619

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 40 CFR 104.1 refers 
                       to title 40, part 104, 
                       section 1.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

    The contents of the Federal Register are required to be judicially 
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie 
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

    The Code of Federal Regulations is kept up to date by the individual 
issues of the Federal Register. These two publications must be used 
together to determine the latest version of any given rule.
    To determine whether a Code volume has been amended since its 
revision date (in this case, July 1, 2010), consult the ``List of CFR 
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
List of Parts Affected,'' which appears in the Reader Aids section of 
the daily Federal Register. These two lists will identify the Federal 
Register page number of the latest amendment of any given rule.

EFFECTIVE AND EXPIRATION DATES

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citations for the regulations are referred to by volume number and page 
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Code a note has been inserted to reflect the future effective date. In 
those instances where a regulation published in the Federal Register 
states a date certain for expiration, an appropriate note will be 
inserted following the text.

OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
amendments to existing regulations in the CFR. These OMB numbers are 
placed as close as possible to the applicable recordkeeping or reporting 
requirements.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
Federal Regulations. An agency may add regulatory information at a 
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used 
editorially to indicate that a portion of the CFR was left vacant and 
not accidentally dropped due to a printing or computer error.

INCORPORATION BY REFERENCE

    What is incorporation by reference? Incorporation by reference was 
established by statute and allows Federal agencies to meet the 
requirement to publish regulations in the Federal Register by referring 
to materials already published elsewhere. For an incorporation to be 
valid, the Director of the Federal Register must approve it. The legal 
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if it were published in full in the Federal Register (5 U.S.C. 552(a)). 
This material, like any other properly issued regulation, has the force 
of law.
    What is a proper incorporation by reference? The Director of the 
Federal Register will approve an incorporation by reference only when 
the requirements of 1 CFR part 51 are met. Some of the elements on which 
approval is based are:
    (a) The incorporation will substantially reduce the volume of 
material published in the Federal Register.
    (b) The matter incorporated is in fact available to the extent 
necessary to afford fairness and uniformity in the administrative 
process.
    (c) The incorporating document is drafted and submitted for 
publication in accordance with 1 CFR part 51.
    What if the material incorporated by reference cannot be found? If 
you have any problem locating or obtaining a copy of material listed as 
an approved incorporation by reference, please contact the agency that 
issued the regulation containing that incorporation. If, after 
contacting the agency, you find the material is not available, please 
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or call 202-741-6010.

CFR INDEXES AND TABULAR GUIDES

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separate volume, revised annually as of January 1, entitled CFR Index 
and Finding Aids. This volume contains the Parallel Table of Authorities 
and Rules. A list of CFR titles, chapters, subchapters, and parts and an 
alphabetical list of agencies publishing in the CFR are also included in 
this volume.
    An index to the text of ``Title 3--The President'' is carried within 
that volume.

[[Page vii]]

    The Federal Register Index is issued monthly in cumulative form. 
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the daily Federal Register.
    A List of CFR Sections Affected (LSA) is published monthly, keyed to 
the revision dates of the 50 CFR titles.

REPUBLICATION OF MATERIAL

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    July 1, 2010.







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                               THIS TITLE

    Title 40--Protection of Environment is composed of thirty-two 
volumes. The parts in these volumes are arranged in the following order: 
parts 1-49, parts 50-51, part 52 (52.01-52.1018), part 52 (52.1019-end 
of part 52), parts 53-59, part 60 (60.1-end of part 60, sections), part 
60 (Appendices), parts 61-62, part 63 (63.1-63.599), part 63 (63.600-
63.1199), part 63 (63.1200-63.1439), part 63 (63.1440-63.6175), part 63 
(63.6580-63.8830), part 63 (63.8980-end of part 63) parts 64-71, parts 
72-80, parts 81-84, part 85-Sec.  86.599-99, part 86 (86.600-1-end of 
part 86), parts 87-99, parts 100-135, parts 136-149, parts 150-189, 
parts 190-259, parts 260-265, parts 266-299, parts 300-399, parts 400-
424, parts 425-699, parts 700-789, parts 790-999, and part 1000 to end. 
The contents of these volumes represent all current regulations codified 
under this title of the CFR as of July 1, 2010.

    Chapter I--Environmental Protection Agency appears in all thirty-two 
volumes. Regulations issued by the Council on Environmental Quality, 
including an Index to Parts 1500 through 1508, appear in the volume 
containing part 1000 to end. The OMB control numbers for title 40 appear 
in Sec.  9.1 of this chapter.

    For this volume, Michele Bugenhagen was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


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                   TITLE 40--PROTECTION OF ENVIRONMENT




                  (This book contains parts 100 to 135)

  --------------------------------------------------------------------
                                                                    Part

chapter i--Environmental Protection Agency (Continued)......         104

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         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)




  --------------------------------------------------------------------


  Editorial Note: Nomenclature changes to chapter I appear at 65 FR 
47324, 47325, Aug. 2, 2000; 66 FR 34375, 34376, June 28, 2001.

                      SUBCHAPTER D--WATER PROGRAMS
Part                                                                Page
100-103         [Reserved]

104             Public hearings on effluent standards for 
                    toxic pollutants........................           5
105             Recognition awards under the Clean Water Act          11
108             Employee protection hearings................          14
109             Criteria for State, local and regional oil 
                    removal contingency plans...............          15
110             Discharge of oil............................          17
112             Oil pollution prevention....................          19
113             Liability limits for small onshore storage 
                    facilities..............................         133
116             Designation of hazardous substances.........         134
117             Determination of reportable quantities for 
                    hazardous substances....................         145
121             State certification of activities requiring 
                    a Federal license or permit.............         153
122             EPA administered permit programs: The 
                    national pollutant discharge elimination 
                    system..................................         158
123             State program requirements..................         273
124             Procedures for decisionmaking...............         301
125             Criteria and standards for the national 
                    pollutant discharge elimination system..         336
129             Toxic pollutant effluent standards..........         407
130             Water quality planning and management.......         417
131             Water quality standards.....................         432
132             Water quality guidance for the Great Lakes 
                    System..................................         515
133             Secondary treatment regulation..............         578
135             Prior notice of citizen suits...............         582

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                       SUBCHAPTER D_WATER PROGRAMS



                        PARTS 100-103 [RESERVED]



PART 104_PUBLIC HEARINGS ON EFFLUENT STANDARDS FOR TOXIC POLLUTANTS--Table of 

Contents



Sec.
104.1 Applicability.
104.2 Definitions.
104.3 Notice of hearing; objection; public comment.
104.4 Statement of basis and purpose.
104.5 Docket and record.
104.6 Designation of Presiding Officer.
104.7 Powers of Presiding Officer.
104.8 Prehearing conferences.
104.9 Admission of evidence.
104.10 Hearing procedures.
104.11 Briefs and findings of fact.
104.12 Certification of record.
104.13 Interlocutory and post-hearing review of rulings of the Presiding 
          Officer; motions.
104.14 Tentative and final decision by the Administrator.
104.15 Promulgation of standards.
104.16 Filing and time.

    Authority: Secs. 501 and 307(a) of the Federal Water Pollution 
Control Act, as amended (33 U.S.C. 1251 et seq., Pub. L. 92-500, 86 
Stat. 816).

    Source: 41 FR 17902, Apr. 29, 1976, unless otherwise noted.



Sec. 104.1  Applicability.

    This part shall be applicable to hearings required by statute to be 
held in connection with the establishment of toxic pollutant effluent 
standards under section 307(a) of the Act.



Sec. 104.2  Definitions.

    As used in this part, the term:
    (a) Act means the Federal Water Pollution Control Act, as amended, 
33 U.S.C. 1251 et seq., Public Law 92-500, 86 Stat. 816.
    (b) Administrator means the Administrator of the Environmental 
Protection Agency, or any employee of the Agency to whom the 
Administrator may by order delegate his authority to carry out his 
functions under section 307(a) of the Act, or any person who shall by 
operation of law be authorized to carry out such functions.
    (c) Agency means the Environmental Protection Agency.
    (d) Hearing Clerk means the Hearing Clerk, U.S. Environmental 
Protection Agency, 401 M Street SW., Washington, DC 20460.
    (e) Party means the Environmental Protection Agency as the proponent 
of an effluent standard or standards, and any person who files an 
objection pursuant to Sec. 104.3 hereof.
    (f) Person means an individual, corporation, partnership, 
association, state, municipality or other political subdivision of a 
state, or any interstate body.
    (g) Effluent standard means any effluent standard or limitation, 
which may include a prohibition of any discharge, established or 
proposed to be established for any toxic pollutant under section 307(a) 
of the Act.
    (h) Presiding Officer means the Chief Administrative Law Judge of 
the Agency or a person designated by the Chief Administrative Law Judge 
or by the Administrator to preside at a hearing under this part, in 
accordance with Sec. 104.6 hereof.



Sec. 104.3  Notice of hearing; objection; public comment.

    (a) Notice of hearing. Whenever the Administrator publishes any 
proposed effluent standard, he shall simultaneously publish a notice of 
a public hearing to be held within thirty days following the date of 
publication of the proposed standard. Any person who has any objection 
to a proposed standard may file with the hearing clerk a concise 
statement of any such objection. No person may participate in the 
hearing on the proposed toxic pollutant effluent standards unless the 
hearing clerk has received within 25 days of the publication of the 
notice of the proposed standards a statement of objection as herein 
described. In exceptional circumstances and for good cause shown the 
Presiding Officer may allow an objection to be filed after the filing 
deadline prescribed in the preceding sentence, which good cause must 
include at a minimum lack of actual notice on the part of the objector 
or any

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representative of such objector of the proposed standards despite his 
exercise of due diligence, so long as such later filing will not cause 
undue delay in the proceedings or prejudice to any of the parties.
    (b) Objections. Any objection to a proposed standard which is filed 
pursuant to paragraph (a) of this section shall meet the following 
requirements:
    (1) It shall be filed in triplicate with the hearing clerk within 
the time prescribed in paragraph (a) of this section;
    (2) It shall state concisely and with particularity each portion of 
the proposed standard to which objection is taken; to the greatest 
extent feasible it shall state the basis for such objection;
    (3) To the greatest extent feasible it shall (i) state specifically 
the objector's proposed modification to any such standard proposed by 
the Agency to which objection is taken, (ii) set forth the reasons why 
such modification is sought, and (iii) identify and describe the 
scientific or other basis for such proposed modification, including 
reference to any pertinent scientific data or authority in support 
thereof.

Any objection which fails to comply with the foregoing provisions shall 
not be accepted for filing. The Presiding Officer shall promptly notify 
any person whose objection is not accepted for any of the reasons set 
forth in this section, stating the reasons therefor.
    (c) Data in support of objection or modification. In the event that 
the time prescribed for filing objections pursuant to paragraphs (a) and 
(b) of this section is insufficient to permit an objecting party to 
fully set forth with such objection the basis therefor together with the 
information and data specified in paragraph (b)(3) of this section, he 
may so state at the time of the filing of such objection, and file a 
more complete statement of such basis, information, and data 
(hereinafter referred to as ``supplemental data'') within the time 
prescribed by this paragraph (c). The supplemental data herein described 
shall be filed not later than 40 days following publication of the 
proposed effluent standards.
    (d) Public comment. The notice required under paragraph (a) of this 
section shall also provide for the submission to the Agency of written 
comments on the proposed rulemaking by interested persons not filing 
objections pursuant to this section as hereinabove described, and hence 
not participating in the hearing as parties. The notice shall fix a time 
deadline for the submission of such comments which shall be not later 
than the date set for commencement of the hearing. Such comments shall 
be received in evidence at the commencement of the hearing. The 
Administrator in making any decision based upon the record shall take 
into account the unavailability of cross-examination in determining the 
weight to be accorded such comments.
    (e) Promulgation in absence of objection. If no objection is filed 
pursuant to this section, then the Administrator shall promulgate the 
final standards on the basis of the Agency's statement of basis and 
purpose and any public comments received pursuant to paragraph (d) of 
this section.



Sec. 104.4  Statement of basis and purpose.

    Whenever the Administrator publishes a proposed effluent standard, 
the notice thereof published in the Federal Register shall include a 
statement of the basis and purpose of the standard or a summary thereof. 
This statement shall include:
    (a) The purpose of the proposed standard;
    (b) An explanation of how the proposed standard was derived;
    (c) Scientific and technical data and studies supporting the 
proposed standard or references thereto if the materials are published 
or otherwise readily available; and
    (d) Such other information as may be reasonably required to set 
forth fully the basis of the standard.


Where the notice of the proposed rulemaking summarizes the full 
statement of basis and purpose, or incorporates documents by reference, 
the documents thus summarized or incorporated by reference shall 
thereupon be made available by the Agency for inspection and copying by 
any interested person.



Sec. 104.5  Docket and record.

    Whenever the Administrator publishes a notice of hearing under this 
part, the hearing clerk shall promptly establish a docket for the 
hearing. The

[[Page 7]]

docket shall include all written objections filed by any party, any 
public comments received pursuant to Sec. 104.3(d), a verbatim 
transcript of the hearing, the statement of basis and purpose required 
by Sec. 104.4, and any supporting documents referred to therein, and 
other documents of exhibits that may be received in evidence or marked 
for identification by or at the direction of the Presiding Officer, or 
filed by any party in connection with the hearing. Copies of documents 
in the docket shall be available to any person upon payment to the 
Agency of such charges as the Agency may prescribe to cover the costs of 
duplication. The materials contained in the docket shall constitute the 
record.



Sec. 104.6  Designation of Presiding Officer.

    The Chief Administrative Law Judge of the Agency may preside 
personally at any hearing under this part, or he may designate another 
Administrative Law Judge as Presiding Officer for the hearing. In the 
event of the unavailability of any such Administrative Law Judge, the 
Administrator may designate a Presiding Officer. No person who has any 
personal pecuniary interest in the outcome of a proceeding under this 
part, or who has participated in the development or enforcement of any 
standard or proposed standard at issue in a proceeding hereunder, shall 
serve as Presiding Officer in such proceeding.



Sec. 104.7  Powers of Presiding Officer.

    The Presiding Officer shall have the duty to conduct a fair hearing 
within the time constraints imposed by section 307(a) of the Act. He 
shall take all necessary action to avoid delay and to maintain order. He 
shall have all powers necessary to these ends, including but not limited 
to the power to:
    (a) Rule upon motions and requests;
    (b) Change the time and place of the hearing, and adjourn the 
hearing from time to time or from place to place;
    (c) Examine and cross-examine witnesses;
    (d) Admit or exclude evidence; and
    (e) Require any part or all of the evidence to be submitted in 
writing and by a certain date.



Sec. 104.8  Prehearing conferences.

    Prehearing conferences are encouraged for the purposes of 
simplification of issues, identification and scheduling of evidence and 
witnesses, the establishment of an orderly framework for the 
proceedings, the expediting of the hearing, and such other purposes of a 
similar nature as may be appropriate.
    (a) The Presiding Officer on his own motion may, and at the request 
of any party made within 20 days of the proposal of standards hereunder 
shall, direct all parties to appear at a specified time and place for an 
initial hearing session in the nature of a prehearing conference. 
Matters taken up at the conference may include, without limitation:
    (1) Consideration and simplification of any issues of law or fact;
    (2) Identification, advance submission, marking for identification, 
consideration of any objections to admission, and admission of 
documentary evidence;
    (3) Possible stipulations of fact;
    (4) The identification of each witness expected to be called by each 
party, and the nature and substance of his expected testimony;
    (5) Scheduling of witnesses where practicable, and limitation of the 
number of witnesses where appropriate in order to avoid delay or 
repetition;
    (6) If desirable, the segregation of the hearing into separate 
segments for different provisions of the proposed effluent standards and 
the establishment of separate service lists;
    (7) Encouragement of objecting parties to agree upon and designate 
lead counsel for objectors with common interests so as to avoid 
repetitious questioning of witnesses.
    (b) The Presiding Officer may, following a prehearing conference, 
issue an order setting forth the agreements reached by the parties or 
representatives, the schedule of witnesses, and a statement of issues 
for the hearing. In addition such order may direct the parties to file 
and serve copies of documents or materials, file and serve lists of 
witnesses which may include a short summary of the expected testimony of 
each and, in the case of an expert witness, his curriculum vitae, and 
may contain such other directions as may

[[Page 8]]

be appropriate to facilitate the proceedings.



Sec. 104.9  Admission of evidence.

    (a) Where the Presiding Officer has directed identification of 
witnesses and production of documentation evidence by a certain date, 
the Presiding Officer may exclude any such evidence, or refuse to allow 
any witness to testify, when the witness was not identified or the 
document was not served by the time set by the Presiding Officer. Any 
such direction with respect to a party's case in chief shall not 
preclude the use of such evidence or testimony on rebuttal or response, 
or upon a showing satisfactory to the Presiding Officer that good cause 
existed for failure to serve testimony or a document or identify a 
witness by the time required. The Presiding Officer may require direct 
testimony to be in writing under oath and served by a certain date, and 
may exclude testimony not so served.
    (b) At the first prehearing conference, or at another time before 
the beginning of the taking of oral testimony to be set by the Presiding 
Officer, the statement of basis and purpose, together with any 
publications or reference materials cited therein, except where excluded 
by stipulation, shall be received in evidence.
    (c) The Presiding Officer may exclude evidence which is immaterial, 
irrelevant, unduly repetitious or cumulative, or would involve undue 
delay, or which, if hearsay, is not of the sort upon which responsible 
persons are accustomed to rely.
    (d) If relevant and material evidence is contained in a report or 
document containing immaterial or irrelevant matter, such immaterial or 
irrelevant matter may be excluded.
    (e) Whenever written testimony or a document or object is excluded 
from evidence by the Presiding Officer, it shall at the request of the 
proponent be marked for identification. Where oral testimony is 
permitted by the Presiding Officer, but the Presiding Officer excludes 
particular oral testimony, the party offering such testimony may make a 
brief offer of proof.
    (f) Any relevant and material documentary evidence, including but 
not limited to affidavits, published articles, and official documents, 
regardless of the availability of the affiant or author for cross-
examination, may be admitted in evidence, subject to the provisions of 
paragraphs (a), (c), and (d) of this section. The availability or 
nonavailability of cross-examination shall be considered as affecting 
the weight to be accorded such evidence in any decision based upon the 
record.
    (g) Official notice may be taken by the Presiding Officer or the 
Administrator of any matter which could be judicially noticed in the 
United States District Courts, and of other facts within the specialized 
knowledge and experience of the Agency. Opposing parties shall be given 
adequate opportunity to show the contrary.



Sec. 104.10  Hearing procedures.

    (a) Following the admission in evidence of the materials described 
in Sec. 104.9(b), the Agency shall have the right at the commencement 
of the hearing to supplement that evidence or to introduce additional 
relevant evidence. Thereafter the evidence of each objector shall be 
presented in support of its objection and any proposed modification. The 
Agency staff shall then be given an opportunity to rebut or respond to 
the objectors' presentation, including at its option the introduction of 
evidence which tends to support a standard or standards other than as 
set forth in the Agency's own initially proposed standards. In the event 
that evidence which tends to support such other standard or standards is 
offered and received in evidence, then the objectors may thereafter 
rebut or respond to any such new evidence.
    (b) The burden of proof as to any modification of any standard 
proposed by the Agency shall be upon the party who advocates such 
modification to show that the proposed modification is justified based 
upon a preponderance of the evidence.
    (c) Where necessary in order to prevent undue prolongation of the 
hearing, or to comply with time limitations set forth in the Act, the 
Presiding Officer may limit the number of witnesses who may testify, and 
the scope and extent of cross-examination.

[[Page 9]]

    (d) A verbatim transcript of the hearing shall be maintained and 
shall constitute a part of the record.
    (e) If a party objects to the admission or rejection of any evidence 
or to any other ruling of the Presiding Officer during the hearing, he 
shall state briefly the grounds of such objection. With respect to any 
ruling on evidence, it shall not be necessary for any party to claim an 
exception in order to preserve any right of subsequent review.
    (f) Any party may at any time withdraw his objection to a proposed 
effluent standard.



Sec. 104.11  Briefs and findings of fact.

    At the conclusion of the hearing, the Presiding Officer shall set a 
schedule for the submission by the parties of briefs and proposed 
findings of fact and conclusions. In establishing the aforesaid time 
schedule, the Presiding Officer shall consider the time constraints 
placed upon the parties and the Administrator by the statutory 
deadlines.



Sec. 104.12  Certification of record.

    As soon as possible after the hearing, the Presiding Officer shall 
transmit to the hearing clerk the transcript of the testimony and 
exhibits introduced in the hearing. The Presiding Officer shall attach 
to the original transcript his certificate stating that, to the best of 
his knowledge and belief, the transcript is a true transcript of the 
testimony given at the hearing except in such particulars as he shall 
specify, and that the exhibits transmitted are all the exhibits as 
introduced at the hearing with such exceptions as he shall specify.



Sec. 104.13  Interlocutory and post-hearing review of rulings of the Presiding 

Officer; motions.

    (a) The Presiding Officer may certify a ruling for interlocutory 
review by the Administrator where a party so requests and the Presiding 
Officer concludes that (1) the ruling from which review is sought 
involves an important question as to which there is substantial ground 
for difference of opinion, and (2) either (i) a subsequent reversal of 
his ruling would be likely to result in substantial delay or expense if 
left to the conclusion of the proceedings, or (ii) a ruling on the 
question by the Administrator would be of material assistance in 
expediting the hearing. The certificate shall be in writing and shall 
specify the material relevant to the ruling certified. If the 
Administrator determines that interlocutory review is not warranted, he 
may decline to consider the ruling which has been certified.
    (b) Where the Presiding Officer declines to certify a ruling the 
party who had requested certification may apply to the Administrator for 
interlocutory review, or the Administrator may on his own motion direct 
that any matter be submitted to him for review, subject to the standards 
for review set forth in paragraph (a) of this section. An application 
for review shall be in writing and shall briefly state the grounds 
relied on. If the Administrator takes no action with respect to such 
application for interlocutory review within 15 days of its filing, such 
application shall be deemed to have been denied.
    (c) Unless otherwise ordered by the Presiding Officer or the 
Administrator, the hearing shall continue pending consideration by the 
Administrator of any ruling or request for interlocutory review.
    (d) Unless otherwise ordered by the Presiding Officer or the 
Administrator, briefs in response to any application for interlocutory 
review may be filed by any party within five days of the filing of the 
application for review.
    (e) Failure to request or obtain interlocutory review does not waive 
the rights of any party to complain of a ruling following completion of 
the hearing. Within five days following the close of a hearing under 
this part, any party may apply to the Administrator for post-hearing 
review of any procedural ruling, or any ruling made by the Presiding 
Officer concerning the admission or exclusion of evidence to which 
timely objection was made. Within seven days following the filing of any 
such application any other party may file a brief in response thereto.
    (f) If the Administrator on review under paragraph (e) of this 
section determines that evidence was improperly excluded, he may order 
its admission

[[Page 10]]

without remand for further proceedings, or may remand with such 
instructions as he deems appropriate concerning cross-examination, or 
opportunity for any party to submit further evidence, with respect to 
such evidence as he directs should be admitted. In making his 
determination whether to remand, the Administrator shall consider 
whether the statutory time restraints permit a remand, and whether it 
would be constructive to allow cross-examination or further evidence 
with respect to the newly admitted evidence. If evidence is admitted 
without cross-examination, the Administrator shall consider the lack of 
opportunity for cross-examination in determining the weight to be given 
such evidence.
    (g) Motions shall be brief, in writing, and may be filed at any time 
following the publication of the proposed effluent standards, unless 
otherwise ordered by the Presiding Officer or the Administrator. Unless 
otherwise ordered or provided in these rules, responses to motions may 
be filed within seven days of the actual filing of the motion with the 
hearing clerk.



Sec. 104.14  Tentative and final decision by the Administrator.

    (a) As soon as practicable following the certification of the record 
and the filing by the parties of briefs and proposed findings of fact 
and conclusions under Sec. 104.11, the Administrator, with such staff 
assistance as he deems necessary and appropriate, shall review the 
entire record and prepare and file a tentative decision based thereon. 
The tentative decision shall include findings of fact and conclusions, 
and shall be filed with the hearing clerk who shall at once transmit a 
copy thereof to each party who participated at the hearing, or his 
attorney or other representative.
    (b) Upon filing of the tentative decision, the Administrator may 
allow a reasonable time for the parties to file with him any exceptions 
to the tenative decision, a brief in support of such exceptions 
containing appropriate references to the record, and any proposed 
changes in the tentative decision. Such materials shall, upon 
submission, become part of the record. As soon as practicable after the 
filing thereof the Administrator shall prepare and file a final 
decision, copies of which shall be transmitted to the parties or their 
representatives in the manner prescribed in paragraph (a) of this 
section.
    (c) In the event that the Administrator determines that due and 
timely execution of his functions, including compliance with time 
limitations established by law, imperatively and unavoidably so 
requires, he may omit the preparation and filing of the tentative 
decision and related procedures set forth in paragraph (b) of this 
section, and shall instead prepare and file a final decision, copies of 
which shall be transmitted to the parties or their representatives in 
the manner prescribed in paragraph (a) of this section.
    (d) Any decision rendered by the Administrator pursuant to this 
section shall include a statement of his findings and conclusions, and 
the reasons and basis therefor, and shall indicate the toxic pollutant 
effluent standard or standards which the Administrator is promulgating 
or intends to promulgate based thereon.



Sec. 104.15  Promulgation of standards.

    Upon consideration of the record, at the time of his final decision 
the Administrator shall determine whether the proposed effluent standard 
or standards should be promulgated as proposed, or whether any 
modification thereof is justified based upon a proponderance of the 
evidence adduced at the hearing, regardless of whether or not such 
modification was actually proposed by any objecting party. If he 
determines that a modification is not justified, he shall promulgate the 
standard or standards as proposed. If he determines that a modification 
is justified, he shall promulgate a standard or standards as so 
modified.



Sec. 104.16  Filing and time.

    (a) All documents or papers required or authorized by the foregoing 
provisions of this part including, but not limited to, motions, 
applications for review, and briefs, shall be filed in duplicate with 
the hearing clerk, except as otherwise expressly provided in these 
rules. Any document or paper so required or authorized to be filed with

[[Page 11]]

the hearing clerk, if it is filed during the course of the hearing, 
shall be also filed with the Presiding Officer. A copy of each document 
or paper filed by any party with the Presiding Officer, with the hearing 
clerk, or with the Administrator shall be served upon all other parties, 
except to the extent that the list of parties to be so served may be 
modified by order of the Presiding Officer, and each such document or 
paper shall be accompanied by a certificate of such service.
    (b) A party may be represented in any proceeding under this part by 
an attorney or other authorized representative. When any document or 
paper is required under these rules to be served upon a party such 
service shall be made upon such attorney or other representative.
    (c) Except where these rules or an order of the Presiding Officer 
require receipt of a document by a certain date, any document or paper 
required or authorized to be filed by this part shall be deemed to be 
filed when postmarked, or in the case of papers delivered other than by 
mail, when received by the hearing clerk.
    (d) Sundays and legal holidays shall be included in computing the 
time allowed for the filing of any document or paper, provided, that 
when such time expires on a Sunday or legal holiday, such period shall 
be extended to include the next following business day.



PART 105_RECOGNITION AWARDS UNDER THE CLEAN WATER ACT--Table of Contents



Sec.

                                 General

105.1 Background.
105.2 Definitions.
105.3 Title.

                        Eligibility Requirements

105.4 What are the requirements for the Awards Program?
105.5 Who is eligible to win an award?
105.6 What are the Awards Program categories for which I may be 
          eligible?

                   Application and Nomination Process

105.7 How do I apply for an award?
105.8 When can I apply for an award?
105.9 How can I get nominated for an award?

                           Selection Criteria

105.10 What do I need to be considered for an award?
105.11 Who selects the award winners?
105.12 How is the awards review committee selected?
105.13 How are the awards winners selected?

                           Awards Recognition

105.14 How are award winners notified?
105.15 How are award winners recognized?
105.16 How are award winners publicized?

    Authority: Section 501(a) and (e) of the Clean Water Act (CWA), 33 
U.S.C. 1361(a) and (e).

    Source: 67 FR 6142, Feb. 8, 2002, unless otherwise noted.

                                 General



Sec. 105.1  Background.

    The Environmental Protection Agency's (EPA) Clean Water Act (CWA) 
Recognition Awards Program is authorized by CWA section 501(e). The 
Administrator may provide official recognition to industrial 
organizations and political subdivisions of States which during the 
preceding year demonstrated an outstanding technological achievement or 
an innovative process, method or device in their waste treatment and 
pollution abatement programs. The wastewater management programs can 
generally be characterized as waste treatment and/or pollution abatement 
programs. Individual EPA Regional Administrators (and Regional officials 
they may designate) also may conduct Regional CWA Recognition Awards 
Programs according to and consistent with the provisions of this part.



Sec. 105.2  Definitions.

    Applicant means the person authorized to complete the application on 
behalf of an industrial organization or political subdivision of States.
    Application means a completed questionnaire, nomination form, or 
other documentation submitted to or by the States, EPA Regions or 
headquarters for consideration of a national CWA Recognition Award.
    I means the applicant for an award.
    Industrial organization means any company, corporation, association, 
partnership, firm, university, not-for-profit organization, or 
wastewater

[[Page 12]]

treatment facility, as well as a Federal, State or Tribal government 
wastewater treatment facility, or U.S. military command to the extent 
such government and other organizations operate in an ``industrial'' 
capacity in the treatment of wastes or abatement of pollution.
    Nominee means a candidate recommended by the State or Tribe or EPA 
for consideration for a CWA Recognition Award.
    Political subdivision of State means a municipality, city, town, 
borough, county, parish, district, association, or other public body 
(including an intermunicipal agency of two or more of the foregoing 
entities) created by or pursuant to State law.
    State means any of the 50 States, the District of Columbia, the 
Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American 
Samoa, and the Commonwealth of Northern Mariana Islands.
    State water pollution control agency means the State agency 
designated by the Governing Authority having responsibility for 
enforcing State laws relating to the abatement of water pollution.
    You means the applicant for an award.



Sec. 105.3  Title.

    The awards are known as the National Clean Water Act Recognition 
Awards (hereinafter, the Awards Program).

                        Eligibility Requirements



Sec. 105.4  What are the requirements for the Awards Program?

    (a) EPA will administer the Awards Program, and should establish 
annual guidance as necessary to administer the Awards Program. EPA will 
request from the various offices, and States and Tribes as appropriate, 
nominations for the Awards Program.
    (b) Nominees must be in total compliance with all applicable water 
quality requirements under the CWA in order to be eligible for an award, 
and otherwise have a satisfactory record with respect to environmental 
quality.
    (c) Nominees must provide written documentation as evidence to 
support their outstanding technological achievement or innovative 
process, method or device in their waste treatment and/or pollution 
abatement programs.
    (d) EPA may issue annual guidance memoranda to administer each 
year's awards programs. For information on the availability of 
additional guidance, contact the U.S. Environmental Protection Agency, 
Municipal Assistance Branch, 1200 Pennsylvania Avenue, NW., Mail Code 
4204-M, Washington, DC 20460. You may also visit EPA's Web site at 
www.epa.gov/owm.



Sec. 105.5  Who is eligible to win an award?

    A municipality, city, town, borough, county, parish, district, 
association, government agency, or other public body, (including an 
intermunicipal agency of two or more of the foregoing entities) created 
by or pursuant to State law; a company, corporation, association, 
partnership, firm, university, not-for-profit organization, or 
wastewater treatment facility, as well as a Federal, State or Tribal 
government wastewater treatment facility, or U.S. military command to 
the extent such government and other organizations operate in an 
industrial capacity in the treatment of wastes or abatement of pollution 
may be considered for a recognition award.



Sec. 105.6  What are the Awards Program categories for which I may be 

eligible?

    EPA will publish from time to time, a notice in the Federal Register 
announcing the current Awards Program categories. EPA also may 
subsequently discontinue, combine, or rename categories by notice 
published in the Federal Register.

                   Application and Nomination Process



Sec. 105.7  How do I apply for an award?

    You may contact your local EPA Regional office for information on 
the Awards Program guidance each year, or check the Web site at http://
www.epa.gov/owm/intnet.htm. EPA may use an application or nomination 
process, as appropriate for the program or Region.

[[Page 13]]



Sec. 105.8  When can I apply for an award?

    You can contact your local EPA Regional office for award submission 
deadline information which may vary for the award categories, or check 
the Web site at http://www.epa.gov/owm/intnet.htm.



Sec. 105.9  How can I get nominated for an award?

    You may apply to, or ask your State, Tribe or EPA Region to nominate 
you for an award. Only applications or nominations recommended by EPA 
Regions are considered for the national award. EPA personnel conduct 
compliance evaluations prior to presenting a national award.

                           Selection Criteria



Sec. 105.10  What do I need to be considered for an award?

    Your facility or pollution abatement program must be in total 
compliance with all applicable water quality requirements, and otherwise 
have a satisfactory record with respect to environmental quality. 
Additionally, your facility or pollution abatement program must provide 
written documentation as evidence of an outstanding technological 
achievement or an innovative process, method or device demonstrated in 
the preceding year, which resulted in environmental benefits, cost 
savings and/or public acceptance.



Sec. 105.11  Who selects the award winners?

    After EPA receives the completed application, the application is 
evaluated by a review committee. After the review committee completes 
its evaluation of the programs that have been nominated, they make 
recommendations for the national awards. EPA then analyzes the results 
and selects the award winners.



Sec. 105.12  How is the awards review committee selected?

    EPA review committee members are selected by the EPA and in some 
cases, State or Tribal water pollution control agencies. The number of 
participants in a nominations review process is based on staff 
availability, and may be one person.



Sec. 105.13  How are the award winners selected?

    Nominees and applications are recommended by EPA regions. EPA 
personnel conduct compliance evaluations prior to presenting a national 
award. EPA selects national award winners based on demonstrated evidence 
of outstanding and/or innovative wastewater treatment and pollution 
abatement programs or projects which result in environmental benefits, 
cost savings and/or public acceptance. Based upon results of review 
committee evaluations, the Agency selects first place winners for a 
national award in the appropriate awards categories. A second place 
winner may or may not be selected. EPA may or may not select an award 
winner for every awards program category. Award decisions are not 
subject to administrative review.

                           Awards Recognition



Sec. 105.14  How are award winners notified?

    EPA notifies national award winners by letter.



Sec. 105.15  How are award winners recognized?

    EPA presents national award winners with a certificate or plaque at 
an awards presentation ceremony as recognition for an outstanding 
technological achievement or an innovative process, method or device in 
wastewater treatment and/or pollution abatement programs. The President 
of the United States, the Governor of the State, or Tribal leader of the 
jurisdiction reservation in which the awardee is situated, the Speaker 
of the House of Representatives and the President pro tempore of the 
Senate are notified by the Administrator.



Sec. 105.16  How are award winners publicized?

    EPA announces the annual national recognition award winners through 
notice published in the Federal Register.

[[Page 14]]



PART 108_EMPLOYEE PROTECTION HEARINGS--Table of Contents



Sec.
108.1 Applicability.
108.2 Definitions.
108.3 Request for investigation.
108.4 Investigation by Regional Administrator.
108.5 Procedure.
108.6 Recommendations.
108.7 Hearing before Administrator.

    Authority: Sec. 507(e), Pub. L. 92-500, 86 Stat. 816 (33 U.S.C. 1251 
et seq.).

    Source: 39 FR 15398, May 3, 1974, unless otherwise noted.



Sec. 108.1  Applicability.

    This part shall be applicable to investigations and hearings 
required by section 507(e) of the Federal Water Pollution Control Act, 
as amended, 33 U.S.C. 1251 et seq. (Pub. L. 92-500).



Sec. 108.2  Definitions.

    As used in this part, the term:
    (a) Act means the Federal Water Pollution Control Act, as amended;
    (b) Effluent limitation means any effluent limitation which is 
established as a condition of a permit issued or proposed to be issued 
by a State or by the Environmental Protection Agency pursuant to section 
402 of the Act; any toxic or pretreatment effluent standard established 
under section 307 of the Act; any standard of performance established 
under section 306 of the Act; and any effluent limitation established 
under section 302, section 316, or section 318 of the Act.
    (c) Order means any order issued by the Administrator under section 
309 of the Act; any order issued by a State to secure compliance with a 
permit, or condition thereof, issued under a program approved pursuant 
to section 402 of the Act; or any order issued by a court in an action 
brought pursuant to section 309 or section 505 of the Act.
    (d) Party means an employee filing a request under Sec. 108.3, any 
employee similarly situated, the employer of any such employee, and the 
Regional Administrator or his designee.
    (e) Administrator or Regional Administrator means the Administrator 
or a Regional Administrator of the Environmental Protection Agency.



Sec. 108.3  Request for investigation.

    Any employee who is discharged or laid-off, threatened with 
discharge or lay-off, or otherwise discriminated against by any person 
because of the alleged results of any effluent limitation or order 
issued under the Act, or any representative of such employee, may submit 
a request for an investigation under this part to the Regional 
Administrator of the region in which such discrimination is alleged to 
have occurred.



Sec. 108.4  Investigation by Regional Administrator.

    Upon receipt of any request meeting the requirements of Sec. 108.3, 
the Regional Administrator shall conduct a full investigation of the 
matter, in order to determine whether the request may be related to an 
effluent limitation or order under the Act. Following the investigation, 
the Regional Administrator shall notify the employee requesting the 
investigation (or the employee's representative) and the employer of 
such employee, in writing, of his preliminary findings and conclusions. 
The employee, the representative of such employee, or the employer may 
within fifteen days following receipt of the preliminary findings and 
conclusions of the Regional Administrator request a hearing under this 
part. Upon receipt of such a request, the Regional Administrator, with 
the concurrence of the Chief Administrative Law Judge, shall publish 
notice of a hearing to be held not less than 30 days following the date 
of such publication where he determines that there are factual issues 
concerning the existence of the alleged discrimination or its 
relationship to an effluent limitation or order under the Act. The 
notice shall specify a date before which any party (or representative of 
such party) may submit a request to appear.



Sec. 108.5  Procedure.

    Any hearing held pursuant to this part shall be of record and shall 
be conducted according to the requirements of 5 U.S.C. 554. The 
Administrative Law Judge shall conduct the hearing in an orderly and 
expeditious manner. By agreement of the parties, he may dismiss the 
hearing. The Administrative

[[Page 15]]

Law Judge, on his own motion, or at the request of any party, shall have 
the power to hold prehearing conferences, to issue subpoenas for the 
attendance and testimony of witnesses and the production of relevant 
papers, books, and documents, and he may administer oaths. The Regional 
Administrator, and any party submitting a request pursuant to Sec. 
108.3 or Sec. 108.4, or counsel or other representative of such party 
or the Regional Administrator, may appear and offer evidence at the 
hearing.



Sec. 108.6  Recommendations.

    At the conclusion of any hearing under this part, the Administrative 
Law Judge shall, based on the record, issue tentative findings of fact 
and recommendations concerning the alleged discrimination, and shall 
submit such tentative findings and recommendations to the Administrator. 
The Administrator shall adopt or modify the findings and recommendations 
of the Administrative Law Judge, and shall make copies of such findings 
and recommendations available to the complaining employee, the employer, 
and the public.



Sec. 108.7  Hearing before Administrator.

    At his option, the Administrator may exercise any powers of an 
Administrative Law Judge with respect to hearings under this part.



PART 109_CRITERIA FOR STATE, LOCAL AND REGIONAL OIL REMOVAL CONTINGENCY 

PLANS--Table of Contents



Sec.
109.1 Applicability.
109.2 Definitions.
109.3 Purpose and scope.
109.4 Relationship to Federal response actions.
109.5 Development and implementation criteria for State, local and 
          regional oil removal contingency plans.
109.6 Coordination.

    Authority: Sec. 11(j)(1)(B), 84 Stat. 96, 33 U.S.C. 1161(j)(1)(B).

    Source: 36 FR 22485, Nov. 25, 1971, unless otherwise noted.



Sec. 109.1  Applicability.

    The criteria in this part are provided to assist State, local and 
regional agencies in the development of oil removal contingency plans 
for the inland navigable waters of the United States and all areas other 
than the high seas, coastal and contiguous zone waters, coastal and 
Great Lakes ports and harbors and such other areas as may be agreed upon 
between the Environmental Protection Agency and the Department of 
Transportation in accordance with section 11(j)(1)(B) of the Federal 
Act, Executive Order No. 11548 dated July 20, 1970 (35 FR 11677) and 
Sec. 306.2 of the National Oil and Hazardous Materials Pollution 
Contingency Plan (35 FR 8511).



Sec. 109.2  Definitions.

    As used in these guidelines, the following terms shall have the 
meaning indicated below:
    (a) Oil means oil of any kind or in any form, including, but not 
limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with 
wastes other than dredged spoil.
    (b) Discharge includes, but is not limited to, any spilling, 
leaking, pumping, pouring, emitting, emptying, or dumping.
    (c) Remove or removal refers to the removal of the oil from the 
water and shorelines or the taking of such other actions as may be 
necessary to minimize or mitigate damage to the public health or 
welfare, including, but not limited to, fish, shellfish, wildlife, and 
public and private property, shorelines, and beaches.
    (d) Major disaster means any hurricane, tornado, storm, flood, high 
water, wind-driven water, tidal wave, earthquake, drought, fire, or 
other catastrophe in any part of the United States which, in the 
determination of the President, is or threatens to become of sufficient 
severity and magnitude to warrant disaster assistance by the Federal 
Government to supplement the efforts and available resources of States 
and local governments and relief organizations in alleviating the 
damage, loss, hardship, or suffering caused thereby.

[[Page 16]]

    (e) United States means the States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Canal Zone, Guam, American Samoa, the 
Virgin Islands, and the Trust Territory of the Pacific Islands.
    (f) Federal Act means the Federal Water Pollution Control Act, as 
amended, 33 U.S.C. 1151 et seq.



Sec. 109.3  Purpose and scope.

    The guidelines in this part establish minimum criteria for the 
development and implementation of State, local, and regional contingency 
plans by State and local governments in consultation with private 
interests to insure timely, efficient, coordinated and effective action 
to minimize damage resulting from oil discharges. Such plans will be 
directed toward the protection of the public health or welfare of the 
United States, including, but not limited to, fish, shellfish, wildlife, 
and public and private property, shorelines, and beaches. The 
development and implementation of such plans shall be consistent with 
the National Oil and Hazardous Materials Pollution Contingency Plan. 
State, local and regional oil removal contingency plans shall provide 
for the coordination of the total response to an oil discharge so that 
contingency organizations established thereunder can function 
independently, in conjunction with each other, or in conjunction with 
the National and Regional Response Teams established by the National Oil 
and Hazardous Materials Pollution Contingency Plan.



Sec. 109.4  Relationship to Federal response actions.

    The National Oil and Hazardous Materials Pollution Contingency Plan 
provides that the Federal on-scene commander shall investigate all 
reported spills. If such investigation shows that appropriate action is 
being taken by either the discharger or non-Federal entities, the 
Federal on-scene commander shall monitor and provide advice or 
assistance, as required. If appropriate containment or cleanup action is 
not being taken by the discharger or non-Federal entities, the Federal 
on-scene commander will take control of the response activity in 
accordance with section 11(c)(1) of the Federal Act.



Sec. 109.5  Development and implementation criteria for State, local and 

regional oil removal contingency plans.

    Criteria for the development and implementation of State, local and 
regional oil removal contingency plans are:
    (a) Definition of the authorities, responsibilities and duties of 
all persons, organizations or agencies which are to be involved or could 
be involved in planning or directing oil removal operations, with 
particular care to clearly define the authorities, responsibilities and 
duties of State and local governmental agencies to avoid unnecessary 
duplication of contingency planning activities and to minimize the 
potential for conflict and confusion that could be generated in an 
emergency situation as a result of such duplications.
    (b) Establishment of notification procedures for the purpose of 
early detection and timely notification of an oil discharge including:
    (1) The identification of critical water use areas to facilitate the 
reporting of and response to oil discharges.
    (2) A current list of names, telephone numbers and addresses of the 
responsible persons and alternates on call to receive notification of an 
oil discharge as well as the names, telephone numbers and addresses of 
the organizations and agencies to be notified when an oil discharge is 
discovered.
    (3) Provisions for access to a reliable communications system for 
timely notification of an oil discharge and incorporation in the 
communications system of the capability for interconnection with the 
communications systems established under related oil removal contingency 
plans, particularly State and National plans.
    (4) An established, prearranged procedure for requesting assistance 
during a major disaster or when the situation exceeds the response 
capability of the State, local or regional authority.
    (c) Provisions to assure that full resource capability is known and 
can be committed during an oil discharge situation including:

[[Page 17]]

    (1) The identification and inventory of applicable equipment, 
materials and supplies which are available locally and regionally.
    (2) An estimate of the equipment, materials and supplies which would 
be required to remove the maximum oil discharge to be anticipated.
    (3) Development of agreements and arrangements in advance of an oil 
discharge for the acquisition of equipment, materials and supplies to be 
used in responding to such a discharge.
    (d) Provisions for well defined and specific actions to be taken 
after discovery and notification of an oil discharge including:
    (1) Specification of an oil discharge response operating team 
consisting of trained, prepared and available operating personnel.
    (2) Predesignation of a properly qualified oil discharge response 
coordinator who is charged with the responsibility and delegated 
commensurate authority for directing and coordinating response 
operations and who knows how to request assistance from Federal 
authorities operating under existing national and regional contingency 
plans.
    (3) A preplanned location for an oil discharge response operations 
center and a reliable communications system for directing the 
coordinated overall response operations.
    (4) Provisions for varying degrees of response effort depending on 
the severity of the oil discharge.
    (5) Specification of the order of priority in which the various 
water uses are to be protected where more than one water use may be 
adversely affected as a result of an oil discharge and where response 
operations may not be adequate to protect all uses.
    (e) Specific and well defined procedures to facilitate recovery of 
damages and enforcement measures as provided for by State and local 
statutes and ordinances.



Sec. 109.6  Coordination.

    For the purposes of coordination, the contingency plans of State and 
local governments should be developed and implemented in consultation 
with private interests. A copy of any oil removal contingency plan 
developed by State and local governments should be forwarded to the 
Council on Environmental Quality upon request to facilitate the 
coordination of these contingency plans with the National Oil and 
Hazardous Materials Pollution Contingency Plan.



PART 110_DISCHARGE OF OIL--Table of Contents



Sec.
110.1 Definitions.
110.2 Applicability.
110.3 Discharge of oil in such quantities as ``may be harmful'' pursuant 
          to section 311(b)(4) of the Act.
110.4 Dispersants.
110.5 Discharges of oil not determined ``as may be harmful'' pursuant to 
          section 311(b)(3) of the Act.
110.6 Notice.

    Authority: 33 U.S.C. 1321(b)(3) and (b)(4) and 1361(a); E.O. 11735, 
38 FR 21243, 3 CFR Parts 1971-1975 Comp., p. 793.

    Source: 52 FR 10719, Apr. 2, 1987, unless otherwise noted.



Sec. 110.1  Definitions.

    Terms not defined in this section have the same meaning given by the 
Section 311 of the Act. As used in this part, the following terms shall 
have the meaning indicated below:
    Act means the Federal Water Pollution Control Act, as amended, 33 
U.S.C. 1251 et seq., also known as the Clean Water Act;
    Administrator means the Administrator of the Environmental 
Protection Agency (EPA);
    Applicable water quality standards means State water quality 
standards adopted by the State pursuant to section 303 of the Act or 
promulgated by EPA pursuant to that section;
    MARPOL 73/78 means the International Convention for the Prevention 
of Pollution from Ships, 1973, as modified by the Protocol of 1978 
relating thereto, Annex I, which regulates pollution from oil and which 
entered into force on October 2, 1983;
    Navigable waters means the waters of the United States, including 
the territorial seas. The term includes:
    (a) All waters that are currently used, were used in the past, or 
may be susceptible to use in interstate or foreign commerce, including 
all waters

[[Page 18]]

that are subject to the ebb and flow of the tide;
    (b) Interstate waters, including interstate wetlands;
    (c) All other waters such as intrastate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, and wetlands, the 
use, degradation, or destruction of which would affect or could affect 
interstate or foreign commerce including any such waters:
    (1) That 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;
    (3) That are used or could be used for industrial purposes by 
industries in interstate commerce;
    (d) All impoundments of waters otherwise defined as navigable waters 
under this section;
    (e) Tributaries of waters identified in paragraphs (a) through (d) 
of this section, including adjacent wetlands; and
    (f) Wetlands adjacent to waters identified in paragraphs (a) through 
(e) of this section: Provided, That waste treatment systems (other than 
cooling ponds meeting the criteria of this paragraph) are not waters of 
the United States;


Navigable waters 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.
    NPDES means National Pollutant Discharge Elimination System;
    Sheen means an iridescent appearance on the surface of water;
    Sludge means an aggregate of oil or oil and other matter of any kind 
in any form other than dredged spoil having a combined specific gravity 
equivalent to or greater than water;
    United States means the States, the District of Columbia, the 
Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, 
and the Trust Territory of the Pacific Islands;
    Wetlands means those areas that are inundated or saturated by 
surface or ground water at a frequency or 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 playa lakes, swamps, marshes, bogs and 
similar areas such as sloughs, prairie potholes, wet meadows, prairie 
river overflows, mudflats, and natural ponds.

[52 FR 10719, Apr. 2, 1987, as amended at 58 FR 45039, Aug. 25, 1993; 61 
FR 7421, Feb. 28, 1996]



Sec. 110.2  Applicability.

    The regulations of this part apply to the discharge of oil 
prohibited by section 311(b)(3) of the Act.

[61 FR 7421, Feb. 28, 1996]



Sec. 110.3  Discharge of oil in such quantities as ``may be harmful'' pursuant 

to section 311(b)(4) of the Act.

    For purposes of section 311(b)(4) of the Act, discharges of oil in 
such quantities that the Administrator has determined may be harmful to 
the public health or welfare or the environment of the United States 
include discharges of oil that:
    (a) Violate applicable water quality standards; or
    (b) Cause a film or sheen upon or discoloration of the surface of 
the water or adjoining shorelines or cause a sludge or emulsion to be 
deposited beneath the surface of the water or upon adjoining shorelines.

[61 FR 7421, Feb. 28, 1996]



Sec. 110.4  Dispersants.

    Addition of dispersants or emulsifiers to oil to be discharged that 
would circumvent the provisions of this part is prohibited.

[52 FR 10719, Apr. 2, 1987. Redesignated at 61 FR 7421, Feb. 28, 1996]



Sec. 110.5  Discharges of oil not determined ``as may be harmful'' pursuant to 

Section 311(b)(3) of the Act.

    Notwithstanding any other provisions of this part, the Administrator 
has not determined the following discharges of oil ``as may be harmful'' 
for purposes of section 311(b) of the Act:
    (a) Discharges of oil from a properly functioning vessel engine 
(including an

[[Page 19]]

engine on a public vessel) and any discharges of such oil accumulated in 
the bilges of a vessel discharged in compliance with MARPOL 73/78, Annex 
I, as provided in 33 CFR part 151, subpart A;
    (b) Other discharges of oil permitted under MARPOL 73/78, Annex I, 
as provided in 33 CFR part 151, subpart A; and
    (c) Any discharge of oil explicitly permitted by the Administrator 
in connection with research, demonstration projects, or studies relating 
to the prevention, control, or abatement of oil pollution.

[61 FR 7421, Feb. 28, 1996]



Sec. 110.6  Notice.

    Any person in charge of a vessel or of an onshore or offshore 
facility shall, as soon as he or she has knowledge of any discharge of 
oil from such vessel or facility in violation of section 311(b)(3) of 
the Act, immediately notify the National Response Center (NRC) (800-424-
8802; in the Washington, DC metropolitan area, 202-426-2675). If direct 
reporting to the NRC is not practicable, reports may be made to the 
Coast Guard or EPA predesignated On-Scene Coordinator (OSC) for the 
geographic area where the discharge occurs. All such reports shall be 
promptly relayed to the NRC. If it is not possible to notify the NRC or 
the predesignated OCS immediately, reports may be made immediately to 
the nearest Coast Guard unit, provided that the person in charge of the 
vessel or onshore or offshore facility notifies the NRC as soon as 
possible. The reports shall be made in accordance with such procedures 
as the Secretary of Transportation may prescribe. The procedures for 
such notice are set forth in U.S. Coast Guard regulations, 33 CFR part 
153, subpart B and in the National Oil and Hazardous Substances 
Pollution Contingency Plan, 40 CFR part 300, subpart E.

(Approved by the Office of Management and Budget under control number 
2050-0046)

[52 FR 10719, Apr. 2, 1987. Redesignated and amended at 61 FR 7421, Feb. 
28, 1996; 61 FR 14032, Mar. 29, 1996]



PART 112_OIL POLLUTION PREVENTION--Table of Contents



Sec.

 Subpart A_Applicability, Definitions, and General Requirements For All 
                    Facilities and All Types of Oils

112.1 General applicability.
112.2 Definitions.
112.3 Requirement to prepare and implement a Spill Prevention, Control, 
          and Countermeasure Plan.
112.4 Amendment of Spill Prevention, Control, and Countermeasure Plan by 
          Regional Administrator.
112.5 Amendment of Spill Prevention, Control, and Countermeasure Plan by 
          owners or operators.
112.6 Qualified Facility Plan Requirements.
112.7 General requirements for Spill Prevention, Control, and 
          Countermeasure Plans.

Subpart B_Requirements for Petroleum Oils and Non-Petroleum Oils, Except 
 Animal Fats and Oils and Greases, and Fish and Marine Mammal Oils; and 
  Vegetable Oils (Including Oils from Seeds, Nuts, Fruits, and Kernels)

112.8 Spill Prevention, Control, and Countermeasure Plan requirements 
          for onshore facilities (excluding production facilities).
112.9 Spill Prevention, Control, and Countermeasure Plan Requirements 
          for onshore oil production facilities (excluding drilling and 
          workover facilities).
112.10 Spill Prevention, Control, and Countermeasure Plan requirements 
          for onshore oil drilling and workover facilities.
112.11 Spill Prevention, Control, and Countermeasure Plan requirements 
          for offshore oil drilling, production, or workover facilities.

 Subpart C_Requirements for Animal Fats and Oils and Greases, and Fish 
  and Marine Mammal Oils; and for Vegetable Oils, Including Oils from 
                     Seeds, Nuts, Fruits and Kernels

112.12 Spill Prevention, Control, and Countermeasure Plan requirements.
112.13-112.15 [Reserved]

                     Subpart D_Response Requirements

112.20 Facility response plans.
112.21 Facility response training and drills/exercises.

[[Page 20]]

112.22 Temporary Suspension of Response Planning Level Requirements to 
          Support Deepwater Horizon Spill Response.

Appendix A to Part 112--Memorandum of Understanding Between the 
          Secretary of Transportation and the Administrator of the 
          Environmental Protection Agency
Appendix B to Part 112--Memorandum of Understanding Among the Secretary 
          of the Interior, Secretary of Transportation, and 
          Administrator of the Environmental Protection Agency
Appendix C to Part 112--Substantial Harm Criteria
Appendix D to Part 112--Determination of a Worst Case Discharge Planning 
          Volume
Appendix E to Part 112--Determination and Evaluation of Required 
          Response Resources for Facility Response Plans
Appendix F to Part 112--Facility-Specific Response Plan
Appendix G to Part 112--Tier I Qualified Facility SPCC Plan

    Authority: 33 U.S.C. 1251 et seq.; 33 U.S.C. 2720; E.O. 12777 
(October 18, 1991), 3 CFR, 1991 Comp., p. 351.

    Source: 38 FR 34165, Dec. 11, 1973, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 112 appear at 65 FR 
40798, June 30, 2000.



 Subpart A_Applicability, Definitions, and General Requirements for All 

                    Facilities and All Types of Oils

    Source: 67 FR 47140, July 17, 2002, unless otherwise noted.



Sec. 112.1  General applicability.

    (a)(1) This part establishes procedures, methods, equipment, and 
other requirements to prevent the discharge of oil from non-
transportation-related onshore and offshore facilities into or upon the 
navigable waters of the United States or adjoining shorelines, or into 
or upon the waters of the contiguous zone, or in connection with 
activities under the Outer Continental Shelf Lands Act or the Deepwater 
Port Act of 1974, or that may affect natural resources belonging to, 
appertaining to, or under the exclusive management authority of the 
United States (including resources under the Magnuson Fishery 
Conservation and Management Act).
    (2) As used in this part, words in the singular also include the 
plural and words in the masculine gender also include the feminine and 
vice versa, as the case may require.
    (b) Except as provided in paragraph (d) of this section, this part 
applies to any owner or operator of a non-transportation-related onshore 
or offshore facility engaged in drilling, producing, gathering, storing, 
processing, refining, transferring, distributing, using, or consuming 
oil and oil products, which due to its location, could reasonably be 
expected to discharge oil in quantities that may be harmful, as 
described in part 110 of this chapter, into or upon the navigable waters 
of the United States or adjoining shorelines, or into or upon the waters 
of the contiguous zone, or in connection with activities under the Outer 
Continental Shelf Lands Act or the Deepwater Port Act of 1974, or that 
may affect natural resources belonging to, appertaining to, or under the 
exclusive management authority of the United States (including resources 
under the Magnuson Fishery Conservation and Management Act) that has oil 
in:
    (1) Any aboveground container;
    (2) Any completely buried tank as defined in Sec. 112.2;
    (3) Any container that is used for standby storage, for seasonal 
storage, or for temporary storage, or not otherwise ``permanently 
closed'' as defined in Sec. 112.2;
    (4) Any ``bunkered tank'' or ``partially buried tank'' as defined in 
Sec. 112.2, or any container in a vault, each of which is considered an 
aboveground storage container for purposes of this part.
    (c) As provided in section 313 of the Clean Water Act (CWA), 
departments, agencies, and instrumentalities of the Federal government 
are subject to this part to the same extent as any person.
    (d) Except as provided in paragraph (f) of this section, this part 
does not apply to:
    (1) The owner or operator of any facility, equipment, or operation 
that is not subject to the jurisdiction of the Environmental Protection 
Agency (EPA) under section 311(j)(1)(C) of the CWA, as follows:

[[Page 21]]

    (i) Any onshore or offshore facility, that due to its location, 
could not reasonably be expected to have a discharge as described in 
paragraph (b) of this section. This determination must be based solely 
upon consideration of the geographical and location aspects of the 
facility (such as proximity to navigable waters or adjoining shorelines, 
land contour, drainage, etc.) and must exclude consideration of manmade 
features such as dikes, equipment or other structures, which may serve 
to restrain, hinder, contain, or otherwise prevent a discharge as 
described in paragraph (b) of this section.
    (ii) Any equipment, or operation of a vessel or transportation-
related onshore or offshore facility which is subject to the authority 
and control of the U.S. Department of Transportation, as defined in the 
Memorandum of Understanding between the Secretary of Transportation and 
the Administrator of EPA, dated November 24, 1971 (Appendix A of this 
part).
    (iii) Any equipment, or operation of a vessel or onshore or offshore 
facility which is subject to the authority and control of the U.S. 
Department of Transportation or the U.S. Department of the Interior, as 
defined in the Memorandum of Understanding between the Secretary of 
Transportation, the Secretary of the Interior, and the Administrator of 
EPA, dated November 8, 1993 (Appendix B of this part).
    (2) Any facility which, although otherwise subject to the 
jurisdiction of EPA, meets both of the following requirements:
    (i) The completely buried storage capacity of the facility is 42,000 
U.S. gallons or less of oil. For purposes of this exemption, the 
completely buried storage capacity of a facility excludes the capacity 
of a completely buried tank, as defined in Sec. 112.2, and connected 
underground piping, underground ancillary equipment, and containment 
systems, that is currently subject to all of the technical requirements 
of part 280 of this chapter or all of the technical requirements of a 
State program approved under part 281 of this chapter, or the capacity 
of any underground oil storage tanks deferred under 40 CFR part 280 that 
supply emergency diesel generators at a nuclear power generation 
facility licensed by the Nuclear Regulatory Commission and subject to 
any Nuclear Regulatory Commission provision regarding design and quality 
criteria, including, but not limited to, 10 CFR part 50. The completely 
buried storage capacity of a facility also excludes the capacity of a 
container that is ``permanently closed,'' as defined in Sec. 112.2 and 
the capacity of intra-facility gathering lines subject to the regulatory 
requirements of 49 CFR part 192 or 195.
    (ii) The aggregate aboveground storage capacity of the facility is 
1,320 U.S. gallons or less of oil. For the purposes of this exemption, 
only containers with a capacity of 55 U.S. gallons or greater are 
counted. The aggregate aboveground storage capacity of a facility 
excludes:
    (A) The capacity of a container that is ``permanently closed'' as 
defined in Sec. 112.2;
    (B) The capacity of a ``motive power container'' as defined in Sec. 
112.2;
    (C) The capacity of hot-mix asphalt or any hot-mix asphalt 
container;
    (D) The capacity of a container for heating oil used solely at a 
single-family residence;
    (E) The capacity of pesticide application equipment and related mix 
containers.
    (3) Any offshore oil drilling, production, or workover facility that 
is subject to the notices and regulations of the Minerals Management 
Service, as specified in the Memorandum of Understanding between the 
Secretary of Transportation, the Secretary of the Interior, and the 
Administrator of EPA, dated November 8, 1993 (Appendix B of this part).
    (4) Any completely buried storage tank, as defined in Sec. 112.2, 
and connected underground piping, underground ancillary equipment, and 
containment systems, at any facility, that is subject to all of the 
technical requirements of part 280 of this chapter or a State program 
approved under part 281 of this chapter, or any underground oil storage 
tanks including below-grade vaulted tanks, deferred under 40 CFR part 
280, as originally promulgated, that supply emergency diesel generators 
at a nuclear power

[[Page 22]]

generation facility licensed by the Nuclear Regulatory Commission, 
provided that such a tank is subject to any Nuclear Regulatory 
Commission provision regarding design and quality criteria, including, 
but not limited to, 10 CFR part 50. Such emergency generator tanks must 
be marked on the facility diagram as provided in Sec. 112.7(a)(3), if 
the facility is otherwise subject to this part.
    (5) Any container with a storage capacity of less than 55 gallons of 
oil.
    (6) Any facility or part thereof used exclusively for wastewater 
treatment and not used to satisfy any requirement of this part. The 
production, recovery, or recycling of oil is not wastewater treatment 
for purposes of this paragraph.
    (7) Any ``motive power container,'' as defined in Sec. 112.2. The 
transfer of fuel or other oil into a motive power container at an 
otherwise regulated facility is not eligible for this exemption.
    (8) Hot-mix asphalt, or any hot-mix asphalt container.
    (9) Any container for heating oil used solely at a single-family 
residence.
    (10) Any pesticide application equipment or related mix containers.
    (11) Intra-facility gathering lines subject to the regulatory 
requirements of 49 CFR part 192 or 195, except that such a line's 
location must be identified and marked as ``exempt'' on the facility 
diagram as provided in Sec. 112.7(a)(3), if the facility is otherwise 
subject to this part.
    (e) This part establishes requirements for the preparation and 
implementation of Spill Prevention, Control, and Countermeasure (SPCC) 
Plans. SPCC Plans are designed to complement existing laws, regulations, 
rules, standards, policies, and procedures pertaining to safety 
standards, fire prevention, and pollution prevention rules. The purpose 
of an SPCC Plan is to form a comprehensive Federal/State spill 
prevention program that minimizes the potential for discharges. The SPCC 
Plan must address all relevant spill prevention, control, and 
countermeasures necessary at the specific facility. Compliance with this 
part does not in any way relieve the owner or operator of an onshore or 
an offshore facility from compliance with other Federal, State, or local 
laws.
    (f) Notwithstanding paragraph (d) of this section, the Regional 
Administrator may require that the owner or operator of any facility 
subject to the jurisdiction of EPA under section 311(j) of the CWA 
prepare and implement an SPCC Plan, or any applicable part, to carry out 
the purposes of the CWA.
    (1) Following a preliminary determination, the Regional 
Administrator must provide a written notice to the owner or operator 
stating the reasons why he must prepare an SPCC Plan, or applicable 
part. The Regional Administrator must send such notice to the owner or 
operator by certified mail or by personal delivery. If the owner or 
operator is a corporation, the Regional Administrator must also mail a 
copy of such notice to the registered agent, if any and if known, of the 
corporation in the State where the facility is located.
    (2) Within 30 days of receipt of such written notice, the owner or 
operator may provide information and data and may consult with the 
Agency about the need to prepare an SPCC Plan, or applicable part.
    (3) Within 30 days following the time under paragraph (b)(2) of this 
section within which the owner or operator may provide information and 
data and consult with the Agency about the need to prepare an SPCC Plan, 
or applicable part, the Regional Administrator must make a final 
determination regarding whether the owner or operator is required to 
prepare and implement an SPCC Plan, or applicable part. The Regional 
Administrator must send the final determination to the owner or operator 
by certified mail or by personal delivery. If the owner or operator is a 
corporation, the Regional Administrator must also mail a copy of the 
final determination to the registered agent, if any and if known, of the 
corporation in the State where the facility is located.
    (4) If the Regional Administrator makes a final determination that 
an SPCC Plan, or applicable part, is necessary, the owner or operator 
must prepare the Plan, or applicable part, within six months of that 
final determination and implement the Plan, or applicable part, as soon 
as possible, but not

[[Page 23]]

later than one year after the Regional Administrator has made a final 
determination.
    (5) The owner or operator may appeal a final determination made by 
the Regional Administrator requiring preparation and implementation of 
an SPCC Plan, or applicable part, under this paragraph. The owner or 
operator must make the appeal to the Administrator of EPA within 30 days 
of receipt of the final determination under paragraph (b)(3) of this 
section from the Regional Administrator requiring preparation and/or 
implementation of an SPCC Plan, or applicable part. The owner or 
operator must send a complete copy of the appeal to the Regional 
Administrator at the time he makes the appeal to the Administrator. The 
appeal must contain a clear and concise statement of the issues and 
points of fact in the case. In the appeal, the owner or operator may 
also provide additional information. The additional information may be 
from any person. The Administrator may request additional information 
from the owner or operator. The Administrator must render a decision 
within 60 days of receiving the appeal or additional information 
submitted by the owner or operator and must serve the owner or operator 
with the decision made in the appeal in the manner described in 
paragraph (f)(1) of this section.

[67 FR 47140, July 17, 2002, as amended at 71 FR 77290, Dec. 26, 2006; 
73 FR 74300, Dec. 5, 2008; 74 FR 58809, Nov. 13, 2009]



Sec. 112.2  Definitions.

    For the purposes of this part:
    Adverse weather means weather conditions that make it difficult for 
response equipment and personnel to clean up or remove spilled oil, and 
that must be considered when identifying response systems and equipment 
in a response plan for the applicable operating environment. Factors to 
consider include significant wave height as specified in Appendix E to 
this part (as appropriate), ice conditions, temperatures, weather-
related visibility, and currents within the area in which the systems or 
equipment is intended to function.
    Alteration means any work on a container involving cutting, burning, 
welding, or heating operations that changes the physical dimensions or 
configuration of the container.
    Animal fat means a non-petroleum oil, fat, or grease of animal, 
fish, or marine mammal origin.
    Breakout tank means a container used to relieve surges in an oil 
pipeline system or to receive and store oil transported by a pipeline 
for reinjection and continued transportation by pipeline.
    Bulk storage container means any container used to store oil. These 
containers are used for purposes including, but not limited to, the 
storage of oil prior to use, while being used, or prior to further 
distribution in commerce. Oil-filled electrical, operating, or 
manufacturing equipment is not a bulk storage container.
    Bunkered tank means a container constructed or placed in the ground 
by cutting the earth and re-covering the container in a manner that 
breaks the surrounding natural grade, or that lies above grade, and is 
covered with earth, sand, gravel, asphalt, or other material. A bunkered 
tank is considered an aboveground storage container for purposes of this 
part.
    Completely buried tank means any container completely below grade 
and covered with earth, sand, gravel, asphalt, or other material. 
Containers in vaults, bunkered tanks, or partially buried tanks are 
considered aboveground storage containers for purposes of this part.
    Complex means a facility possessing a combination of transportation-
related and non-transportation-related components that is subject to the 
jurisdiction of more than one Federal agency under section 311(j) of the 
CWA.
    Contiguous zone means the zone established by the United States 
under Article 24 of the Convention of the Territorial Sea and Contiguous 
Zone, that is contiguous to the territorial sea and that extends nine 
miles seaward from the outer limit of the territorial area.
    Contract or other approved means means:
    (1) A written contractual agreement with an oil spill removal 
organization that identifies and ensures the availability of the 
necessary personnel and equipment within appropriate response times; 
and/or

[[Page 24]]

    (2) A written certification by the owner or operator that the 
necessary personnel and equipment resources, owned or operated by the 
facility owner or operator, are available to respond to a discharge 
within appropriate response times; and/or
    (3) Active membership in a local or regional oil spill removal 
organization that has identified and ensures adequate access through 
such membership to necessary personnel and equipment to respond to a 
discharge within appropriate response times in the specified geographic 
area; and/or
    (4) Any other specific arrangement approved by the Regional 
Administrator upon request of the owner or operator.
    Discharge includes, but is not limited to, any spilling, leaking, 
pumping, pouring, emitting, emptying, or dumping of oil, but excludes 
discharges in compliance with a permit under section 402 of the CWA; 
discharges resulting from circumstances identified, reviewed, and made a 
part of the public record with respect to a permit issued or modified 
under section 402 of the CWA, and subject to a condition in such permit; 
or continuous or anticipated intermittent discharges from a point 
source, identified in a permit or permit application under section 402 
of the CWA, that are caused by events occurring within the scope of 
relevant operating or treatment systems. For purposes of this part, the 
term discharge shall not include any discharge of oil that is authorized 
by a permit issued under section 13 of the River and Harbor Act of 1899 
(33 U.S.C. 407).
    Facility means any mobile or fixed, onshore or offshore building, 
property, parcel, lease, structure, installation, equipment, pipe, or 
pipeline (other than a vessel or a public vessel) used in oil well 
drilling operations, oil production, oil refining, oil storage, oil 
gathering, oil processing, oil transfer, oil distribution, and oil waste 
treatment, or in which oil is used, as described in Appendix A to this 
part. The boundaries of a facility depend on several site-specific 
factors, including but not limited to, the ownership or operation of 
buildings, structures, and equipment on the same site and types of 
activity at the site. Contiguous or non-contiguous buildings, 
properties, parcels, leases, structures, installations, pipes, or 
pipelines under the ownership or operation of the same person may be 
considered separate facilities. Only this definition governs whether a 
facility is subject to this part.
    Farm means a facility on a tract of land devoted to the production 
of crops or raising of animals, including fish, which produced and sold, 
or normally would have produced and sold, $1,000 or more of agricultural 
products during a year.
    Fish and wildlife and sensitive environments means areas that may be 
identified by their legal designation or by evaluations of Area 
Committees (for planning) or members of the Federal On-Scene 
Coordinator's spill response structure (during responses). These areas 
may include wetlands, National and State parks, critical habitats for 
endangered or threatened species, wilderness and natural resource areas, 
marine sanctuaries and estuarine reserves, conservation areas, 
preserves, wildlife areas, wildlife refuges, wild and scenic rivers, 
recreational areas, national forests, Federal and State lands that are 
research national areas, heritage program areas, land trust areas, and 
historical and archaeological sites and parks. These areas may also 
include unique habitats such as aquaculture sites and agricultural 
surface water intakes, bird nesting areas, critical biological resource 
areas, designated migratory routes, and designated seasonal habitats.
    Injury means a measurable adverse change, either long- or short-
term, in the chemical or physical quality or the viability of a natural 
resource resulting either directly or indirectly from exposure to a 
discharge, or exposure to a product of reactions resulting from a 
discharge.
    Loading/unloading rack means a fixed structure (such as a platform, 
gangway) necessary for loading or unloading a tank truck or tank car, 
which is

[[Page 25]]

located at a facility subject to the requirements of this part. A 
loading/unloading rack includes a loading or unloading arm, and may 
include any combination of the following: piping assemblages, valves, 
pumps, shut-off devices, overfill sensors, or personnel safety devices.
    Maximum extent practicable means within the limitations used to 
determine oil spill planning resources and response times for on-water 
recovery, shoreline protection, and cleanup for worst case discharges 
from onshore non-transportation-related facilities in adverse weather. 
It includes the planned capability to respond to a worst case discharge 
in adverse weather, as contained in a response plan that meets the 
requirements in Sec. 112.20 or in a specific plan approved by the 
Regional Administrator.
    Mobile refueler means a bulk storage container onboard a vehicle or 
towed, that is designed or used solely to store and transport fuel for 
transfer into or from an aircraft, motor vehicle, locomotive, vessel, 
ground service equipment, or other oil storage container.
    Motive power container means any onboard bulk storage container used 
primarily to power the movement of a motor vehicle, or ancillary onboard 
oil-filled operational equipment. An onboard bulk storage container 
which is used to store or transfer oil for further distribution is not a 
motive power container. The definition of motive power container does 
not include oil drilling or workover equipment, including rigs.
    Navigable waters of the United States means ``navigable waters'' as 
defined in section 502(7) of the FWPCA, and includes:
    (1) All navigable waters of the United States, as defined in 
judicial decisions prior to passage of the 1972 Amendments to the FWPCA 
(Pub. L. 92-500), and tributaries of such waters;
    (2) Interstate waters;
    (3) Intrastate lakes, rivers, and streams which are utilized by 
interstate travelers for recreational or other purposes; and
    (4) Intrastate lakes, rivers, and streams from which fish or 
shellfish are taken and sold in interstate commerce.
    Non-petroleum oil means oil of any kind that is not petroleum-based, 
including but not limited to: Fats, oils, and greases of animal, fish, 
or marine mammal origin; and vegetable oils, including oils from seeds, 
nuts, fruits, and kernels.
    Offshore facility means any facility of any kind (other than a 
vessel or public vessel) located in, on, or under any of the navigable 
waters of the United States, and any facility of any kind that is 
subject to the jurisdiction of the United States and is located in, on, 
or under any other waters.
    Oil means oil of any kind or in any form, including, but not limited 
to: fats, oils, or greases of animal, fish, or marine mammal origin; 
vegetable oils, including oils from seeds, nuts, fruits, or kernels; 
and, other oils and greases, including petroleum, fuel oil, sludge, 
synthetic oils, mineral oils, oil refuse, or oil mixed with wastes other 
than dredged spoil.
    Oil-filled operational equipment means equipment that includes an 
oil storage container (or multiple containers) in which the oil is 
present solely to support the function of the apparatus or the device. 
Oil-filled operational equipment is not considered a bulk storage 
container, and does not include oil-filled manufacturing equipment 
(flow-through process). Examples of oil-filled operational equipment 
include, but are not limited to, hydraulic systems, lubricating systems 
(e.g., those for pumps, compressors and other rotating equipment, 
including pumpjack lubrication systems), gear boxes, machining coolant 
systems, heat transfer systems, transformers, circuit breakers, 
electrical switches, and other systems containing oil solely to enable 
the operation of the device.
    Oil Spill Removal Organization means an entity that provides oil 
spill response resources, and includes any for-profit or not-for-profit 
contractor, cooperative, or in-house response resources that have been 
established in a geographic area to provide required response resources.
    Onshore facility means any facility of any kind located in, on, or 
under any land within the United States, other than submerged lands.

[[Page 26]]

    Owner or operator means any person owning or operating an onshore 
facility or an offshore facility, and in the case of any abandoned 
offshore facility, the person who owned or operated or maintained the 
facility immediately prior to such abandonment.
    Partially buried tank means a storage container that is partially 
inserted or constructed in the ground, but not entirely below grade, and 
not completely covered with earth, sand, gravel, asphalt, or other 
material. A partially buried tank is considered an aboveground storage 
container for purposes of this part.
    Permanently closed means any container or facility for which:
    (1) All liquid and sludge has been removed from each container and 
connecting line; and
    (2) All connecting lines and piping have been disconnected from the 
container and blanked off, all valves (except for ventilation valves) 
have been closed and locked, and conspicuous signs have been posted on 
each container stating that it is a permanently closed container and 
noting the date of closure.
    Person includes an individual, firm, corporation, association, or 
partnership.
    Petroleum oil means petroleum in any form, including but not limited 
to crude oil, fuel oil, mineral oil, sludge, oil refuse, and refined 
products.
    Produced water container means a storage container at an oil 
production facility used to store the produced water after initial oil/
water separation, and prior to reinjection, beneficial reuse, discharge, 
or transfer for disposal.
    Production facility means all structures (including but not limited 
to wells, platforms, or storage facilities), piping (including but not 
limited to flowlines or intra-facility gathering lines), or equipment 
(including but not limited to workover equipment, separation equipment, 
or auxiliary non-transportation-related equipment) used in the 
production, extraction, recovery, lifting, stabilization, separation or 
treating of oil (including condensate), or associated storage or 
measurement, and is located in an oil or gas field, at a facility. This 
definition governs whether such structures, piping, or equipment are 
subject to a specific section of this part.
    Regional Administrator means the Regional Administrator of the 
Environmental Protection Agency, in and for the Region in which the 
facility is located.
    Repair means any work necessary to maintain or restore a container 
to a condition suitable for safe operation, other than that necessary 
for ordinary, day-to-day maintenance to maintain the functional 
integrity of the container and that does not weaken the container.
    Spill Prevention, Control, and Countermeasure Plan; SPCC Plan, or 
Plan means the document required by Sec. 112.3 that details the 
equipment, workforce, procedures, and steps to prevent, control, and 
provide adequate countermeasures to a discharge.
    Storage capacity of a container means the shell capacity of the 
container.
    Transportation-related and non-transportation-related, as applied to 
an onshore or offshore facility, are defined in the Memorandum of 
Understanding between the Secretary of Transportation and the 
Administrator of the Environmental Protection Agency, dated November 24, 
1971, (appendix A of this part).
    United States means the States, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, and the Pacific 
Island Governments.
    Vegetable oil means a non-petroleum oil or fat of vegetable origin, 
including but not limited to oils and fats derived from plant seeds, 
nuts, fruits, and kernels.
    Vessel means every description of watercraft or other artificial 
contrivance used, or capable of being used, as a means of transportation 
on water, other than a public vessel.
    Wetlands means those areas that are inundated or saturated by 
surface or groundwater at a frequency or 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 playa

[[Page 27]]

lakes, swamps, marshes, bogs, and similar areas such as sloughs, prairie 
potholes, wet meadows, prairie river overflows, mudflats, and natural 
ponds.
    Worst case discharge for an onshore non-transportation-related 
facility means the largest foreseeable discharge in adverse weather 
conditions as determined using the worksheets in Appendix D to this 
part.

[67 FR 47140, July 17, 2002, as amended at 71 FR 77290, Dec. 26, 2006; 
73 FR 71943, Nov. 26, 2008; 73 FR 74300, Dec. 5, 2008]



Sec. 112.3  Requirement to prepare and implement a Spill Prevention, Control, 

and Countermeasure Plan.

    The owner or operator or an onshore or offshore facility subject to 
this section must prepare in writing and implement a Spill Prevention 
Control and Countermeasure Plan (hereafter ``SPCC Plan'' or ``Plan''),'' 
in accordance with Sec. 112.7 and any other applicable section of this 
part.
    (a) If your onshore or offshore facility was in operation on or 
before August 16, 2002, you must maintain your Plan, but must amend it, 
if necessary to ensure compliance with this part, and implement the Plan 
no later than November 10, 2010. If your onshore or offshore facility 
becomes operational after August 16, 2002, through November 10, 2010, 
and could reasonably be expected to have a discharge as described in 
Sec. 112.1(b), you must prepare and implement a Plan on or before 
November 10, 2010.
    (b)(1) If you are the owner or operator of an onshore or offshore 
facility (excluding oil production facilities) that becomes operational 
after November 10, 2010, and could reasonably be expected to have a 
discharge as described in Sec. 112.1(b), you must prepare and implement 
a Plan before you begin operations.
    (2) If you are the owner or operator of an oil production facility 
that becomes operational after November 10, 2010, and could reasonably 
be expected to have a discharge as described in Sec. 112.1(b), you must 
prepare and implement a Plan within six months after you begin 
operations.
    (c) If you are the owner or operator of an onshore or offshore 
mobile facility, such as an onshore drilling or workover rig, barge 
mounted offshore drilling or workover rig, or portable fueling facility, 
you must prepare, implement, and maintain a facility Plan as required by 
this section. You must maintain your Plan, but must amend and implement 
it, if necessary to ensure compliance with this part, on or before 
November 10, 2010. If your onshore or offshore mobile facility becomes 
operational after November 10, 2010, and could reasonably be expected to 
have a discharge as described in Sec. 112.1(b), you must prepare and 
implement a Plan before you begin operations. This provision does not 
require that you prepare a new Plan each time you move the facility to a 
new site. The Plan may be a general Plan. When you move the mobile or 
portable facility, you must locate and install it using the discharge 
prevention practices outlined in the Plan for the facility. The Plan is 
applicable only while the facility is in a fixed (non-transportation) 
operating mode.
    (d) Except as provided in Sec. 112.6, a licensed Professional 
Engineer must review and certify a Plan for it to be effective to 
satisfy the requirements of this part.
    (1) By means of this certification the Professional Engineer 
attests:
    (i) That he is familiar with the requirements of this part ;
    (ii) That he or his agent has visited and examined the facility;
    (iii) That the Plan has been prepared in accordance with good 
engineering practice, including consideration of applicable industry 
standards, and with the requirements of this part;
    (iv) That procedures for required inspections and testing have been 
established; and
    (v) That the Plan is adequate for the facility.
    (vi) That, if applicable, for a produced water container subject to 
Sec. 112.9(c)(6), any procedure to minimize the amount of free-phase 
oil is designed to reduce the accumulation of free-phase oil and the 
procedures and frequency for required inspections, maintenance and 
testing have been established and are described in the Plan.

[[Page 28]]

    (2) Such certification shall in no way relieve the owner or operator 
of a facility of his duty to prepare and fully implement such Plan in 
accordance with the requirements of this part.
    (e) If you are the owner or operator of a facility for which a Plan 
is required under this section, you must:
    (1) Maintain a complete copy of the Plan at the facility if the 
facility is normally attended at least four hours per day, or at the 
nearest field office if the facility is not so attended, and
    (2) Have the Plan available to the Regional Administrator for on-
site review during normal working hours.
    (f) Extension of time. (1) The Regional Administrator may authorize 
an extension of time for the preparation and full implementation of a 
Plan, or any amendment thereto, beyond the time permitted for the 
preparation, implementation, or amendment of a Plan under this part, 
when he finds that the owner or operator of a facility subject to this 
section, cannot fully comply with the requirements as a result of either 
nonavailability of qualified personnel, or delays in construction or 
equipment delivery beyond the control and without the fault of such 
owner or operator or his agents or employees.
    (2) If you are an owner or operator seeking an extension of time 
under paragraph (f)(1) of this section, you may submit a written 
extension request to the Regional Administrator. Your request must 
include:
    (i) A full explanation of the cause for any such delay and the 
specific aspects of the Plan affected by the delay;
    (ii) A full discussion of actions being taken or contemplated to 
minimize or mitigate such delay; and
    (iii) A proposed time schedule for the implementation of any 
corrective actions being taken or contemplated, including interim dates 
for completion of tests or studies, installation and operation of any 
necessary equipment, or other preventive measures. In addition you may 
present additional oral or written statements in support of your 
extension request.
    (3) The submission of a written extension request under paragraph 
(f)(2) of this section does not relieve you of your obligation to comply 
with the requirements of this part. The Regional Administrator may 
request a copy of your Plan to evaluate the extension request. When the 
Regional Administrator authorizes an extension of time for particular 
equipment or other specific aspects of the Plan, such extension does not 
affect your obligation to comply with the requirements related to other 
equipment or other specific aspects of the Plan for which the Regional 
Administrator has not expressly authorized an extension.
    (g) Qualified Facilities. The owner or operator of a qualified 
facility as defined in this subparagraph may self-certify his facility's 
Plan, as provided in Sec. 112.6. A qualified facility is one that meets 
the following Tier I or Tier II qualified facility criteria:
    (1) A Tier I qualified facility meets the qualification criteria in 
paragraph (g)(2) of this section and has no individual aboveground oil 
storage container with a capacity greater than 5,000 U.S. gallons.
    (2) A Tier II qualified facility is one that has had no single 
discharge as described in Sec. 112.1(b) exceeding 1,000 U.S. gallons or 
no two discharges as described in Sec. 112.1(b) each exceeding 42 U.S. 
gallons within any twelve month period in the three years prior to the 
SPCC Plan self-certification date, or since becoming subject to this 
part if the facility has been in operation for less than three years 
(other than discharges as described in Sec. 112.1(b) that are the 
result of natural disasters, acts of war, or terrorism), and has an 
aggregate aboveground oil storage capacity of 10,000 U.S. gallons or 
less.

[67 FR 47140, July 17, 2002, as amended at 68 FR 1351, Jan. 9, 2003; 68 
FR 18894, Apr. 17, 2003; 69 FR 48798, Aug. 11, 2004; 71 FR 8466, Feb. 
17, 2006; 71 FR 77290, Dec. 26, 2006; 72 FR 27447, May 16, 2007; 73 FR 
74301, Dec. 5, 2008, 74 FR 29141, June 19, 2009; 74 FR 58809, Nov. 13, 
2009]



Sec. 112.4  Amendment of Spill Prevention, Control, and Countermeasure Plan by 

Regional Administrator.

    If you are the owner or operator of a facility subject to this part, 
you must:
    (a) Notwithstanding compliance with Sec. 112.3, whenever your 
facility has discharged more than 1,000 U.S. gallons of oil in a single 
discharge as described in Sec. 112.1(b), or discharged more than 42

[[Page 29]]

U.S. gallons of oil in each of two discharges as described in Sec. 
112.1(b), occurring within any twelve month period, submit the following 
information to the Regional Administrator within 60 days from the time 
the facility becomes subject to this section:
    (1) Name of the facility;
    (2) Your name;
    (3) Location of the facility;
    (4) Maximum storage or handling capacity of the facility and normal 
daily throughput;
    (5) Corrective action and countermeasures you have taken, including 
a description of equipment repairs and replacements;
    (6) An adequate description of the facility, including maps, flow 
diagrams, and topographical maps, as necessary;
    (7) The cause of such discharge as described in Sec. 112.1(b), 
including a failure analysis of the system or subsystem in which the 
failure occurred;
    (8) Additional preventive measures you have taken or contemplated to 
minimize the possibility of recurrence; and
    (9) Such other information as the Regional Administrator may 
reasonably require pertinent to the Plan or discharge.
    (b) Take no action under this section until it applies to your 
facility. This section does not apply until the expiration of the time 
permitted for the initial preparation and implementation of the Plan 
under Sec. 112.3, but not including any amendments to the Plan.
    (c) Send to the appropriate agency or agencies in charge of oil 
pollution control activities in the State in which the facility is 
located a complete copy of all information you provided to the Regional 
Administrator under paragraph (a) of this section. Upon receipt of the 
information such State agency or agencies may conduct a review and make 
recommendations to the Regional Administrator as to further procedures, 
methods, equipment, and other requirements necessary to prevent and to 
contain discharges from your facility.
    (d) Amend your Plan, if after review by the Regional Administrator 
of the information you submit under paragraph (a) of this section, or 
submission of information to EPA by the State agency under paragraph (c) 
of this section, or after on-site review of your Plan, the Regional 
Administrator requires that you do so. The Regional Administrator may 
require you to amend your Plan if he finds that it does not meet the 
requirements of this part or that amendment is necessary to prevent and 
contain discharges from your facility.
    (e) Act in accordance with this paragraph when the Regional 
Administrator proposes by certified mail or by personal delivery that 
you amend your SPCC Plan. If the owner or operator is a corporation, he 
must also notify by mail the registered agent of such corporation, if 
any and if known, in the State in which the facility is located. The 
Regional Administrator must specify the terms of such proposed 
amendment. Within 30 days from receipt of such notice, you may submit 
written information, views, and arguments on the proposed amendment. 
After considering all relevant material presented, the Regional 
Administrator must either notify you of any amendment required or 
rescind the notice. You must amend your Plan as required within 30 days 
after such notice, unless the Regional Administrator, for good cause, 
specifies another effective date. You must implement the amended Plan as 
soon as possible, but not later than six months after you amend your 
Plan, unless the Regional Administrator specifies another date.
    (f) If you appeal a decision made by the Regional Administrator 
requiring an amendment to an SPCC Plan, send the appeal to the EPA 
Administrator in writing within 30 days of receipt of the notice from 
the Regional Administrator requiring the amendment under paragraph (e) 
of this section. You must send a complete copy of the appeal to the 
Regional Administrator at the time you make the appeal. The appeal must 
contain a clear and concise statement of the issues and points of fact 
in the case. It may also contain additional information from you, or 
from any other person. The EPA Administrator may request additional 
information from you, or from any other person. The EPA Administrator 
must render a decision within 60 days of receiving the appeal and must 
notify you of his decision.

[[Page 30]]



Sec. 112.5  Amendment of Spill Prevention, Control, and Countermeasure Plan by 

owners or operators.

    If you are the owner or operator of a facility subject to this part, 
you must:
    (a) Amend the SPCC Plan for your facility in accordance with the 
general requirements in Sec. 112.7, and with any specific section of 
this part applicable to your facility, when there is a change in the 
facility design, construction, operation, or maintenance that materially 
affects its potential for a discharge as described in Sec. 112.1(b). 
Examples of changes that may require amendment of the Plan include, but 
are not limited to: commissioning or decommissioning containers; 
replacement, reconstruction, or movement of containers; reconstruction, 
replacement, or installation of piping systems; construction or 
demolition that might alter secondary containment structures; changes of 
product or service; or revision of standard operation or maintenance 
procedures at a facility. An amendment made under this section must be 
prepared within six months, and implemented as soon as possible, but not 
later than six months following preparation of the amendment.
    (b) Notwithstanding compliance with paragraph (a) of this section, 
complete a review and evaluation of the SPCC Plan at least once every 
five years from the date your facility becomes subject to this part; or, 
if your facility was in operation on or before August 16, 2002, five 
years from the date your last review was required under this part. As a 
result of this review and evaluation, you must amend your SPCC Plan 
within six months of the review to include more effective prevention and 
control technology if the technology has been field-proven at the time 
of the review and will significantly reduce the likelihood of a 
discharge as described in Sec. 112.1(b) from the facility. You must 
implement any amendment as soon as possible, but not later than six 
months following preparation of any amendment. You must document your 
completion of the review and evaluation, and must sign a statement as to 
whether you will amend the Plan, either at the beginning or end of the 
Plan or in a log or an appendix to the Plan. The following words will 
suffice, ``I have completed review and evaluation of the SPCC Plan for 
(name of facility) on (date), and will (will not) amend the Plan as a 
result.''
    (c) Except as provided in Sec. 112.6, have a Professional Engineer 
certify any technical amendments to your Plan in accordance with Sec. 
112.3(d).

[67 FR 47140, July 17, 2002, as amended at 71 FR 77291, Dec. 26, 2006; 
73 FR 74301, Dec. 5, 2008; 74 FR 58809, Nov. 13, 2009]



Sec. 112.6  Qualified Facilities Plan Requirements.

    Qualified facilities meeting the Tier I applicability criteria in 
Sec. 112.3(g)(1) are subject to the requirements in paragraph (a) of 
this section. Qualified facilities meeting the Tier II applicability 
criteria in Sec. 112.3(g)(2) are subject to the requirements in 
paragraph (b) of this section.
    (a) Tier I Qualified Facilities--(1) Preparation and Self-
Certification of the Plan. If you are an owner or operator of a facility 
that meets the Tier I qualified facility criteria in Sec. 112.3(g)(1), 
you must either: comply with the requirements of paragraph (a)(3) of 
this section; or prepare and implement a Plan meeting requirements of 
paragraph (b) of this section; or prepare and implement a Plan meeting 
the general Plan requirements in Sec. 112.7 and applicable requirements 
in subparts B and C, including having the Plan certified by a 
Professional Engineer as required under Sec. 112.3(d). If you do not 
follow the Appendix G template, you must prepare an equivalent Plan that 
meets all of the applicable requirements listed in this part, and you 
must supplement it with a section cross-referencing the location of 
requirements listed in this part and the equivalent requirements in the 
other prevention plan. To complete the template in Appendix G, you must 
certify that:
    (i) You are familiar with the applicable requirements of 40 CFR part 
112;
    (ii) You have visited and examined the facility;
    (iii) You prepared the Plan in accordance with accepted and sound 
industry practices and standards;
    (iv) You have established procedures for required inspections and 
testing in accordance with industry inspection

[[Page 31]]

and testing standards or recommended practices;
    (v) You will fully implement the Plan;
    (vi) The facility meets the qualification criteria in Sec. 
112.3(g)(1);
    (vii) The Plan does not deviate from any requirement of this part as 
allowed by Sec. 112.7(a)(2) and 112.7(d) or include measures pursuant 
to Sec. 112.9(c)(6) for produced water containers and any associated 
piping; and
    (viii) The Plan and individual(s) responsible for implementing this 
Plan have the approval of management, and the facility owner or operator 
has committed the necessary resources to fully implement this Plan.
    (2) Technical Amendments. You must certify any technical amendments 
to your Plan in accordance with paragraph (a)(1) of this section when 
there is a change in the facility design, construction, operation, or 
maintenance that affects its potential for a discharge as described in 
Sec. 112.1(b). If the facility change results in the facility no longer 
meeting the Tier I qualifying criteria in Sec. 112.3(g)(1) because an 
individual oil storage container capacity exceeds 5,000 U.S. gallons or 
the facility capacity exceeds 10,000 U.S. gallons in aggregate 
aboveground storage capacity, within six months following preparation of 
the amendment, you must either:
    (i) Prepare and implement a Plan in accordance with Sec. 112.6(b) 
if you meet the Tier II qualified facility criteria in Sec. 
112.3(g)(2); or
    (ii) Prepare and implement a Plan in accordance with the general 
Plan requirements in Sec. 112.7, and applicable requirements in 
subparts B and C, including having the Plan certified by a Professional 
Engineer as required under Sec. 112.3(d).
    (3) Plan Template and Applicable Requirements. Prepare and implement 
an SPCC Plan that meets the following requirements under Sec. 112.7 and 
in subparts B and C of this part: introductory paragraph of Sec. Sec. 
112.7, 112.7(a)(3)(i), 112.7(a)(3)(iv), 112.7(a)(3)(vi), 112.7(a)(4), 
112.7(a)(5), 112.7(c), 112.7(e), 112.7(f), 112.7(g), 112.7(k), 
112.8(b)(1), 112.8(b)(2), 112.8(c)(1), 112.8(c)(3), 112.8(c)(4), 
112.8(c)(5), 112.8(c)(6), 112.8(c)(10), 112.8(d)(4), 112.9(b), 
112.9(c)(1), 112.9(c)(2), 112.9(c)(3), 112.9(c)(4), 112.9(c)(5), 
112.9(d)(1), 112.9(d)(3), 112.9(d)(4), 112.10(b), 112.10(c), 112.10(d), 
112.12(b)(1), 112.12(b)(2), 112.12(c)(1), 112.12(c)(3), 112.12(c)(4), 
112.12(c)(5), 112.12(c)(6), 112.12(c)(10), and 112.12(d)(4). The 
template in Appendix G to this part has been developed to meet the 
requirements of 40 CFR part 112 and, when completed and signed by the 
owner or operator, may be used as the SPCC Plan. Additionally, you must 
meet the following requirements:
    (i) Failure analysis, in lieu of the requirements in Sec. 112.7(b). 
Where experience indicates a reasonable potential for equipment failure 
(such as loading or unloading equipment, tank overflow, rupture, or 
leakage, or any other equipment known to be a source of discharge), 
include in your Plan a prediction of the direction and total quantity of 
oil which could be discharged from the facility as a result of each type 
of major equipment failure.
    (ii) Bulk storage container secondary containment, in lieu of the 
requirements in Sec. Sec. 112.8(c)(2) and (c)(11) and 112.12(c)(2) and 
(c)(11). Construct all bulk storage container installations (except 
mobile refuelers and other non-transportation-related tank trucks), 
including mobile or portable oil storage containers, so that you provide 
a secondary means of containment for the entire capacity of the largest 
single container plus additional capacity to contain precipitation. 
Dikes, containment curbs, and pits are commonly employed for this 
purpose. You may also use an alternative system consisting of a drainage 
trench enclosure that must be arranged so that any discharge will 
terminate and be safely confined in a catchment basin or holding pond. 
Position or locate mobile or portable oil storage containers to prevent 
a discharge as described in Sec. 112.1(b).
    (iii) Overfill prevention, in lieu of the requirements in Sec. Sec. 
112.8(c)(8) and 112.12(c)(8). Ensure that each container is provided 
with a system or documented procedure to prevent overfills of the 
container, describe the system or procedure in the SPCC Plan and 
regularly test to ensure proper operation or efficacy.
    (b) Tier II Qualified Facilities--(1) Preparation and Self-
Certification of

[[Page 32]]

Plan. If you are the owner or operator of a facility that meets the Tier 
II qualified facility criteria in Sec. 112.3(g)(2), you may choose to 
self-certify your Plan. You must certify in the Plan that:
    (i) You are familiar with the requirements of this part;
    (ii) You have visited and examined the facility;
    (iii) The Plan has been prepared in accordance with accepted and 
sound industry practices and standards, and with the requirements of 
this part;
    (iv) Procedures for required inspections and testing have been 
established;
    (v) You will fully implement the Plan;
    (vi) The facility meets the qualification criteria set forth under 
Sec. 112.3(g)(2);
    (vii) The Plan does not deviate from any requirement of this part as 
allowed by Sec. 112.7(a)(2) and 112.7(d) or include measures pursuant 
to Sec. 112.9(c)(6) for produced water containers and any associated 
piping, except as provided in paragraph (b)(3) of this section; and
    (viii) The Plan and individual(s) responsible for implementing the 
Plan have the full approval of management and the facility owner or 
operator has committed the necessary resources to fully implement the 
Plan.
    (2) Technical Amendments. If you self-certify your Plan pursuant to 
paragraph (b)(1) of this section, you must certify any technical 
amendments to your Plan in accordance with paragraph (b)(1) of this 
section when there is a change in the facility design, construction, 
operation, or maintenance that affects its potential for a discharge as 
described in Sec. 112.1(b), except:
    (i) If a Professional Engineer certified a portion of your Plan in 
accordance with paragraph (b)(4) of this section, and the technical 
amendment affects this portion of the Plan, you must have the amended 
provisions of your Plan certified by a Professional Engineer in 
accordance with paragraph (b)(4)(ii) of this section.
    (ii) If the change is such that the facility no longer meets the 
Tier II qualifying criteria in Sec. 112.3(g)(2) because it exceeds 
10,000 U.S. gallons in aggregate aboveground storage capacity you must, 
within six months following the change, prepare and implement a Plan in 
accordance with the general Plan requirements in Sec. 112.7 and the 
applicable requirements in subparts B and C of this part, including 
having the Plan certified by a Professional Engineer as required under 
Sec. 112.3(d).
    (3) Applicable Requirements. Except as provided in this paragraph, 
your self-certified SPCC Plan must comply with Sec. 112.7 and the 
applicable requirements in subparts B and C of this part:
    (i) Environmental Equivalence. Your Plan may not include alternate 
methods which provide environmental equivalence pursuant to Sec. 
112.7(a)(2), unless each alternate method has been reviewed and 
certified in writing by a Professional Engineer, as provided in 
paragraph (b)(4) of this section.
    (ii) Impracticability. Your Plan may not include any determinations 
that secondary containment is impracticable and provisions in lieu of 
secondary containment pursuant to Sec. 112.7(d), unless each such 
determination and alternate measure has been reviewed and certified in 
writing by a Professional Engineer, as provided in paragraph (b)(4) of 
this section.
    (iii) Produced Water Containers. Your Plan may not include any 
alternative procedures for skimming produced water containers in lieu of 
sized secondary containment pursuant to Sec. 112.9(c)(6), unless they 
have been reviewed and certified in writing by a Professional Engineer, 
as provided in paragraph (b)(4) of this section.
    (4) Professional Engineer Certification of Portions of a Qualified 
Facility's Self-Certified Plan.
    (i) As described in paragraph (b)(3) of this section, the facility 
owner or operator may not self-certify alternative measures allowed 
under Sec. 112.7(a)(2) or (d), that are included in the facility's 
Plan. Such measures must be reviewed and certified, in writing, by a 
licensed Professional Engineer. For each alternative measure allowed 
under Sec. 112.7(a)(2), the Plan must be accompanied by a written 
statement by a Professional Engineer that states the reason for 
nonconformance and describes the alternative method and how it provides 
equivalent environmental protection in accordance with

[[Page 33]]

Sec. 112.7(a)(2). For each determination of impracticability of 
secondary containment pursuant to Sec. 112.7(d), the Plan must clearly 
explain why secondary containment measures are not practicable at this 
facility and provide the alternative measures required in Sec. 112.7(d) 
in lieu of secondary containment. By certifying each measure allowed 
under Sec. 112.7(a)(2) and (d), the Professional Engineer attests:
    (A) That he is familiar with the requirements of this part;
    (B) That he or his agent has visited and examined the facility; and
    (C) That the alternative method of environmental equivalence in 
accordance with Sec. 112.7(a)(2) or the determination of 
impracticability and alternative measures in accordance with Sec. 
112.7(d) is consistent with good engineering practice, including 
consideration of applicable industry standards, and with the 
requirements of this part.
    (ii) As described in paragraph (b)(3) of this section, the facility 
owner or operator may not self-certify measures as described in Sec. 
112.9(c)(6) for produced water containers and any associated piping. 
Such measures must be reviewed and certified, in writing, by a licensed 
Professional Engineer, in accordance with Sec. 112.3(d)(1)(vi).
    (iii) The review and certification by the Professional Engineer 
under this paragraph is limited to the alternative method which achieves 
equivalent environmental protection pursuant to Sec. 112.7(a)(2); to 
the impracticability determination and measures in lieu of secondary 
containment pursuant to Sec. 112.7(d); or the measures pursuant to 
Sec. 112.9(c)(6) for produced water containers and any associated 
piping and appurtenances downstream from the container.

[73 FR 74302, Dec. 5, 2008, as amended at 74 FR 58810, Nov. 13, 2009]



Sec. 112.7  General requirements for Spill Prevention, Control, and 

Countermeasure Plans.

    If you are the owner or operator of a facility subject to this part 
you must prepare a Plan in accordance with good engineering practices. 
The Plan must have the full approval of management at a level of 
authority to commit the necessary resources to fully implement the Plan. 
You must prepare the Plan in writing. If you do not follow the sequence 
specified in this section for the Plan, you must prepare an equivalent 
Plan acceptable to the Regional Administrator that meets all of the 
applicable requirements listed in this part, and you must supplement it 
with a section cross-referencing the location of requirements listed in 
this part and the equivalent requirements in the other prevention plan. 
If the Plan calls for additional facilities or procedures, methods, or 
equipment not yet fully operational, you must discuss these items in 
separate paragraphs, and must explain separately the details of 
installation and operational start-up. As detailed elsewhere in this 
section, you must also:
    (a)(1) Include a discussion of your facility's conformance with the 
requirements listed in this part.
    (2) Comply with all applicable requirements listed in this part. 
Except as provided in Sec. 112.6, your Plan may deviate from the 
requirements in paragraphs (g), (h)(2) and (3), and (i) of this section 
and the requirements in subparts B and C of this part, except the 
secondary containment requirements in paragraphs (c) and (h)(1) of this 
section, and Sec. Sec. 112.8(c)(2), 112.8(c)(11), 112.9(c)(2), 
112.9(d)(3), 112.10(c), 112.12(c)(2), and 112.12(c)(11), where 
applicable to a specific facility, if you provide equivalent 
environmental protection by some other means of spill prevention, 
control, or countermeasure. Where your Plan does not conform to the 
applicable requirements in paragraphs (g), (h)(2) and (3), and (i) of 
this section, or the requirements of subparts B and C of this part, 
except the secondary containment requirements in paragraph (c) and 
(h)(1) of this section, and Sec. Sec. 112.8(c)(2), 112.8(c)(11), 
112.9(c)(2), 112.10(c), 112.12(c)(2), and 112.12(c)(11), you must state 
the reasons for nonconformance in your Plan and describe in detail 
alternate methods and how you will achieve equivalent environmental 
protection. If the Regional Administrator determines that the measures 
described in your Plan do not provide equivalent environmental 
protection, he may require that you amend your

[[Page 34]]

Plan, following the procedures in Sec. 112.4(d) and (e).
    (3) Describe in your Plan the physical layout of the facility and 
include a facility diagram, which must mark the location and contents of 
each fixed oil storage container and the storage area where mobile or 
portable containers are located. The facility diagram must identify the 
location of and mark as ``exempt'' underground tanks that are otherwise 
exempted from the requirements of this part under Sec. 112.1(d)(4). The 
facility diagram must also include all transfer stations and connecting 
pipes, including intra-facility gathering lines that are otherwise 
exempted from the requirements of this part under Sec. 112.1(d)(11). 
You must also address in your Plan:
    (i) The type of oil in each fixed container and its storage 
capacity. For mobile or portable containers, either provide the type of 
oil and storage capacity for each container or provide an estimate of 
the potential number of mobile or portable containers, the types of oil, 
and anticipated storage capacities;
    (ii) Discharge prevention measures including procedures for routine 
handling of products (loading, unloading, and facility transfers, etc.);
    (iii) Discharge or drainage controls such as secondary containment 
around containers and other structures, equipment, and procedures for 
the control of a discharge;
    (iv) Countermeasures for discharge discovery, response, and cleanup 
(both the facility's capability and those that might be required of a 
contractor);
    (v) Methods of disposal of recovered materials in accordance with 
applicable legal requirements; and
    (vi) Contact list and phone numbers for the facility response 
coordinator, National Response Center, cleanup contractors with whom you 
have an agreement for response, and all appropriate Federal, State, and 
local agencies who must be contacted in case of a discharge as described 
in Sec. 112.1(b).
    (4) Unless you have submitted a response plan under Sec. 112.20, 
provide information and procedures in your Plan to enable a person 
reporting a discharge as described in Sec. 112.1(b) to relate 
information on the exact address or location and phone number of the 
facility; the date and time of the discharge, the type of material 
discharged; estimates of the total quantity discharged; estimates of the 
quantity discharged as described in Sec. 112.1(b); the source of the 
discharge; a description of all affected media; the cause of the 
discharge; any damages or injuries caused by the discharge; actions 
being used to stop, remove, and mitigate the effects of the discharge; 
whether an evacuation may be needed; and, the names of individuals and/
or organizations who have also been contacted.
    (5) Unless you have submitted a response plan under Sec. 112.20, 
organize portions of the Plan describing procedures you will use when a 
discharge occurs in a way that will make them readily usable in an 
emergency, and include appropriate supporting material as appendices.
    (b) Where experience indicates a reasonable potential for equipment 
failure (such as loading or unloading equipment, tank overflow, rupture, 
or leakage, or any other equipment known to be a source of a discharge), 
include in your Plan a prediction of the direction, rate of flow, and 
total quantity of oil which could be discharged from the facility as a 
result of each type of major equipment failure.
    (c) Provide appropriate containment and/or diversionary structures 
or equipment to prevent a discharge as described in Sec. 112.1(b), 
except as provided in paragraph (k) of this section for qualified oil-
filled operational equipment, and except as provided in Sec. 
112.9(d)(3) for flowlines and intra-facility gathering lines at an oil 
production facility. The entire containment system, including walls and 
floor, must be capable of containing oil and must be constructed so that 
any discharge from a primary containment system, such as a tank, will 
not escape the containment system before cleanup occurs. In determining 
the method, design, and capacity for secondary containment, you need 
only to address the typical failure mode, and the most likely quantity 
of oil that would be discharged. Secondary containment may be either

[[Page 35]]

active or passive in design. At a minimum, you must use one of the 
following prevention systems or its equivalent:
    (1) For onshore facilities:
    (i) Dikes, berms, or retaining walls sufficiently impervious to 
contain oil;
    (ii) Curbing or drip pans;
    (iii) Sumps and collection systems;
    (iv) Culverting, gutters, or other drainage systems;
    (v) Weirs, booms, or other barriers;
    (vi) Spill diversion ponds;
    (vii) Retention ponds; or
    (viii) Sorbent materials.
    (2) For offshore facilities:
    (i) Curbing or drip pans; or
    (ii) Sumps and collection systems.
    (d) Provided your Plan is certified by a licensed Professional 
Engineer under Sec. 112.3(d), or, in the case of a qualified facility 
that meets the criteria in Sec. 112.3(g), the relevant sections of your 
Plan are certified by a licensed Professional Engineer under Sec. 
112.6(d), if you determine that the installation of any of the 
structures or pieces of equipment listed in paragraphs (c) and (h)(1) of 
this section, and Sec. Sec. 112.8(c)(2), 112.8(c)(11), 112.9(c)(2), 
112.10(c), 112.12(c)(2), and 112.12(c)(11) to prevent a discharge as 
described in Sec. 112.1(b) from any onshore or offshore facility is not 
practicable, you must clearly explain in your Plan why such measures are 
not practicable; for bulk storage containers, conduct both periodic 
integrity testing of the containers and periodic integrity and leak 
testing of the valves and piping; and, unless you have submitted a 
response plan under Sec. 112.20, provide in your Plan the following:
    (1) An oil spill contingency plan following the provisions of part 
109 of this chapter.
    (2) A written commitment of manpower, equipment, and materials 
required to expeditiously control and remove any quantity of oil 
discharged that may be harmful.
    (e) Inspections, tests, and records. Conduct inspections and tests 
required by this part in accordance with written procedures that you or 
the certifying engineer develop for the facility. You must keep these 
written procedures and a record of the inspections and tests, signed by 
the appropriate supervisor or inspector, with the SPCC Plan for a period 
of three years. Records of inspections and tests kept under usual and 
customary business practices will suffice for purposes of this 
paragraph.
    (f) Personnel, training, and discharge prevention procedures. (1) At 
a minimum, train your oil-handling personnel in the operation and 
maintenance of equipment to prevent discharges; discharge procedure 
protocols; applicable pollution control laws, rules, and regulations; 
general facility operations; and, the contents of the facility SPCC 
Plan.
    (2) Designate a person at each applicable facility who is 
accountable for discharge prevention and who reports to facility 
management.
    (3) Schedule and conduct discharge prevention briefings for your 
oil-handling personnel at least once a year to assure adequate 
understanding of the SPCC Plan for that facility. Such briefings must 
highlight and describe known discharges as described in Sec. 112.1(b) 
or failures, malfunctioning components, and any recently developed 
precautionary measures.
    (g) Security (excluding oil production facilities). Describe in your 
Plan how you secure and control access to the oil handling, processing 
and storage areas; secure master flow and drain valves; prevent 
unauthorized access to starter controls on oil pumps; secure out-of-
service and loading/unloading connections of oil pipelines; and address 
the appropriateness of security lighting to both prevent acts of 
vandalism and assist in the discovery of oil discharges.
    (h) Facility tank car and tank truck loading/unloading rack 
(excluding offshore facilities).
    (1) Where loading/unloading rack drainage does not flow into a 
catchment basin or treatment facility designed to handle discharges, use 
a quick drainage system for tank car or tank truck loading/unloading 
racks. You must design any containment system to hold at least the 
maximum capacity of any single compartment of a tank car or tank truck 
loaded or unloaded at the facility.
    (2) Provide an interlocked warning light or physical barrier system, 
warning signs, wheel chocks or vehicle

[[Page 36]]

brake interlock system in the area adjacent to a loading/unloading rack, 
to prevent vehicles from departing before complete disconnection of 
flexible or fixed oil transfer lines.
    (3) Prior to filling and departure of any tank car or tank truck, 
closely inspect for discharges the lowermost drain and all outlets of 
such vehicles, and if necessary, ensure that they are tightened, 
adjusted, or replaced to prevent liquid discharge while in transit.
    (i) If a field-constructed aboveground container undergoes a repair, 
alteration, reconstruction, or a change in service that might affect the 
risk of a discharge or failure due to brittle fracture or other 
catastrophe, or has discharged oil or failed due to brittle fracture 
failure or other catastrophe, evaluate the container for risk of 
discharge or failure due to brittle fracture or other catastrophe, and 
as necessary, take appropriate action.
    (j) In addition to the minimal prevention standards listed under 
this section, include in your Plan a complete discussion of conformance 
with the applicable requirements and other effective discharge 
prevention and containment procedures listed in this part or any 
applicable more stringent State rules, regulations, and guidelines.
    (k) Qualified Oil-filled Operational Equipment. The owner or 
operator of a facility with oil-filled operational equipment that meets 
the qualification criteria in paragraph (k)(1) of this sub-section may 
choose to implement for this qualified oil-filled operational equipment 
the alternate requirements as described in paragraph (k)(2) of this sub-
section in lieu of general secondary containment required in paragraph 
(c) of this section.
    (1) Qualification Criteria--Reportable Discharge History: The owner 
or operator of a facility that has had no single discharge as described 
in Sec. 112.1(b) from any oil-filled operational equipment exceeding 
1,000 U.S. gallons or no two discharges as described in Sec. 112.1(b) 
from any oil-filled operational equipment each exceeding 42 U.S. gallons 
within any twelve month period in the three years prior to the SPCC Plan 
certification date, or since becoming subject to this part if the 
facility has been in operation for less than three years (other than oil 
discharges as described in Sec. 112.1(b) that are the result of natural 
disasters, acts of war or terrorism); and
    (2) Alternative Requirements to General Secondary Containment. If 
secondary containment is not provided for qualified oil-filled 
operational equipment pursuant to paragraph (c) of this section, the 
owner or operator of a facility with qualified oil-filled operational 
equipment must:
    (i) Establish and document the facility procedures for inspections 
or a monitoring program to detect equipment failure and/or a discharge; 
and
    (ii) Unless you have submitted a response plan under Sec. 112.20, 
provide in your Plan the following:
    (A) An oil spill contingency plan following the provisions of part 
109 of this chapter.
    (B) A written commitment of manpower, equipment, and materials 
required to expeditiously control and remove any quantity of oil 
discharged that may be harmful.

[67 FR 47140, July 17, 2002, as amended at 71 FR 77292, Dec. 26, 2006; 
73 FR 74303, Dec. 5, 2008; 74 FR 58810, Nov. 13, 2009]



Subpart B_Requirements for Petroleum Oils and Non-Petroleum Oils, Except 

 Animal Fats and Oils and Greases, and Fish and Marine Mammal Oils; and 

  Vegetable Oils (Including Oils from Seeds, Nuts, Fruits, and Kernels)

    Source: 67 FR 47146, July 17, 2002, unless otherwise noted.



Sec. 112.8  Spill Prevention, Control, and Countermeasure Plan requirements for onshore facilities (excluding production facilities).

    If you are the owner or operator of an onshore facility (excluding a 
production facility), you must:
    (a) Meet the general requirements for the Plan listed under Sec. 
112.7, and the specific discharge prevention and containment procedures 
listed in this section.
    (b) Facility drainage. (1) Restrain drainage from diked storage 
areas by valves to prevent a discharge into the

[[Page 37]]

drainage system or facility effluent treatment system, except where 
facility systems are designed to control such discharge. You may empty 
diked areas by pumps or ejectors; however, you must manually activate 
these pumps or ejectors and must inspect the condition of the 
accumulation before starting, to ensure no oil will be discharged.
    (2) Use valves of manual, open-and-closed design, for the drainage 
of diked areas. You may not use flapper-type drain valves to drain diked 
areas. If your facility drainage drains directly into a watercourse and 
not into an on-site wastewater treatment plant, you must inspect and may 
drain uncontaminated retained stormwater, as provided in paragraphs 
(c)(3)(ii), (iii), and (iv) of this section.
    (3) Design facility drainage systems from undiked areas with a 
potential for a discharge (such as where piping is located outside 
containment walls or where tank truck discharges may occur outside the 
loading area) to flow into ponds, lagoons, or catchment basins designed 
to retain oil or return it to the facility. You must not locate 
catchment basins in areas subject to periodic flooding.
    (4) If facility drainage is not engineered as in paragraph (b)(3) of 
this section, equip the final discharge of all ditches inside the 
facility with a diversion system that would, in the event of an 
uncontrolled discharge, retain oil in the facility.
    (5) Where drainage waters are treated in more than one treatment 
unit and such treatment is continuous, and pump transfer is needed, 
provide two ``lift'' pumps and permanently install at least one of the 
pumps. Whatever techniques you use, you must engineer facility drainage 
systems to prevent a discharge as described in Sec. 112.1(b) in case 
there is an equipment failure or human error at the facility.
    (c) Bulk storage containers. (1) Not use a container for the storage 
of oil unless its material and construction are compatible with the 
material stored and conditions of storage such as pressure and 
temperature.
    (2) Construct all bulk storage tank installations (except mobile 
refuelers and other non-transportation-related tank trucks) so that you 
provide a secondary means of containment for the entire capacity of the 
largest single container and sufficient freeboard to contain 
precipitation. You must ensure that diked areas are sufficiently 
impervious to contain discharged oil. Dikes, containment curbs, and pits 
are commonly employed for this purpose. You may also use an alternative 
system consisting of a drainage trench enclosure that must be arranged 
so that any discharge will terminate and be safely confined in a 
facility catchment basin or holding pond.
    (3) Not allow drainage of uncontaminated rainwater from the diked 
area into a storm drain or discharge of an effluent into an open 
watercourse, lake, or pond, bypassing the facility treatment system 
unless you:
    (i) Normally keep the bypass valve sealed closed.
    (ii) Inspect the retained rainwater to ensure that its presence will 
not cause a discharge as described in Sec. 112.1(b).
    (iii) Open the bypass valve and reseal it following drainage under 
responsible supervision; and
    (iv) Keep adequate records of such events, for example, any records 
required under permits issued in accordance with Sec. Sec. 122.41(j)(2) 
and 122.41(m)(3) of this chapter.
    (4) Protect any completely buried metallic storage tank installed on 
or after January 10, 1974 from corrosion by coatings or cathodic 
protection compatible with local soil conditions. You must regularly 
leak test such completely buried metallic storage tanks.
    (5) Not use partially buried or bunkered metallic tanks for the 
storage of oil, unless you protect the buried section of the tank from 
corrosion. You must protect partially buried and bunkered tanks from 
corrosion by coatings or cathodic protection compatible with local soil 
conditions.
    (6) Test or inspect each aboveground container for integrity on a 
regular schedule and whenever you make material repairs. You must 
determine, in accordance with industry standards, the appropriate 
qualifications for personnel performing tests and inspections, the 
frequency and type of testing

[[Page 38]]

and inspections, which take into account container size, configuration, 
and design (such as containers that are: shop-built, field-erected, 
skid-mounted, elevated, equipped with a liner, double-walled, or 
partially buried). Examples of these integrity tests include, but are 
not limited to: visual inspection, hydrostatic testing, radiographic 
testing, ultrasonic testing, acoustic emissions testing, or other 
systems of non-destructive testing. You must keep comparison records and 
you must also inspect the container's supports and foundations. In 
addition, you must frequently inspect the outside of the container for 
signs of deterioration, discharges, or accumulation of oil inside diked 
areas. Records of inspections and tests kept under usual and customary 
business practices satisfy the recordkeeping requirements of this 
paragraph.
    (7) Control leakage through defective internal heating coils by 
monitoring the steam return and exhaust lines for contamination from 
internal heating coils that discharge into an open watercourse, or pass 
the steam return or exhaust lines through a settling tank, skimmer, or 
other separation or retention system.
    (8) Engineer or update each container installation in accordance 
with good engineering practice to avoid discharges. You must provide at 
least one of the following devices:
    (i) High liquid level alarms with an audible or visual signal at a 
constantly attended operation or surveillance station. In smaller 
facilities an audible air vent may suffice.
    (ii) High liquid level pump cutoff devices set to stop flow at a 
predetermined container content level.
    (iii) Direct audible or code signal communication between the 
container gauger and the pumping station.
    (iv) A fast response system for determining the liquid level of each 
bulk storage container such as digital computers, telepulse, or direct 
vision gauges. If you use this alternative, a person must be present to 
monitor gauges and the overall filling of bulk storage containers.
    (v) You must regularly test liquid level sensing devices to ensure 
proper operation.
    (9) Observe effluent treatment facilities frequently enough to 
detect possible system upsets that could cause a discharge as described 
in Sec. 112.1(b).
    (10) Promptly correct visible discharges which result in a loss of 
oil from the container, including but not limited to seams, gaskets, 
piping, pumps, valves, rivets, and bolts. You must promptly remove any 
accumulations of oil in diked areas.
    (11) Position or locate mobile or portable oil storage containers to 
prevent a discharge as described in Sec. 112.1(b). Except for mobile 
refuelers and other non-transportation-related tank trucks, you must 
furnish a secondary means of containment, such as a dike or catchment 
basin, sufficient to contain the capacity of the largest single 
compartment or container with sufficient freeboard to contain 
precipitation.
    (d) Facility transfer operations, pumping, and facility process. (1) 
Provide buried piping that is installed or replaced on or after August 
16, 2002, with a protective wrapping and coating. You must also 
cathodically protect such buried piping installations or otherwise 
satisfy the corrosion protection standards for piping in part 280 of 
this chapter or a State program approved under part 281 of this chapter. 
If a section of buried line is exposed for any reason, you must 
carefully inspect it for deterioration. If you find corrosion damage, 
you must undertake additional examination and corrective action as 
indicated by the magnitude of the damage.
    (2) Cap or blank-flange the terminal connection at the transfer 
point and mark it as to origin when piping is not in service or is in 
standby service for an extended time.
    (3) Properly design pipe supports to minimize abrasion and corrosion 
and allow for expansion and contraction.
    (4) Regularly inspect all aboveground valves, piping, and 
appurtenances. During the inspection you must assess the general 
condition of items, such as flange joints, expansion joints, valve 
glands and bodies, catch pans, pipeline supports, locking of valves, and 
metal surfaces. You must also conduct integrity and leak testing of 
buried piping

[[Page 39]]

at the time of installation, modification, construction, relocation, or 
replacement.
    (5) Warn all vehicles entering the facility to be sure that no 
vehicle will endanger aboveground piping or other oil transfer 
operations.

[67 FR 47146, July 17, 2002, as amended at 71 FR 77293, Dec. 26, 2006; 
73 FR 74304, Dec. 5, 2008]



Sec. 112.9  Spill Prevention, Control, and Countermeasure Plan Requirements 

for onshore oil production facilities (excluding drilling and workover 

facilities).

    If you are the owner or operator of an onshore oil production 
facility (excluding a drilling or workover facility), you must:
    (a) Meet the general requirements for the Plan listed under Sec. 
112.7, and the specific discharge prevention and containment procedures 
listed under this section.
    (b) Oil production facility drainage. (1) At tank batteries and 
separation and treating areas where there is a reasonable possibility of 
a discharge as described in Sec. 112.1(b), close and seal at all times 
drains of dikes or drains of equivalent measures required under Sec. 
112.7(c)(1), except when draining uncontaminated rainwater. Prior to 
drainage, you must inspect the diked area and take action as provided in 
Sec. 112.8(c)(3)(ii), (iii), and (iv). You must remove accumulated oil 
on the rainwater and return it to storage or dispose of it in accordance 
with legally approved methods.
    (2) Inspect at regularly scheduled intervals field drainage systems 
(such as drainage ditches or road ditches), and oil traps, sumps, or 
skimmers, for an accumulation of oil that may have resulted from any 
small discharge. You must promptly remove any accumulations of oil.
    (c) Oil production facility bulk storage containers. (1) Not use a 
container for the storage of oil unless its material and construction 
are compatible with the material stored and the conditions of storage.
    (2) Except as described in paragraph (c)(5) of this section for 
flow-through process vessels and paragraph (c)(6) of this section for 
produced water containers and any associated piping and appurtenances 
downstream from the container, construct all tank battery, separation, 
and treating facility installations, so that you provide a secondary 
means of containment for the entire capacity of the largest single 
container and sufficient freeboard to contain precipitation. You must 
safely confine drainage from undiked areas in a catchment basin or 
holding pond.
    (3) Except as described in paragraph (c)(5) of this section for 
flow-through process vessels and paragraph (c)(6) of this section for 
produced water containers and any associated piping and appurtenances 
downstream from the container, periodically and upon a regular schedule 
visually inspect each container of oil for deterioration and maintenance 
needs, including the foundation and support of each container that is on 
or above the surface of the ground.
    (4) Engineer or update new and old tank battery installations in 
accordance with good engineering practice to prevent discharges. You 
must provide at least one of the following:
    (i) Container capacity adequate to assure that a container will not 
overfill if a pumper/gauger is delayed in making regularly scheduled 
rounds.
    (ii) Overflow equalizing lines between containers so that a full 
container can overflow to an adjacent container.
    (iii) Vacuum protection adequate to prevent container collapse 
during a pipeline run or other transfer of oil from the container.
    (iv) High level sensors to generate and transmit an alarm signal to 
the computer where the facility is subject to a computer production 
control system.
    (5) Flow-through process vessels. The owner or operator of a 
facility with flow-through process vessels may choose to implement the 
alternate requirements as described below in lieu of sized secondary 
containment required in paragraphs (c)(2) and (c)(3) of this section.
    (i) Periodically and on a regular schedule visually inspect and/or 
test flow-through process vessels and associated components (such as 
dump valves) for leaks, corrosion, or other

[[Page 40]]

conditions that could lead to a discharge as described in Sec. 
112.1(b).
    (ii) Take corrective action or make repairs to flow-through process 
vessels and any associated components as indicated by regularly 
scheduled visual inspections, tests, or evidence of an oil discharge.
    (iii) Promptly remove or initiate actions to stabilize and remediate 
any accumulations of oil discharges associated with flow-through process 
vessels.
    (iv) If your facility discharges more than 1,000 U.S. gallons of oil 
in a single discharge as described in Sec. 112.1(b), or discharges more 
than 42 U.S. gallons of oil in each of two discharges as described in 
Sec. 112.1(b) within any twelve month period, from flow-through process 
vessels (excluding discharges that are the result of natural disasters, 
acts of war, or terrorism) then you must, within six months from the 
time the facility becomes subject to this paragraph, ensure that all 
flow-through process vessels subject to this subpart comply with Sec. 
112.9(c)(2) and (c)(3).
    (6) Produced water containers. For each produced water container, 
comply with Sec. 112.9(c)(1) and (c)(4); and Sec. 112.9(c)(2) and 
(c)(3), or comply with the provisions of the following paragraphs 
(c)(6)(i) through (v):
    (i) Implement, on a regular schedule, a procedure for each produced 
water container that is designed to separate the free-phase oil that 
accumulates on the surface of the produced water. Include in the Plan a 
description of the procedures, frequency, amount of free-phase oil 
expected to be maintained inside the container, and a Professional 
Engineer certification in accordance with Sec. 112.3(d)(1)(vi). 
Maintain records of such events in accordance with Sec. 112.7(e). 
Records kept under usual and customary business practices will suffice 
for purposes of this paragraph. If this procedure is not implemented as 
described in the Plan or no records are maintained, then you must comply 
with Sec. 112.9(c)(2) and (c)(3).
    (ii) On a regular schedule, visually inspect and/or test the 
produced water container and associated piping for leaks, corrosion, or 
other conditions that could lead to a discharge as described in Sec. 
112.1(b) in accordance with good engineering practice.
    (iii) Take corrective action or make repairs to the produced water 
container and any associated piping as indicated by regularly scheduled 
visual inspections, tests, or evidence of an oil discharge.
    (iv) Promptly remove or initiate actions to stabilize and remediate 
any accumulations of oil discharges associated with the produced water 
container.
    (v) If your facility discharges more than 1,000 U.S. gallons of oil 
in a single discharge as described in Sec. 112.1(b), or discharges more 
than 42 U.S. gallons of oil in each of two discharges as described in 
Sec. 112.1(b) within any twelve month period from a produced water 
container subject to this subpart (excluding discharges that are the 
result of natural disasters, acts of war, or terrorism) then you must, 
within six months from the time the facility becomes subject to this 
paragraph, ensure that all produced water containers subject to this 
subpart comply with Sec. 112.9(c)(2) and (c)(3).
    (d) Facility transfer operations, oil production facility. (1) 
Periodically and upon a regular schedule inspect all aboveground valves 
and piping associated with transfer operations for the general condition 
of flange joints, valve glands and bodies, drip pans, pipe supports, 
pumping well polish rod stuffing boxes, bleeder and gauge valves, and 
other such items.
    (2) Inspect saltwater (oil field brine) disposal facilities often, 
particularly following a sudden change in atmospheric temperature, to 
detect possible system upsets capable of causing a discharge.
    (3) For flowlines and intra-facility gathering lines that are not 
provided with secondary containment in accordance with Sec. 112.7(c), 
unless you have submitted a response plan under Sec. 112.20, provide in 
your Plan the following:
    (i) An oil spill contingency plan following the provisions of part 
109 of this chapter.
    (ii) A written commitment of manpower, equipment, and materials 
required to expeditiously control and remove any quantity of oil 
discharged that might be harmful.

[[Page 41]]

    (4) Prepare and implement a written program of flowline/intra-
facility gathering line maintenance. The maintenance program must 
address your procedures to:
    (i) Ensure that flowlines and intra-facility gathering lines and 
associated valves and equipment are compatible with the type of 
production fluids, their potential corrosivity, volume, and pressure, 
and other conditions expected in the operational environment.
    (ii) Visually inspect and/or test flowlines and intra-facility 
gathering lines and associated appurtenances on a periodic and regular 
schedule for leaks, oil discharges, corrosion, or other conditions that 
could lead to a discharge as described in Sec. 112.1(b). For flowlines 
and intra-facility gathering lines that are not provided with secondary 
containment in accordance with Sec. 112.7(c), the frequency and type of 
testing must allow for the implementation of a contingency plan as 
described under part 109 of this chapter.
    (iii) Take corrective action or make repairs to any flowlines and 
intra-facility gathering lines and associated appurtenances as indicated 
by regularly scheduled visual inspections, tests, or evidence of a 
discharge.
    (iv) Promptly remove or initiate actions to stabilize and remediate 
any accumulations of oil discharges associated with flowlines, intra-
facility gathering lines, and associated appurtenances.

[73 FR, 74304, Dec. 5, 2008, as amended at 74 FR 58810, Nov. 13, 2009]



Sec. 112.10  Spill Prevention, Control, and Countermeasure Plan requirements 

for onshore oil drilling and workover facilities.

    If you are the owner or operator of an onshore oil drilling and 
workover facility, you must:
    (a) Meet the general requirements listed under Sec. 112.7, and also 
meet the specific discharge prevention and containment procedures listed 
under this section.
    (b) Position or locate mobile drilling or workover equipment so as 
to prevent a discharge as described in Sec. 112.1(b).
    (c) Provide catchment basins or diversion structures to intercept 
and contain discharges of fuel, crude oil, or oily drilling fluids.
    (d) Install a blowout prevention (BOP) assembly and well control 
system before drilling below any casing string or during workover 
operations. The BOP assembly and well control system must be capable of 
controlling any well-head pressure that may be encountered while that 
BOP assembly and well control system are on the well.



Sec. 112.11  Spill Prevention, Control, and Countermeasure Plan requirements 

for offshore oil drilling, production, or workover facilities.

    If you are the owner or operator of an offshore oil drilling, 
production, or workover facility, you must:
    (a) Meet the general requirements listed under Sec. 112.7, and also 
meet the specific discharge prevention and containment procedures listed 
under this section.
    (b) Use oil drainage collection equipment to prevent and control 
small oil discharges around pumps, glands, valves, flanges, expansion 
joints, hoses, drain lines, separators, treaters, tanks, and associated 
equipment. You must control and direct facility drains toward a central 
collection sump to prevent the facility from having a discharge as 
described in Sec. 112.1(b). Where drains and sumps are not practicable, 
you must remove oil contained in collection equipment as often as 
necessary to prevent overflow.
    (c) For facilities employing a sump system, provide adequately sized 
sump and drains and make available a spare pump to remove liquid from 
the sump and assure that oil does not escape. You must employ a 
regularly scheduled preventive maintenance inspection and testing 
program to assure reliable operation of the liquid removal system and 
pump start-up device. Redundant automatic sump pumps and control devices 
may be required on some installations.
    (d) At facilities with areas where separators and treaters are 
equipped with dump valves which predominantly fail in the closed 
position and where pollution risk is high, specially equip the facility 
to prevent the discharge of oil.

[[Page 42]]

You must prevent the discharge of oil by:
    (1) Extending the flare line to a diked area if the separator is 
near shore;
    (2) Equipping the separator with a high liquid level sensor that 
will automatically shut in wells producing to the separator; or
    (3) Installing parallel redundant dump valves.
    (e) Equip atmospheric storage or surge containers with high liquid 
level sensing devices that activate an alarm or control the flow, or 
otherwise prevent discharges.
    (f) Equip pressure containers with high and low pressure sensing 
devices that activate an alarm or control the flow.
    (g) Equip containers with suitable corrosion protection.
    (h) Prepare and maintain at the facility a written procedure within 
the Plan for inspecting and testing pollution prevention equipment and 
systems.
    (i) Conduct testing and inspection of the pollution prevention 
equipment and systems at the facility on a scheduled periodic basis, 
commensurate with the complexity, conditions, and circumstances of the 
facility and any other appropriate regulations. You must use simulated 
discharges for testing and inspecting human and equipment pollution 
control and countermeasure systems.
    (j) Describe in detailed records surface and subsurface well shut-in 
valves and devices in use at the facility for each well sufficiently to 
determine their method of activation or control, such as pressure 
differential, change in fluid or flow conditions, combination of 
pressure and flow, manual or remote control mechanisms.
    (k) Install a BOP assembly and well control system during workover 
operations and before drilling below any casing string. The BOP assembly 
and well control system must be capable of controlling any well-head 
pressure that may be encountered while the BOP assembly and well control 
system are on the well.
    (l) Equip all manifolds (headers) with check valves on individual 
flowlines.
    (m) Equip the flowline with a high pressure sensing device and shut-
in valve at the wellhead if the shut-in well pressure is greater than 
the working pressure of the flowline and manifold valves up to and 
including the header valves. Alternatively you may provide a pressure 
relief system for flowlines.
    (n) Protect all piping appurtenant to the facility from corrosion, 
such as with protective coatings or cathodic protection.
    (o) Adequately protect sub-marine piping appurtenant to the facility 
against environmental stresses and other activities such as fishing 
operations.
    (p) Maintain sub-marine piping appurtenant to the facility in good 
operating condition at all times. You must periodically and according to 
a schedule inspect or test such piping for failures. You must document 
and keep a record of such inspections or tests at the facility.



 Subpart C_Requirements for Animal Fats and Oils and Greases, and Fish 

  and Marine Mammal Oils; and for Vegetable Oils, including Oils from 

                    Seeds, Nuts, Fruits, and Kernels.

    Source: 67 FR 57149, July 17, 2002, unless otherwise noted.



Sec. 112.12  Spill Prevention, Control, and Countermeasure Plan requirements.

    If you are the owner or operator of an onshore facility, you must:
    (a) Meet the general requirements for the Plan listed under Sec. 
112.7, and the specific discharge prevention and containment procedures 
listed in this section.
    (b) Facility drainage. (1) Restrain drainage from diked storage 
areas by valves to prevent a discharge into the drainage system or 
facility effluent treatment system, except where facility systems are 
designed to control such discharge. You may empty diked areas by pumps 
or ejectors; however, you must manually activate these pumps or ejectors 
and must inspect the condition of the accumulation before starting, to 
ensure no oil will be discharged.

[[Page 43]]

    (2) Use valves of manual, open-and-closed design, for the drainage 
of diked areas. You may not use flapper-type drain valves to drain diked 
areas. If your facility drainage drains directly into a watercourse and 
not into an on-site wastewater treatment plant, you must inspect and may 
drain uncontaminated retained stormwater, subject to the requirements of 
paragraphs (c)(3)(ii), (iii), and (iv) of this section.
    (3) Design facility drainage systems from undiked areas with a 
potential for a discharge (such as where piping is located outside 
containment walls or where tank truck discharges may occur outside the 
loading area) to flow into ponds, lagoons, or catchment basins designed 
to retain oil or return it to the facility. You must not locate 
catchment basins in areas subject to periodic flooding.
    (4) If facility drainage is not engineered as in paragraph (b)(3) of 
this section, equip the final discharge of all ditches inside the 
facility with a diversion system that would, in the event of an 
uncontrolled discharge, retain oil in the facility.
    (5) Where drainage waters are treated in more than one treatment 
unit and such treatment is continuous, and pump transfer is needed, 
provide two ``lift'' pumps and permanently install at least one of the 
pumps. Whatever techniques you use, you must engineer facility drainage 
systems to prevent a discharge as described in Sec. 112.1(b) in case 
there is an equipment failure or human error at the facility.
    (c) Bulk storage containers. (1) Not use a container for the storage 
of oil unless its material and construction are compatible with the 
material stored and conditions of storage such as pressure and 
temperature.
    (2) Construct all bulk storage tank installations (except mobile 
refuelers and other non-transportation-related tank trucks) so that you 
provide a secondary means of containment for the entire capacity of the 
largest single container and sufficient freeboard to contain 
precipitation. You must ensure that diked areas are sufficiently 
impervious to contain discharged oil. Dikes, containment curbs, and pits 
are commonly employed for this purpose. You may also use an alternative 
system consisting of a drainage trench enclosure that must be arranged 
so that any discharge will terminate and be safely confined in a 
facility catchment basin or holding pond.
    (3) Not allow drainage of uncontaminated rainwater from the diked 
area into a storm drain or discharge of an effluent into an open 
watercourse, lake, or pond, bypassing the facility treatment system 
unless you:
    (i) Normally keep the bypass valve sealed closed.
    (ii) Inspect the retained rainwater to ensure that its presence will 
not cause a discharge as described in Sec. 112.1(b).
    (iii) Open the bypass valve and reseal it following drainage under 
responsible supervision; and
    (iv) Keep adequate records of such events, for example, any records 
required under permits issued in accordance with Sec. Sec. 122.41(j)(2) 
and 122.41(m)(3) of this chapter.
    (4) Protect any completely buried metallic storage tank installed on 
or after January 10, 1974 from corrosion by coatings or cathodic 
protection compatible with local soil conditions. You must regularly 
leak test such completely buried metallic storage tanks.
    (5) Not use partially buried or bunkered metallic tanks for the 
storage of oil, unless you protect the buried section of the tank from 
corrosion. You must protect partially buried and bunkered tanks from 
corrosion by coatings or cathodic protection compatible with local soil 
conditions.
    (6) Bulk storage container inspections.
    (i) Except for containers that meet the criteria provided in 
paragraph (c)(6)(ii) of this section, test or inspect each aboveground 
container for integrity on a regular schedule and whenever you make 
material repairs. You must determine, in accordance with industry 
standards, the appropriate qualifications for personnel performing tests 
and inspections, the frequency and type of testing and inspections, 
which take into account container size, configuration, and design (such 
as containers that are: shop-built, field-erected, skid-mounted, 
elevated, equipped with a liner, double-walled, or partially buried). 
Examples of these integrity

[[Page 44]]

tests include, but are not limited to: Visual inspection, hydrostatic 
testing, radiographic testing, ultrasonic testing, acoustic emissions 
testing, or other systems of non-destructive testing. You must keep 
comparison records and you must also inspect the container's supports 
and foundations. In addition, you must frequently inspect the outside of 
the container for signs of deterioration, discharges, or accumulation of 
oil inside diked areas. Records of inspections and tests kept under 
usual and customary business practices satisfy the recordkeeping 
requirements of this paragraph.
    (ii) For bulk storage containers that are subject to 21 CFR part 
110, are elevated, constructed of austenitic stainless steel, have no 
external insulation, and are shop-fabricated, conduct formal visual 
inspection on a regular schedule. In addition, you must frequently 
inspect the outside of the container for signs of deterioration, 
discharges, or accumulation of oil inside diked areas. You must 
determine and document in the Plan the appropriate qualifications for 
personnel performing tests and inspections. Records of inspections and 
tests kept under usual and customary business practices satisfy the 
recordkeeping requirements of this paragraph (c)(6).
    (7) Control leakage through defective internal heating coils by 
monitoring the steam return and exhaust lines for contamination from 
internal heating coils that discharge into an open watercourse, or pass 
the steam return or exhaust lines through a settling tank, skimmer, or 
other separation or retention system.
    (8) Engineer or update each container installation in accordance 
with good engineering practice to avoid discharges. You must provide at 
least one of the following devices:
    (i) High liquid level alarms with an audible or visual signal at a 
constantly attended operation or surveillance station. In smaller 
facilities an audible air vent may suffice.
    (ii) High liquid level pump cutoff devices set to stop flow at a 
predetermined container content level.
    (iii) Direct audible or code signal communication between the 
container gauger and the pumping station.
    (iv) A fast response system for determining the liquid level of each 
bulk storage container such as digital computers, telepulse, or direct 
vision gauges. If you use this alternative, a person must be present to 
monitor gauges and the overall filling of bulk storage containers.
    (v) You must regularly test liquid level sensing devices to ensure 
proper operation.
    (9) Observe effluent treatment facilities frequently enough to 
detect possible system upsets that could cause a discharge as described 
in Sec. 112.1(b).
    (10) Promptly correct visible discharges which result in a loss of 
oil from the container, including but not limited to seams, gaskets, 
piping, pumps, valves, rivets, and bolts. You must promptly remove any 
accumulations of oil in diked areas.
    (11) Position or locate mobile or portable oil storage containers to 
prevent a discharge as described in Sec. 112.1(b). Except for mobile 
refuelers and other non-transportation-related tank trucks, you must 
furnish a secondary means of containment, such as a dike or catchment 
basin, sufficient to contain the capacity of the largest single 
compartment or container with sufficient freeboard to contain 
precipitation.
    (d) Facility transfer operations, pumping, and facility process. (1) 
Provide buried piping that is installed or replaced on or after August 
16, 2002, with a protective wrapping and coating. You must also 
cathodically protect such buried piping installations or otherwise 
satisfy the corrosion protection standards for piping in part 280 of 
this chapter or a State program approved under part 281 of this chapter. 
If a section of buried line is exposed for any reason, you must 
carefully inspect it for deterioration. If you find corrosion damage, 
you must undertake additional examination and corrective action as 
indicated by the magnitude of the damage.
    (2) Cap or blank-flange the terminal connection at the transfer 
point and mark it as to origin when piping is not in service or is in 
standby service for an extended time.
    (3) Properly design pipe supports to minimize abrasion and corrosion 
and allow for expansion and contraction.

[[Page 45]]

    (4) Regularly inspect all aboveground valves, piping, and 
appurtenances. During the inspection you must assess the general 
condition of items, such as flange joints, expansion joints, valve 
glands and bodies, catch pans, pipeline supports, locking of valves, and 
metal surfaces. You must also conduct integrity and leak testing of 
buried piping at the time of installation, modification, construction, 
relocation, or replacement.
    (5) Warn all vehicles entering the facility to be sure that no 
vehicle will endanger aboveground piping or other oil transfer 
operations.

[67 FR 57149, July 17, 2002, as amended at 71 FR 77293, Dec. 26, 2006; 
73 FR 74305, Dec. 5, 2008]



Sec. Sec. 112.13-112.15  [Reserved]



                     Subpart D_Response Requirements



Sec. 112.20  Facility response plans.

    (a) The owner or operator of any non-transportation-related onshore 
facility that, because of its location, could reasonably be expected to 
cause substantial harm to the environment by discharging oil into or on 
the navigable waters or adjoining shorelines shall prepare and submit a 
facility response plan to the Regional Administrator, according to the 
following provisions:
    (1) For the owner or operator of a facility in operation on or 
before February 18, 1993 who is required to prepare and submit a 
response plan under 33 U.S.C. 1321(j)(5), the Oil Pollution Act of 1990 
(Pub. L. 101-380, 33 U.S.C. 2701 et seq.) requires the submission of a 
response plan that satisfies the requirements of 33 U.S.C. 1321(j)(5) no 
later than February 18, 1993.
    (i) The owner or operator of an existing facility that was in 
operation on or before February 18, 1993 who submitted a response plan 
by February 18, 1993 shall revise the response plan to satisfy the 
requirements of this section and resubmit the response plan or updated 
portions of the response plan to the Regional Administrator by February 
18, 1995.
    (ii) The owner or operator of an existing facility in operation on 
or before February 18, 1993 who failed to submit a response plan by 
February 18, 1993 shall prepare and submit a response plan that 
satisfies the requirements of this section to the Regional Administrator 
before August 30, 1994.
    (2) The owner or operator of a facility in operation on or after 
August 30, 1994 that satisfies the criteria in paragraph (f)(1) of this 
section or that is notified by the Regional Administrator pursuant to 
paragraph (b) of this section shall prepare and submit a facility 
response plan that satisfies the requirements of this section to the 
Regional Administrator.
    (i) For a facility that commenced operations after February 18, 1993 
but prior to August 30, 1994, and is required to prepare and submit a 
response plan based on the criteria in paragraph (f)(1) of this section, 
the owner or operator shall submit the response plan or updated portions 
of the response plan, along with a completed version of the response 
plan cover sheet contained in appendix F to this part, to the Regional 
Administrator prior to August 30, 1994.
    (ii) For a newly constructed facility that commences operation after 
August 30, 1994, and is required to prepare and submit a response plan 
based on the criteria in paragraph (f)(1) of this section, the owner or 
operator shall submit the response plan, along with a completed version 
of the response plan cover sheet contained in appendix F to this part, 
to the Regional Administrator prior to the start of operations 
(adjustments to the response plan to reflect changes that occur at the 
facility during the start-up phase of operations must be submitted to 
the Regional Administrator after an operational trial period of 60 
days).
    (iii) For a facility required to prepare and submit a response plan 
after August 30, 1994, as a result of a planned change in design, 
construction, operation, or maintenance that renders the facility 
subject to the criteria in paragraph (f)(1) of this section, the owner 
or operator shall submit the response plan, along with a completed 
version of the response plan cover sheet contained in appendix F to this 
part, to the Regional Administrator before the portion of the facility 
undergoing

[[Page 46]]

change commences operations (adjustments to the response plan to reflect 
changes that occur at the facility during the start-up phase of 
operations must be submitted to the Regional Administrator after an 
operational trial period of 60 days).
    (iv) For a facility required to prepare and submit a response plan 
after August 30, 1994, as a result of an unplanned event or change in 
facility characteristics that renders the facility subject to the 
criteria in paragraph (f)(1) of this section, the owner or operator 
shall submit the response plan, along with a completed version of the 
response plan cover sheet contained in appendix F to this part, to the 
Regional Administrator within six months of the unplanned event or 
change.
    (3) In the event the owner or operator of a facility that is 
required to prepare and submit a response plan uses an alternative 
formula that is comparable to one contained in appendix C to this part 
to evaluate the criterion in paragraph (f)(1)(ii)(B) or (f)(1)(ii)(C) of 
this section, the owner or operator shall attach documentation to the 
response plan cover sheet contained in appendix F to this part that 
demonstrates the reliability and analytical soundness of the alternative 
formula.
    (4) Preparation and submission of response plans--Animal fat and 
vegetable oil facilities. The owner or operator of any non-
transportation-related facility that handles, stores, or transports 
animal fats and vegetable oils must prepare and submit a facility 
response plan as follows:
    (i) Facilities with approved plans. The owner or operator of a 
facility with a facility response plan that has been approved under 
paragraph (c) of this section by July 31, 2000 need not prepare or 
submit a revised plan except as otherwise required by paragraphs (b), 
(c), or (d) of this section.
    (ii) Facilities with plans that have been submitted to the Regional 
Administrator. Except for facilities with approved plans as provided in 
paragraph (a)(4)(i) of this section, the owner or operator of a facility 
that has submitted a response plan to the Regional Administrator prior 
to July 31, 2000 must review the plan to determine if it meets or 
exceeds the applicable provisions of this part. An owner or operator 
need not prepare or submit a new plan if the existing plan meets or 
exceeds the applicable provisions of this part. If the plan does not 
meet or exceed the applicable provisions of this part, the owner or 
operator must prepare and submit a new plan by September 28, 2000.
    (iii) Newly regulated facilities. The owner or operator of a newly 
constructed facility that commences operation after July 31, 2000 must 
prepare and submit a plan to the Regional Administrator in accordance 
with paragraph (a)(2)(ii) of this section. The plan must meet or exceed 
the applicable provisions of this part. The owner or operator of an 
existing facility that must prepare and submit a plan after July 31, 
2000 as a result of a planned or unplanned change in facility 
characteristics that causes the facility to become regulated under 
paragraph (f)(1) of this section, must prepare and submit a plan to the 
Regional Administrator in accordance with paragraph (a)(2)(iii) or (iv) 
of this section, as appropriate. The plan must meet or exceed the 
applicable provisions of this part.
    (iv) Facilities amending existing plans. The owner or operator of a 
facility submitting an amended plan in accordance with paragraph (d) of 
this section after July 31, 2000, including plans that had been 
previously approved, must also review the plan to determine if it meets 
or exceeds the applicable provisions of this part. If the plan does not 
meet or exceed the applicable provisions of this part, the owner or 
operator must revise and resubmit revised portions of an amended plan to 
the Regional Administrator in accordance with paragraph (d) of this 
section, as appropriate. The plan must meet or exceed the applicable 
provisions of this part.
    (b)(1) The Regional Administrator may at any time require the owner 
or operator of any non-transportation-related onshore facility to 
prepare and submit a facility response plan under this section after 
considering the factors in paragraph (f)(2) of this section. If such a 
determination is made, the Regional Administrator shall notify

[[Page 47]]

the facility owner or operator in writing and shall provide a basis for 
the determination. If the Regional Administrator notifies the owner or 
operator in writing of the requirement to prepare and submit a response 
plan under this section, the owner or operator of the facility shall 
submit the response plan to the Regional Administrator within six months 
of receipt of such written notification.
    (2) The Regional Administrator shall review plans submitted by such 
facilities to determine whether the facility could, because of its 
location, reasonably be expected to cause significant and substantial 
harm to the environment by discharging oil into or on the navigable 
waters or adjoining shorelines.
    (c) The Regional Administrator shall determine whether a facility 
could, because of its location, reasonably be expected to cause 
significant and substantial harm to the environment by discharging oil 
into or on the navigable waters or adjoining shorelines, based on the 
factors in paragraph (f)(3) of this section. If such a determination is 
made, the Regional Administrator shall notify the owner or operator of 
the facility in writing and:
    (1) Promptly review the facility response plan;
    (2) Require amendments to any response plan that does not meet the 
requirements of this section;
    (3) Approve any response plan that meets the requirements of this 
section; and
    (4) Review each response plan periodically thereafter on a schedule 
established by the Regional Administrator provided that the period 
between plan reviews does not exceed five years.
    (d)(1) The owner or operator of a facility for which a response plan 
is required under this part shall revise and resubmit revised portions 
of the response plan within 60 days of each facility change that 
materially may affect the response to a worst case discharge, including:
    (i) A change in the facility's configuration that materially alters 
the information included in the response plan;
    (ii) A change in the type of oil handled, stored, or transferred 
that materially alters the required response resources;
    (iii) A material change in capabilities of the oil spill removal 
organization(s) that provide equipment and personnel to respond to 
discharges of oil described in paragraph (h)(5) of this section;
    (iv) A material change in the facility's spill prevention and 
response equipment or emergency response procedures; and
    (v) Any other changes that materially affect the implementation of 
the response plan.
    (2) Except as provided in paragraph (d)(1) of this section, 
amendments to personnel and telephone number lists included in the 
response plan and a change in the oil spill removal organization(s) that 
does not result in a material change in support capabilities do not 
require approval by the Regional Administrator. Facility owners or 
operators shall provide a copy of such changes to the Regional 
Administrator as the revisions occur.
    (3) The owner or operator of a facility that submits changes to a 
response plan as provided in paragraph (d)(1) or (d)(2) of this section 
shall provide the EPA-issued facility identification number (where one 
has been assigned) with the changes.
    (4) The Regional Administrator shall review for approval changes to 
a response plan submitted pursuant to paragraph (d)(1) of this section 
for a facility determined pursuant to paragraph (f)(3) of this section 
to have the potential to cause significant and substantial harm to the 
environment.
    (e) If the owner or operator of a facility determines pursuant to 
paragraph (a)(2) of this section that the facility could not, because of 
its location, reasonably be expected to cause substantial harm to the 
environment by discharging oil into or on the navigable waters or 
adjoining shorelines, the owner or operator shall complete and maintain 
at the facility the certification form contained in appendix C to this 
part and, in the event an alternative formula that is comparable to one 
contained in appendix C to this part is used to evaluate the criterion 
in paragraph (f)(1)(ii)(B) or (f)(1)(ii)(C) of this section, the owner 
or operator

[[Page 48]]

shall attach documentation to the certification form that demonstrates 
the reliability and analytical soundness of the comparable formula and 
shall notify the Regional Administrator in writing that an alternative 
formula was used.
    (f)(1) A facility could, because of its location, reasonably be 
expected to cause substantial harm to the environment by discharging oil 
into or on the navigable waters or adjoining shorelines pursuant to 
paragraph (a)(2) of this section, if it meets any of the following 
criteria applied in accordance with the flowchart contained in 
attachment C-I to appendix C to this part:
    (i) The facility transfers oil over water to or from vessels and has 
a total oil storage capacity greater than or equal to 42,000 gallons; or
    (ii) The facility's total oil storage capacity is greater than or 
equal to 1 million gallons, and one of the following is true:
    (A) The facility does not have secondary containment for each 
aboveground storage area sufficiently large to contain the capacity of 
the largest aboveground oil storage tank within each storage area plus 
sufficient freeboard to allow for precipitation;
    (B) The facility is located at a distance (as calculated using the 
appropriate formula in appendix C to this part or a comparable formula) 
such that a discharge from the facility could cause injury to fish and 
wildlife and sensitive environments. For further description of fish and 
wildlife and sensitive environments, see Appendices I, II, and III of 
the ``Guidance for Facility and Vessel Response Plans: Fish and Wildlife 
and Sensitive Environments'' (see Appendix E to this part, section 13, 
for availability) and the applicable Area Contingency Plan prepared 
pursuant to section 311(j)(4) of the Clean Water Act;
    (C) The facility is located at a distance (as calculated using the 
appropriate formula in appendix C to this part or a comparable formula) 
such that a discharge from the facility would shut down a public 
drinking water intake; or
    (D) The facility has had a reportable oil discharge in an amount 
greater than or equal to 10,000 gallons within the last 5 years.
    (2)(i) To determine whether a facility could, because of its 
location, reasonably be expected to cause substantial harm to the 
environment by discharging oil into or on the navigable waters or 
adjoining shorelines pursuant to paragraph (b) of this section, the 
Regional Administrator shall consider the following:
    (A) Type of transfer operation;
    (B) Oil storage capacity;
    (C) Lack of secondary containment;
    (D) Proximity to fish and wildlife and sensitive environments and 
other areas determined by the Regional Administrator to possess 
ecological value;
    (E) Proximity to drinking water intakes;
    (F) Spill history; and
    (G) Other site-specific characteristics and environmental factors 
that the Regional Administrator determines to be relevant to protecting 
the environment from harm by discharges of oil into or on navigable 
waters or adjoining shorelines.
    (ii) Any person, including a member of the public or any 
representative from a Federal, State, or local agency who believes that 
a facility subject to this section could, because of its location, 
reasonably be expected to cause substantial harm to the environment by 
discharging oil into or on the navigable waters or adjoining shorelines 
may petition the Regional Administrator to determine whether the 
facility meets the criteria in paragraph (f)(2)(i) of this section. Such 
petition shall include a discussion of how the factors in paragraph 
(f)(2)(i) of this section apply to the facility in question. The RA 
shall consider such petitions and respond in an appropriate amount of 
time.
    (3) To determine whether a facility could, because of its location, 
reasonably be expected to cause significant and substantial harm to the 
environment by discharging oil into or on the navigable waters or 
adjoining shorelines, the Regional Administrator may consider the 
factors in paragraph (f)(2) of this section as well as the following:
    (i) Frequency of past discharges;
    (ii) Proximity to navigable waters;
    (iii) Age of oil storage tanks; and

[[Page 49]]

    (iv) Other facility-specific and Region-specific information, 
including local impacts on public health.
    (g)(1) All facility response plans shall be consistent with the 
requirements of the National Oil and Hazardous Substance Pollution 
Contingency Plan (40 CFR part 300) and applicable Area Contingency Plans 
prepared pursuant to section 311(j)(4) of the Clean Water Act. The 
facility response plan should be coordinated with the local emergency 
response plan developed by the local emergency planning committee under 
section 303 of Title III of the Superfund Amendments and Reauthorization 
Act of 1986 (42 U.S.C. 11001 et seq.). Upon request, the owner or 
operator should provide a copy of the facility response plan to the 
local emergency planning committee or State emergency response 
commission.
    (2) The owner or operator shall review relevant portions of the 
National Oil and Hazardous Substances Pollution Contingency Plan and 
applicable Area Contingency Plan annually and, if necessary, revise the 
facility response plan to ensure consistency with these plans.
    (3) The owner or operator shall review and update the facility 
response plan periodically to reflect changes at the facility.
    (h) A response plan shall follow the format of the model facility-
specific response plan included in appendix F to this part, unless you 
have prepared an equivalent response plan acceptable to the Regional 
Administrator to meet State or other Federal requirements. A response 
plan that does not follow the specified format in appendix F to this 
part shall have an emergency response action plan as specified in 
paragraphs (h)(1) of this section and be supplemented with a cross-
reference section to identify the location of the elements listed in 
paragraphs (h)(2) through (h)(10) of this section. To meet the 
requirements of this part, a response plan shall address the following 
elements, as further described in appendix F to this part:
    (1) Emergency response action plan. The response plan shall include 
an emergency response action plan in the format specified in paragraphs 
(h)(1)(i) through (viii) of this section that is maintained in the front 
of the response plan, or as a separate document accompanying the 
response plan, and that includes the following information:
    (i) The identity and telephone number of a qualified individual 
having full authority, including contracting authority, to implement 
removal actions;
    (ii) The identity of individuals or organizations to be contacted in 
the event of a discharge so that immediate communications between the 
qualified individual identified in paragraph (h)(1) of this section and 
the appropriate Federal officials and the persons providing response 
personnel and equipment can be ensured;
    (iii) A description of information to pass to response personnel in 
the event of a reportable discharge;
    (iv) A description of the facility's response equipment and its 
location;
    (v) A description of response personnel capabilities, including the 
duties of persons at the facility during a response action and their 
response times and qualifications;
    (vi) Plans for evacuation of the facility and a reference to 
community evacuation plans, as appropriate;
    (vii) A description of immediate measures to secure the source of 
the discharge, and to provide adequate containment and drainage of 
discharged oil; and
    (viii) A diagram of the facility.
    (2) Facility information. The response plan shall identify and 
discuss the location and type of the facility, the identity and tenure 
of the present owner and operator, and the identity of the qualified 
individual identified in paragraph (h)(1) of this section.
    (3) Information about emergency response. The response plan shall 
include:
    (i) The identity of private personnel and equipment necessary to 
remove to the maximum extent practicable a worst case discharge and 
other discharges of oil described in paragraph (h)(5) of this section, 
and to mitigate or prevent a substantial threat of a worst case 
discharge (To identify response resources to meet the facility response 
plan requirements of this section, owners or operators shall follow 
Appendix E to this part or, where not appropriate, shall clearly 
demonstrate in the response plan why use of Appendix E of

[[Page 50]]

this part is not appropriate at the facility and make comparable 
arrangements for response resources);
    (ii) Evidence of contracts or other approved means for ensuring the 
availability of such personnel and equipment;
    (iii) The identity and the telephone number of individuals or 
organizations to be contacted in the event of a discharge so that 
immediate communications between the qualified individual identified in 
paragraph (h)(1) of this section and the appropriate Federal official 
and the persons providing response personnel and equipment can be 
ensured;
    (iv) A description of information to pass to response personnel in 
the event of a reportable discharge;
    (v) A description of response personnel capabilities, including the 
duties of persons at the facility during a response action and their 
response times and qualifications;
    (vi) A description of the facility's response equipment, the 
location of the equipment, and equipment testing;
    (vii) Plans for evacuation of the facility and a reference to 
community evacuation plans, as appropriate;
    (viii) A diagram of evacuation routes; and
    (ix) A description of the duties of the qualified individual 
identified in paragraph (h)(1) of this section, that include:
    (A) Activate internal alarms and hazard communication systems to 
notify all facility personnel;
    (B) Notify all response personnel, as needed;
    (C) Identify the character, exact source, amount, and extent of the 
release, as well as the other items needed for notification;
    (D) Notify and provide necessary information to the appropriate 
Federal, State, and local authorities with designated response roles, 
including the National Response Center, State Emergency Response 
Commission, and Local Emergency Planning Committee;
    (E) Assess the interaction of the discharged substance with water 
and/or other substances stored at the facility and notify response 
personnel at the scene of that assessment;
    (F) Assess the possible hazards to human health and the environment 
due to the release. This assessment must consider both the direct and 
indirect effects of the release (i.e., the effects of any toxic, 
irritating, or asphyxiating gases that may be generated, or the effects 
of any hazardous surface water runoffs from water or chemical agents 
used to control fire and heat-induced explosion);
    (G) Assess and implement prompt removal actions to contain and 
remove the substance released;
    (H) Coordinate rescue and response actions as previously arranged 
with all response personnel;
    (I) Use authority to immediately access company funding to initiate 
cleanup activities; and
    (J) Direct cleanup activities until properly relieved of this 
responsibility.
    (4) Hazard evaluation. The response plan shall discuss the 
facility's known or reasonably identifiable history of discharges 
reportable under 40 CFR part 110 for the entire life of the facility and 
shall identify areas within the facility where discharges could occur 
and what the potential effects of the discharges would be on the 
affected environment. To assess the range of areas potentially affected, 
owners or operators shall, where appropriate, consider the distance 
calculated in paragraph (f)(1)(ii) of this section to determine whether 
a facility could, because of its location, reasonably be expected to 
cause substantial harm to the environment by discharging oil into or on 
the navigable waters or adjoining shorelines.
    (5) Response planning levels. The response plan shall include 
discussion of specific planning scenarios for:
    (i) A worst case discharge, as calculated using the appropriate 
worksheet in appendix D to this part. In cases where the Regional 
Administrator determines that the worst case discharge volume calculated 
by the facility is not appropriate, the Regional Administrator may 
specify the worst case discharge amount to be used for response planning 
at the facility. For complexes, the worst case planning quantity shall 
be the larger of the amounts calculated for each component of the 
facility;

[[Page 51]]

    (ii) A discharge of 2,100 gallons or less, provided that this amount 
is less than the worst case discharge amount. For complexes, this 
planning quantity shall be the larger of the amounts calculated for each 
component of the facility; and
    (iii) A discharge greater than 2,100 gallons and less than or equal 
to 36,000 gallons or 10 percent of the capacity of the largest tank at 
the facility, whichever is less, provided that this amount is less than 
the worst case discharge amount. For complexes, this planning quantity 
shall be the larger of the amounts calculated for each component of the 
facility.
    (6) Discharge detection systems. The response plan shall describe 
the procedures and equipment used to detect discharges.
    (7) Plan implementation. The response plan shall describe:
    (i) Response actions to be carried out by facility personnel or 
contracted personnel under the response plan to ensure the safety of the 
facility and to mitigate or prevent discharges described in paragraph 
(h)(5) of this section or the substantial threat of such discharges;
    (ii) A description of the equipment to be used for each scenario;
    (iii) Plans to dispose of contaminated cleanup materials; and
    (iv) Measures to provide adequate containment and drainage of 
discharged oil.
    (8) Self-inspection, drills/exercises, and response training. The 
response plan shall include:
    (i) A checklist and record of inspections for tanks, secondary 
containment, and response equipment;
    (ii) A description of the drill/exercise program to be carried out 
under the response plan as described in Sec. 112.21;
    (iii) A description of the training program to be carried out under 
the response plan as described in Sec. 112.21; and
    (iv) Logs of discharge prevention meetings, training sessions, and 
drills/exercises. These logs may be maintained as an annex to the 
response plan.
    (9) Diagrams. The response plan shall include site plan and drainage 
plan diagrams.
    (10) Security systems. The response plan shall include a description 
of facility security systems.
    (11) Response plan cover sheet. The response plan shall include a 
completed response plan cover sheet provided in section 2.0 of appendix 
F to this part.
    (i)(1) In the event the owner or operator of a facility does not 
agree with the Regional Administrator's determination that the facility 
could, because of its location, reasonably be expected to cause 
substantial harm or significant and substantial harm to the environment 
by discharging oil into or on the navigable waters or adjoining 
shorelines, or that amendments to the facility response plan are 
necessary prior to approval, such as changes to the worst case discharge 
planning volume, the owner or operator may submit a request for 
reconsideration to the Regional Administrator and provide additional 
information and data in writing to support the request. The request and 
accompanying information must be submitted to the Regional Administrator 
within 60 days of receipt of notice of the Regional Administrator's 
original decision. The Regional Administrator shall consider the request 
and render a decision as rapidly as practicable.
    (2) In the event the owner or operator of a facility believes a 
change in the facility's classification status is warranted because of 
an unplanned event or change in the facility's characteristics (i.e., 
substantial harm or significant and substantial harm), the owner or 
operator may submit a request for reconsideration to the Regional 
Administrator and provide additional information and data in writing to 
support the request. The Regional Administrator shall consider the 
request and render a decision as rapidly as practicable.
    (3) After a request for reconsideration under paragraph (i)(1) or 
(i)(2) of this section has been denied by the Regional Administrator, an 
owner or operator may appeal a determination made by the Regional 
Administrator. The appeal shall be made to the EPA Administrator and 
shall be made in writing within 60 days of receipt of the

[[Page 52]]

decision from the Regional Administrator that the request for 
reconsideration was denied. A complete copy of the appeal must be sent 
to the Regional Administrator at the time the appeal is made. The appeal 
shall contain a clear and concise statement of the issues and points of 
fact in the case. It also may contain additional information from the 
owner or operator, or from any other person. The EPA Administrator may 
request additional information from the owner or operator, or from any 
other person. The EPA Administrator shall render a decision as rapidly 
as practicable and shall notify the owner or operator of the decision.

[59 FR 34098, July 1, 1994, as amended at 65 FR 40798, June 30, 2000; 66 
FR 34560, June 29, 2001; 67 FR 47151, July 17, 2002]



Sec. 112.21  Facility response training and drills/exercises.

    (a) The owner or operator of any facility required to prepare a 
facility response plan under Sec. 112.20 shall develop and implement a 
facility response training program and a drill/exercise program that 
satisfy the requirements of this section. The owner or operator shall 
describe the programs in the response plan as provided in Sec. 
112.20(h)(8).
    (b) The facility owner or operator shall develop a facility response 
training program to train those personnel involved in oil spill response 
activities. It is recommended that the training program be based on the 
USCG's Training Elements for Oil Spill Response, as applicable to 
facility operations. An alternative program can also be acceptable 
subject to approval by the Regional Administrator.
    (1) The owner or operator shall be responsible for the proper 
instruction of facility personnel in the procedures to respond to 
discharges of oil and in applicable oil spill response laws, rules, and 
regulations.
    (2) Training shall be functional in nature according to job tasks 
for both supervisory and non-supervisory operational personnel.
    (3) Trainers shall develop specific lesson plans on subject areas 
relevant to facility personnel involved in oil spill response and 
cleanup.
    (c) The facility owner or operator shall develop a program of 
facility response drills/exercises, including evaluation procedures. A 
program that follows the National Preparedness for Response Exercise 
Program (PREP) (see appendix E to this part, section 13, for 
availability) will be deemed satisfactory for purposes of this section. 
An alternative program can also be acceptable subject to approval by the 
Regional Administrator.

[59 FR 34101, July 1, 1994, as amended at 65 FR 40798, June 30, 2000]



Sec. 112.22  Temporary Suspension of Response Planning Level Requirements to 

Support Deepwater Horizon Spill Response.

    (a) Applicability. This section applies to any person who owns or 
operates--
    (1) Any facility described in Sec. 112.20 of this part, who has 
contracted with any oil spill removal organization (OSRO), as defined in 
Sec. 112.2 of this part, where the OSRO's response resources, as 
required under 112.20(h)(3) and Appendix E, Sections 4.0 and 5.0, are 
deployed in support of the response to the Deepwater Horizon Spill of 
National Significance; and
    (2) Any facility described in Sec. 112.20 of this part, who owns, 
operates, or has under direct control, response resources, as required 
under 112.20(h)(3) and Appendix E, Sections 4.0 and 5.0, deployed in 
support of the response to the Deepwater Horizon Spill of National 
Significance.
    (b) Suspension of certain response planning level requirements. From 
June 30, 2010 through December 31, 2010, facility response plan 
requirements relating to the identification of response equipment and 
its location and the stipulated response times, including the response 
times contained in any written contractual agreement with any OSRO, for 
the availability of response resources, as required under Sec. 
112.20(h)(3) and Appendix E, Sections 4.0 and 5.0, for a medium 
discharge as described in Sec. 112.20(h)(5)(iii) of this part, and for 
a worst case discharge over 2,100 gallons as described under Sec. 
112.20(h)(5)(i), are suspended. Changes to facility response plans due 
to relocation of response equipment in support of the response to the 
Deepwater Horizon Spill of National Significance, do not require a 
revision under Sec. 112.20(d).

[[Page 53]]

    (c) Other response time and response equipment identification and 
location requirements still effective. Response times and response 
equipment identification and location requirements required under Sec. 
112.20(h)(3) and Appendix E, Section 3.0 for a small discharge, as 
described in 112.20(h)(5)(ii), remain in effect.
    (d) Armed Forces installation planning factors. Armed Forces may 
revise Armed Forces installation response times and response equipment 
identification and location requirements below that which is necessary 
to respond to a small discharge, as described in 112.20(h)(5)(ii), at 
those installations that have deployed assets in support of the response 
to the Deepwater Horizon Spill of National Significance in response to a 
request from the On-Scene Coordinator, as defined in 40 CFR 300.5, for 
such assets.

[75 FR 37719, June 30, 2010]

    Effective Date Note: At 75 FR 37719, June 30, 2010, Sec. 112.22 was 
added, effective June 30, 2010 through December 31, 2010.



  Sec. Appendix A to Part 112--Memorandum of Understanding Between the 

 Secretary of Transportation and the Administrator of the Environmental 

                            Protection Agency

                         section ii--definitions

    The Environmental Protection Agency and the Department of 
Transportation agree that for the purposes of Executive Order 11548, the 
term:
    (1) Non-transportation-related onshore and offshore facilities 
means:
    (A) Fixed onshore and offshore oil well drilling facilities 
including all equipment and appurtenances related thereto used in 
drilling operations for exploratory or development wells, but excluding 
any terminal facility, unit or process integrally associated with the 
handling or transferring of oil in bulk to or from a vessel.
    (B) Mobile onshore and offshore oil well drilling platforms, barges, 
trucks, or other mobile facilities including all equipment and 
appurtenances related thereto when such mobile facilities are fixed in 
position for the purpose of drilling operations for exploratory or 
development wells, but excluding any terminal facility, unit or process 
integrally associated with the handling or transferring of oil in bulk 
to or from a vessel.
    (C) Fixed onshore and offshore oil production structures, platforms, 
derricks, and rigs including all equipment and appurtenances related 
thereto, as well as completed wells and the wellhead separators, oil 
separators, and storage facilities used in the production of oil, but 
excluding any terminal facility, unit or process integrally associated 
with the handling or transferring of oil in bulk to or from a vessel.
    (D) Mobile onshore and offshore oil production facilities including 
all equipment and appurtenances related thereto as well as completed 
wells and wellhead equipment, piping from wellheads to oil separators, 
oil separators, and storage facilities used in the production of oil 
when such mobile facilities are fixed in position for the purpose of oil 
production operations, but excluding any terminal facility, unit or 
process integrally associated with the handling or transferring of oil 
in bulk to or from a vessel.
    (E) Oil refining facilities including all equipment and 
appurtenances related thereto as well as in-plant processing units, 
storage units, piping, drainage systems and waste treatment units used 
in the refining of oil, but excluding any terminal facility, unit or 
process integrally associated with the handling or transferring of oil 
in bulk to or from a vessel.
    (F) Oil storage facilities including all equipment and appurtenances 
related thereto as well as fixed bulk plant storage, terminal oil 
storage facilities, consumer storage, pumps and drainage systems used in 
the storage of oil, but excluding inline or breakout storage tanks 
needed for the continuous operation of a pipeline system and any 
terminal facility, unit or process integrally associated with the 
handling or transferring of oil in bulk to or from a vessel.
    (G) Industrial, commercial, agricultural or public facilities which 
use and store oil, but excluding any terminal facility, unit or process 
integrally associated with the handling or transferring of oil in bulk 
to or from a vessel.
    (H) Waste treatment facilities including in-plant pipelines, 
effluent discharge lines, and storage tanks, but excluding waste 
treatment facilities located on vessels and terminal storage tanks and 
appurtenances for the reception of oily ballast water or tank washings 
from vessels and associated systems used for off-loading vessels.
    (I) Loading racks, transfer hoses, loading arms and other equipment 
which are appurtenant to a nontransportation-related facility or 
terminal facility and which are used to transfer oil in bulk to or from 
highway vehicles or railroad cars.
    (J) Highway vehicles and railroad cars which are used for the 
transport of oil exclusively within the confines of a nontransportation-
related facility and which are not intended to transport oil in 
interstate or intrastate commerce.

[[Page 54]]

    (K) Pipeline systems which are used for the transport of oil 
exclusively within the confines of a nontransportation-related facility 
or terminal facility and which are not intended to transport oil in 
interstate or intrastate commerce, but excluding pipeline systems used 
to transfer oil in bulk to or from a vessel.
    (2) Transportation-related onshore and offshore facilities means:
    (A) Onshore and offshore terminal facilities including transfer 
hoses, loading arms and other equipment and appurtenances used for the 
purpose of handling or transferring oil in bulk to or from a vessel as 
well as storage tanks and appurtenances for the reception of oily 
ballast water or tank washings from vessels, but excluding terminal 
waste treatment facilities and terminal oil storage facilities.
    (B) Transfer hoses, loading arms and other equipment appurtenant to 
a non-transportation-related facility which is used to transfer oil in 
bulk to or from a vessel.
    (C) Interstate and intrastate onshore and offshore pipeline systems 
including pumps and appurtenances related thereto as well as in-line or 
breakout storage tanks needed for the continuous operation of a pipeline 
system, and pipelines from onshore and offshore oil production 
facilities, but excluding onshore and offshore piping from wellheads to 
oil separators and pipelines which are used for the transport of oil 
exclusively within the confines of a nontransportation-related facility 
or terminal facility and which are not intended to transport oil in 
interstate or intrastate commerce or to transfer oil in bulk to or from 
a vessel.
    (D) Highway vehicles and railroad cars which are used for the 
transport of oil in interstate or intrastate commerce and the equipment 
and appurtenances related thereto, and equipment used for the fueling of 
locomotive units, as well as the rights-of-way on which they operate. 
Excluded are highway vehicles and railroad cars and motive power used 
exclusively within the confines of a nontransportation-related facility 
or terminal facility and which are not intended for use in interstate or 
intrastate commerce.



   Sec. Appendix B to Part 112--Memorandum of Understanding Among the 

      Secretary of the Interior, Secretary of Transportation, and 

          Administrator of the Environmental Protection Agency

                                 Purpose

    This Memorandum of Understanding (MOU) establishes the 
jurisdictional responsibilities for offshore facilities, including 
pipelines, pursuant to section 311 (j)(1)(c), (j)(5), and (j)(6)(A) of 
the Clean Water Act (CWA), as amended by the Oil Pollution Act of 1990 
(Public Law 101-380). The Secretary of the Department of the Interior 
(DOI), Secretary of the Department of Transportation (DOT), and 
Administrator of the Environmental Protection Agency (EPA) agree to the 
division of responsibilities set forth below for spill prevention and 
control, response planning, and equipment inspection activities pursuant 
to those provisions.

                               Background

    Executive Order (E.O.) 12777 (56 FR 54757) delegates to DOI, DOT, 
and EPA various responsibilities identified in section 311(j) of the 
CWA. Sections 2(b)(3), 2(d)(3), and 2(e)(3) of E.O. 12777 assigned to 
DOI spill prevention and control, contingency planning, and equipment 
inspection activities associated with offshore facilities. Section 
311(a)(11) defines the term ``offshore facility'' to include facilities 
of any kind located in, on, or under navigable waters of the United 
States. By using this definition, the traditional DOI role of regulating 
facilities on the Outer Continental Shelf is expanded by E.O. 12777 to 
include inland lakes, rivers, streams, and any other inland waters.

                            Responsibilities

    Pursuant to section 2(i) of E.O. 12777, DOI redelegates, and EPA and 
DOT agree to assume, the functions vested in DOI by sections 2(b)(3), 
2(d)(3), and 2(e)(3) of E.O. 12777 as set forth below. For purposes of 
this MOU, the term ``coast line'' shall be defined as in the Submerged 
Lands Act (43 U.S.C. 1301(c)) to mean ``the line of ordinary low water 
along that portion of the coast which is in direct contact with the open 
sea and the line marking the seaward limit of inland waters.''
    1. To EPA, DOI redelegates responsibility for non-transportation-
related offshore facilities located landward of the coast line.
    2. To DOT, DOI redelegates responsibility for transportation-related 
facilities, including pipelines, located landward of the coast line. The 
DOT retains jurisdiction for deepwater ports and their associated 
seaward pipelines, as delegated by E.O. 12777.
    3. The DOI retains jurisdiction over facilities, including 
pipelines, located seaward of the coast line, except for deepwater ports 
and associated seaward pipelines delegated by E.O. 12777 to DOT.

                             Effective Date

    This MOU is effective on the date of the final execution by the 
indicated signatories.

                               Limitations

    1. The DOI, DOT, and EPA may agree in writing to exceptions to this 
MOU on a facility-specific basis. Affected parties will receive 
notification of the exceptions.

[[Page 55]]

    2. Nothing in this MOU is intended to replace, supersede, or modify 
any existing agreements between or among DOI, DOT, or EPA.

                      Modification and Termination

    Any party to this agreement may propose modifications by submitting 
them in writing to the heads of the other agency/department. No 
modification may be adopted except with the consent of all parties. All 
parties shall indicate their consent to or disagreement with any 
proposed modification within 60 days of receipt. Upon the request of any 
party, representatives of all parties shall meet for the purpose of 
considering exceptions or modifications to this agreement. This MOU may 
be terminated only with the mutual consent of all parties.

    Dated: November 8, 1993.
Bruce Babbitt,
    Secretary of the Interior.
    Dated: December 14, 1993.
Federico Pe[ntilde]a,
    Secretary of Transportation.
    Dated: February 3, 1994.
Carol M. Browner,
    Administrator, Environmental Protection Agency.

[59 FR 34102, July 1, 1994]



         Sec. Appendix C to Part 112--Substantial Harm Criteria

                            1.0 Introduction

    The flowchart provided in Attachment C-I to this appendix shows the 
decision tree with the criteria to identify whether a facility ``could 
reasonably be expected to cause substantial harm to the environment by 
discharging into or on the navigable waters or adjoining shorelines.'' 
In addition, the Regional Administrator has the discretion to identify 
facilities that must prepare and submit facility-specific response plans 
to EPA.

                             1.1 Definitions

    1.1.1 Great Lakes means Lakes Superior, Michigan, Huron, Erie, and 
Ontario, their connecting and tributary waters, the Saint Lawrence River 
as far as Saint Regis, and adjacent port areas.
    1.1.2 Higher Volume Port Areas include
    (1) Boston, MA;
    (2) New York, NY;
    (3) Delaware Bay and River to Philadelphia, PA;
    (4) St. Croix, VI;
    (5) Pascagoula, MS;
    (6) Mississippi River from Southwest Pass, LA to Baton Rouge, LA;
    (7) Louisiana Offshore Oil Port (LOOP), LA;
    (8) Lake Charles, LA;
    (9) Sabine-Neches River, TX;
    (10) Galveston Bay and Houston Ship Channel, TX;
    (11) Corpus Christi, TX;
    (12) Los Angeles/Long Beach Harbor, CA;
    (13) San Francisco Bay, San Pablo Bay, Carquinez Strait, and Suisun 
Bay to Antioch, CA;
    (14) Straits of Juan de Fuca from Port Angeles, WA to and including 
Puget Sound, WA;
    (15) Prince William Sound, AK; and
    (16) Others as specified by the Regional Administrator for any EPA 
Region.
    1.1.3 Inland Area means the area shoreward of the boundary lines 
defined in 46 CFR part 7, except in the Gulf of Mexico. In the Gulf of 
Mexico, it means the area shoreward of the lines of demarcation (COLREG 
lines as defined in 33 CFR 80.740-80.850). The inland area does not 
include the Great Lakes.
    1.1.4 Rivers and Canals means a body of water confined within the 
inland area, including the Intracoastal Waterways and other waterways 
artificially created for navigating that have project depths of 12 feet 
or less.

2.0 Description of Screening Criteria for the Substantial Harm Flowchart

    A facility that has the potential to cause substantial harm to the 
environment in the event of a discharge must prepare and submit a 
facility-specific response plan to EPA in accordance with Appendix F to 
this part. A description of the screening criteria for the substantial 
harm flowchart is provided below:
    2.1 Non-Transportation-Related Facilities With a Total Oil Storage 
Capacity Greater Than or Equal to 42,000 Gallons Where Operations 
Include Over-Water Transfers of Oil. A non-transportation-related 
facility with a total oil storage capacity greater than or equal to 
42,000 gallons that transfers oil over water to or from vessels must 
submit a response plan to EPA. Daily oil transfer operations at these 
types of facilities occur between barges and vessels and onshore bulk 
storage tanks over open water. These facilities are located adjacent to 
navigable water.
    2.2 Lack of Adequate Secondary Containment at Facilities With a 
Total Oil Storage Capacity Greater Than or Equal to 1 Million Gallons. 
Any facility with a total oil storage capacity greater than or equal to 
1 million gallons without secondary containment sufficiently large to 
contain the capacity of the largest aboveground oil storage tank within 
each area plus sufficient freeboard to allow for precipitation must 
submit a response plan to EPA. Secondary containment structures that 
meet the standard of good engineering practice for the purposes of this 
part include berms, dikes, retaining walls, curbing, culverts, gutters, 
or other drainage systems.

[[Page 56]]

    2.3 Proximity to Fish and Wildlife and Sensitive Environments at 
Facilities With a Total Oil Storage Capacity Greater Than or Equal to 1 
Million Gallons. A facility with a total oil storage capacity greater 
than or equal to 1 million gallons must submit its response plan if it 
is located at a distance such that a discharge from the facility could 
cause injury (as defined at 40 CFR 112.2) to fish and wildlife and 
sensitive environments. For further description of fish and wildlife and 
sensitive environments, see Appendices I, II, and III to DOC/NOAA's 
``Guidance for Facility and Vessel Response Plans: Fish and Wildlife and 
Sensitive Environments'' (see Appendix E to this part, section 13, for 
availability) and the applicable Area Contingency Plan. Facility owners 
or operators must determine the distance at which an oil discharge could 
cause injury to fish and wildlife and sensitive environments using the 
appropriate formula presented in Attachment C-III to this appendix or a 
comparable formula.
    2.4 Proximity to Public Drinking Water Intakes at Facilities with a 
Total Oil Storage Capacity Greater than or Equal to 1 Million Gallons A 
facility with a total oil storage capacity greater than or equal to 1 
million gallons must submit its response plan if it is located at a 
distance such that a discharge from the facility would shut down a 
public drinking water intake, which is analogous to a public water 
system as described at 40 CFR 143.2(c). The distance at which an oil 
discharge from an SPCC-regulated facility would shut down a public 
drinking water intake shall be calculated using the appropriate formula 
presented in Attachment C-III to this appendix or a comparable formula.
    2.5 Facilities That Have Experienced Reportable Oil Discharges in an 
Amount Greater Than or Equal to 10,000 Gallons Within the Past 5 Years 
and That Have a Total Oil Storage Capacity Greater Than or Equal to 1 
Million Gallons. A facility's oil spill history within the past 5 years 
shall be considered in the evaluation for substantial harm. Any facility 
with a total oil storage capacity greater than or equal to 1 million 
gallons that has experienced a reportable oil discharge in an amount 
greater than or equal to 10,000 gallons within the past 5 years must 
submit a response plan to EPA.

   3.0 Certification for Facilities That Do Not Pose Substantial Harm

    If the facility does not meet the substantial harm criteria listed 
in Attachment C-I to this appendix, the owner or operator shall complete 
and maintain at the facility the certification form contained in 
Attachment C-II to this appendix. In the event an alternative formula 
that is comparable to the one in this appendix is used to evaluate the 
substantial harm criteria, the owner or operator shall attach 
documentation to the certification form that demonstrates the 
reliability and analytical soundness of the comparable formula and shall 
notify the Regional Administrator in writing that an alternative formula 
was used.

                             4.0 References

    Chow, V.T. 1959. Open Channel Hydraulics. McGraw Hill.
    USCG IFR (58 FR 7353, February 5, 1993). This document is available 
through EPA's rulemaking docket as noted in Appendix E to this part, 
section 13.

[[Page 57]]

                        Attachments to Appendix C
[GRAPHIC] [TIFF OMITTED] TR30JN00.061


[[Page 58]]



 Attachment C-II--Certification of the Applicability of the Substantial 
                              Harm Criteria

Facility Name:__________________________________________________________
Facility Address:_______________________________________________________
    1. Does the facility transfer oil over water to or from vessels and 
does the facility have a total oil storage capacity greater than or 
equal to 42,000 gallons?
    Yes ------ No ------
    2. Does the facility have a total oil storage capacity greater than 
or equal to 1 million gallons and does the facility lack secondary 
containment that is sufficiently large to contain the capacity of the 
largest aboveground oil storage tank plus sufficient freeboard to allow 
for precipitation within any aboveground oil storage tank area?
    Yes ------ No ------
    3. Does the facility have a total oil storage capacity greater than 
or equal to 1 million gallons and is the facility located at a distance 
(as calculated using the appropriate formula in Attachment C-III to this 
appendix or a comparable formula \1\) such that a discharge from the 
facility could cause injury to fish and wildlife and sensitive 
environments? For further description of fish and wildlife and sensitive 
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for 
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive 
Environments'' (see Appendix E to this part, section 13, for 
availability) and the applicable Area Contingency Plan.
    Yes ------ No ------
    4. Does the facility have a total oil storage capacity greater than 
or equal to 1 million gallons and is the facility located at a distance 
(as calculated using the appropriate formula in Attachment C-III to this 
appendix or a comparable formula \1\) such that a discharge from the 
facility would shut down a public drinking water intake \2\ ?
---------------------------------------------------------------------------

    \1\ If a comparable formula is used, documentation of the 
reliability and analytical soundness of the comparable formula must be 
attached to this form.
    \2\ For the purposes of 40 CFR part 112, public drinking water 
intakes are analogous to public water systems as described at 40 CFR 
143.2(c).
---------------------------------------------------------------------------

    Yes ------ No ------
    5. Does the facility have a total oil storage capacity greater than 
or equal to 1 million gallons and has the facility experienced a 
reportable oil discharge in an amount greater than or equal to 10,000 
gallons within the last 5 years?
    Yes ------ No ------

                              Certification

    I certify under penalty of law that I have personally examined and 
am familiar with the information submitted in this document, and that 
based on my inquiry of those individuals responsible for obtaining this 
information, I believe that the submitted information is true, accurate, 
and complete.
________________________________________________________________________
Signature

________________________________________________________________________
Name (please type or print)

________________________________________________________________________
Title

________________________________________________________________________
Date

         Attachment C-III--Calculation of the Planning Distance

                            1.0 Introduction

    1.1 The facility owner or operator must evaluate whether the 
facility is located at a distance such that a discharge from the 
facility could cause injury to fish and wildlife and sensitive 
environments or disrupt operations at a public drinking water intake. To 
quantify that distance, EPA considered oil transport mechanisms over 
land and on still, tidal influence, and moving navigable waters. EPA has 
determined that the primary concern for calculation of a planning 
distance is the transport of oil in navigable waters during adverse 
weather conditions. Therefore, two formulas have been developed to 
determine distances for planning purposes from the point of discharge at 
the facility to the potential site of impact on moving and still waters, 
respectively. The formula for oil transport on moving navigable water is 
based on the velocity of the water body and the time interval for 
arrival of response resources. The still water formula accounts for the 
spread of discharged oil over the surface of the water. The method to 
determine oil transport on tidal influence areas is based on the type of 
oil discharged and the distance down current during ebb tide and up 
current during flood tide to the point of maximum tidal influence.
    1.2 EPA's formulas were designed to be simple to use. However, 
facility owners or operators may calculate planning distances using more 
sophisticated formulas, which take into account broader scientific or 
engineering principles, or local conditions. Such comparable formulas 
may result in different planning distances than EPA's formulas. In the 
event that an alternative formula that is comparable to one contained in 
this appendix is used to evaluate the criterion in 40 CFR 
112.20(f)(1)(ii)(B) or (f)(1)(ii)(C), the owner or operator shall attach 
documentation to the response plan cover sheet contained in Appendix F 
to this part that demonstrates the reliability and analytical soundness 
of the alternative formula and shall notify the Regional Administrator 
in

[[Page 59]]

writing that an alternative formula was used. \1\
---------------------------------------------------------------------------

    \1\ For persistent oils or non-persistent oils, a worst case 
trajectory model (i.e., an alternative formula) may be substituted for 
the distance formulas described in still, moving, and tidal waters, 
subject to Regional Administrator's review of the model. An example of 
an alternative formula that is comparable to the one contained in this 
appendix would be a worst case trajectory calculation based on credible 
adverse winds, currents, and/or river stages, over a range of seasons, 
weather conditions, and river stages. Based on historical information or 
a spill trajectory model, the Agency may require that additional fish 
and wildlife and sensitive environments or public drinking water intakes 
also be protected.
---------------------------------------------------------------------------

    1.3 A regulated facility may meet the criteria for the potential to 
cause substantial harm to the environment without having to perform a 
planning distance calculation. For facilities that meet the substantial 
harm criteria because of inadequate secondary containment or oil spill 
history, as listed in the flowchart in Attachment C-I to this appendix, 
calculation of the planning distance is unnecessary. For facilities that 
do not meet the substantial harm criteria for secondary containment or 
oil spill history as listed in the flowchart, calculation of a planning 
distance for proximity to fish and wildlife and sensitive environments 
and public drinking water intakes is required, unless it is clear 
without performing the calculation (e.g., the facility is located in a 
wetland) that these areas would be impacted.
    1.4 A facility owner or operator who must perform a planning 
distance calculation on navigable water is only required to do so for 
the type of navigable water conditions (i.e., moving water, still water, 
or tidal- influenced water) applicable to the facility. If a facility 
owner or operator determines that more than one type of navigable water 
condition applies, then the facility owner or operator is required to 
perform a planning distance calculation for each navigable water type to 
determine the greatest single distance that oil may be transported. As a 
result, the final planning distance for oil transport on water shall be 
the greatest individual distance rather than a summation of each 
calculated planning distance.
    1.5 The planning distance formula for transport on moving waterways 
contains three variables: the velocity of the navigable water (v), the 
response time interval (t), and a conversion factor (c). The velocity, 
v, is determined by using the Chezy-Manning equation, which, in this 
case, models the flood flow rate of water in open channels. The Chezy-
Manning equation contains three variables which must be determined by 
facility owners or operators. Manning's Roughness Coefficient (for flood 
flow rates), n, can be determined from Table 1 of this attachment. The 
hydraulic radius, r, can be estimated using the average mid-channel 
depth from charts provided by the sources listed in Table 2 of this 
attachment. The average slope of the river, s, can be determined using 
topographic maps that can be ordered from the U.S. Geological Survey, as 
listed in Table 2 of this attachment.
    1.6 Table 3 of this attachment contains specified time intervals for 
estimating the arrival of response resources at the scene of a 
discharge. Assuming no prior planning, response resources should be able 
to arrive at the discharge site within 12 hours of the discovery of any 
oil discharge in Higher Volume Port Areas and within 24 hours in Great 
Lakes and all other river, canal, inland, and nearshore areas. The 
specified time intervals in Table 3 of Appendix C are to be used only to 
aid in the identification of whether a facility could cause substantial 
harm to the environment. Once it is determined that a plan must be 
developed for the facility, the owner or operator shall reference 
Appendix E to this part to determine appropriate resource levels and 
response times. The specified time intervals of this appendix include a 
3-hour time period for deployment of boom and other response equipment. 
The Regional Administrator may identify additional areas as appropriate.

              2.0 Oil Transport on Moving Navigable Waters

    2.1 The facility owner or operator must use the following formula or 
a comparable formula as described in Sec. 112.20(a)(3) to calculate the 
planning distance for oil transport on moving navigable water:

d=vxtxc; where
d: the distance downstream from a facility within which fish and 
wildlife and sensitive environments could be injured or a public 
drinking water intake would be shut down in the event of an oil 
discharge (in miles);
v: the velocity of the river/navigable water of concern (in ft/sec) as 
determined by Chezy-Manning's equation (see below and Tables 1 and 2 of 
this attachment);
t: the time interval specified in Table 3 based upon the type of water 
body and location (in hours); and
c: constant conversion factor 0.68 sec[omega] mile/hr[omega] ft (3600 
sec/hr / 5280 ft/mile).
    2.2 Chezy-Manning's equation is used to determine velocity:
v=1.5/nxr\2/3\xs\1/2\; where
v=the velocity of the river of concern (in ft/sec);
n=Manning's Roughness Coefficient from Table 1 of this attachment;
r=the hydraulic radius; the hydraulic radius can be approximated for 
parabolic channels by multiplying the average mid-channel depth of the 
river (in feet) by 0.667

[[Page 60]]

(sources for obtaining the mid-channel depth are listed in Table 2 of 
this attachment); and
s=the average slope of the river (unitless) obtained from U.S. 
Geological Survey topographic maps at the address listed in Table 2 of 
this attachment.

      Table 1--Manning's Roughness Coefficient for Natural Streams
 [Note: Coefficients are presented for high flow rates at or near flood
                                 stage.]
------------------------------------------------------------------------
                                                              Roughness
                     Stream description                      coefficient
                                                                 (n)
------------------------------------------------------------------------
             Minor Streams (Top Width <100 ft.)
Clean:
  Straight.................................................        0.03
  Winding..................................................        0.04
Sluggish (Weedy, deep pools):
  No trees or brush........................................        0.06
  Trees and/or brush.......................................        0.10
        Major Streams (Top Width 100 ft.)
Regular section:
  (No boulders/brush)......................................       0.035
Irregular section:
  (Brush)..................................................        0.05
------------------------------------------------------------------------

       Table 2--Sources of r and s for the Chezy-Manning Equation

All of the charts and related publications for navigational waters may 
be ordered from:
Distribution Branch
(N/CG33)
National Ocean Service
Riverdale, Maryland 20737-1199
Phone: (301) 436-6990
There will be a charge for materials ordered and a VISA or Mastercard 
will be accepted.
The mid-channel depth to be used in the calculation of the hydraulic 
radius (r) can be obtained directly from the following sources:
Charts of Canadian Coastal and Great Lakes Waters:
Canadian Hydrographic Service
Department of Fisheries and Oceans Institute
P.O. Box 8080
1675 Russell Road
Ottawa, Ontario KIG 3H6
Canada
Phone: (613) 998-4931
Charts and Maps of Lower Mississippi River
(Gulf of Mexico to Ohio River and St. Francis, White, Big Sunflower, 
Atchafalaya, and other rivers):
U.S. Army Corps of Engineers
Vicksburg District
P.O. Box 60
Vicksburg, Mississippi 39180
Phone: (601) 634-5000
Charts of Upper Mississippi River and Illinois Waterway to Lake 
Michigan:
U.S. Army Corps of Engineers
Rock Island District
P.O. Box 2004
Rock Island, Illinois 61204
Phone: (309) 794-5552
Charts of Missouri River:
U.S. Army Corps of Engineers
Omaha District
6014 U.S. Post Office and Courthouse
Omaha, Nebraska 68102
Phone: (402) 221-3900
Charts of Ohio River:
U.S. Army Corps of Engineers
Ohio River Division
P.O. Box 1159
Cincinnati, Ohio 45201
Phone: (513) 684-3002
Charts of Tennessee Valley Authority Reservoirs, Tennessee River and 
Tributaries:
Tennessee Valley Authority
Maps and Engineering Section
416 Union Avenue
Knoxville, Tennessee 37902
Phone: (615) 632-2921
Charts of Black Warrior River, Alabama River, Tombigbee River, 
Apalachicola River and Pearl River:
U.S. Army Corps of Engineers
Mobile District
P.O. Box 2288
Mobile, Alabama 36628-0001
Phone: (205) 690-2511
The average slope of the river (s) may be obtained from topographic 
maps:
U.S. Geological Survey
Map Distribution
Federal Center
Bldg. 41
Box 25286
Denver, Colorado 80225
Additional information can be obtained from the following sources:
1. The State's Department of Natural Resources (DNR) or the State's Aids 
to Navigation office;
2. A knowledgeable local marina operator; or
3. A knowledgeable local water authority (e.g., State water commission)

    2.3 The average slope of the river (s) can be determined from the 
topographic maps using the following steps:
    (1) Locate the facility on the map.
    (2) Find the Normal Pool Elevation at the point of discharge from 
the facility into the water (A).
    (3) Find the Normal Pool Elevation of the public drinking water 
intake or fish and wildlife and sensitive environment located downstream 
(B) (Note: The owner or operator should use a minimum of 20 miles 
downstream as a cutoff to obtain the average slope if the location of a 
specific public drinking water intake or fish and wildlife and sensitive 
environment is unknown).
    (4) If the Normal Pool Elevation is not available, the elevation 
contours can be used to find the slope. Determine elevation of the water 
at the point of discharge from the facility (A). Determine the elevation 
of the

[[Page 61]]

water at the appropriate distance downstream (B). The formula presented 
below can be used to calculate the slope.
    (5) Determine the distance (in miles) between the facility and the 
public drinking water intake or fish and wildlife and sensitive 
environments (C).
    (6) Use the following formula to find the slope, which will be a 
unitless value: Average Slope=[(A-B) (ft)/C (miles)] x [1 mile/5280 
feet]
    2.4 If it is not feasible to determine the slope and mid-channel 
depth by the Chezy-Manning equation, then the river velocity can be 
approximated on- site. A specific length, such as 100 feet, can be 
marked off along the shoreline. A float can be dropped into the stream 
above the mark, and the time required for the float to travel the 
distance can be used to determine the velocity in feet per second. 
However, this method will not yield an average velocity for the length 
of the stream, but a velocity only for the specific location of 
measurement. In addition, the flow rate will vary depending on weather 
conditions such as wind and rainfall. It is recommended that facility 
owners or operators repeat the measurement under a variety of conditions 
to obtain the most accurate estimate of the surface water velocity under 
adverse weather conditions.
    2.5 The planning distance calculations for moving and still 
navigable waters are based on worst case discharges of persistent oils. 
Persistent oils are of concern because they can remain in the water for 
significant periods of time and can potentially exist in large 
quantities downstream. Owners or operators of facilities that store 
persistent as well as non-persistent oils may use a comparable formula. 
The volume of oil discharged is not included as part of the planning 
distance calculation for moving navigable waters. Facilities that will 
meet this substantial harm criterion are those with facility capacities 
greater than or equal to 1 million gallons. It is assumed that these 
facilities are capable of having an oil discharge of sufficient quantity 
to cause injury to fish and wildlife and sensitive environments or shut 
down a public drinking water intake. While owners or operators of 
transfer facilities that store greater than or equal to 42,000 gallons 
are not required to use a planning distance formula for purposes of the 
substantial harm criteria, they should use a planning distance 
calculation in the development of facility-specific response plans.

                    Table 3--Specified Time Intervals
------------------------------------------------------------------------
                                              Substantial harm planning
              Operating areas                        time (hrs)
------------------------------------------------------------------------
Higher volume port area...................  12 hour arrival+3 hour
                                             deployment=15 hours.
Great Lakes...............................  24 hour arrival+3 hour
                                             deployment=27 hours.
All other rivers and canals, inland, and    24 hour arrival+3 hour
 nearshore areas.                            deployment=27 hours.
------------------------------------------------------------------------

    2.6 Example of the Planning Distance Calculation for Oil Transport 
on Moving Navigable Waters. The following example provides a sample 
calculation using the planning distance formula for a facility 
discharging oil into the Monongahela River:
    (1) Solve for v by evaluating n, r, and s for the Chezy-Manning 
equation:
    Find the roughness coefficient, n, on Table 1 of this attachment for 
a regular section of a major stream with a top width greater than 100 
feet. The top width of the river can be found from the topographic map.

n=0.035.
Find slope, s, where A=727 feet, B=710 feet, and C=25 miles.

Solving:
s=[(727 ft-1710 ft)/25 miles]x[1 mile/5280 feet]=1.3x10-4
    The average mid-channel depth is found by averaging the mid-channel 
depth for each mile along the length of the river between the facility 
and the public drinking water intake or the fish or wildlife or 
sensitive environment (or 20 miles downstream if applicable). This value 
is multiplied by 0.667 to obtain the hydraulic radius. The mid-channel 
depth is found by obtaining values for r and s from the sources shown in 
Table 2 for the Monongahela River.

Solving:
r=0.667x20 feet=13.33 feet
Solve for v using:
v=1.5/nxr2/3xs1/2:
v=[1.5/0.035]x(13.33)2/3x(1.3x10-4)1/2
v=2.73 feet/second

    (2) Find t from Table 3 of this attachment. The Monongahela River's 
resource response time is 27 hours.
    (3) Solve for planning distance, d:

d=vxtxc
d=(2.73 ft/sec)x(27 hours)x(0.68 sec[omega] mile/hr[omega] ft)
d=50 miles

Therefore, 50 miles downstream is the appropriate planning distance for 
this facility.

                    3.0 Oil Transport on Still Water

    3.1 For bodies of water including lakes or ponds that do not have a 
measurable velocity, the spreading of the oil over the surface must be 
considered. Owners or operators of facilities located next to still 
water bodies may use a comparable means of calculating

[[Page 62]]

the planning distance. If a comparable formula is used, documentation of 
the reliability and analytical soundness of the comparable calculation 
must be attached to the response plan cover sheet.
    3.2 Example of the Planning Distance Calculation for Oil Transport 
on Still Water. To assist those facilities which could potentially 
discharge into a still body of water, the following analysis was 
performed to provide an example of the type of formula that may be used 
to calculate the planning distance. For this example, a worst case 
discharge of 2,000,000 gallons is used.
    (1) The surface area in square feet covered by an oil discharge on 
still water, A1, can be determined by the following formula, \2\ where V 
is the volume of the discharge in gallons and C is a constant conversion 
factor:
---------------------------------------------------------------------------

    \2\ Huang, J.C. and Monastero, F.C., 1982. Review of the State-of-
the-Art of Oil Pollution Models. Final report submitted to the American 
Petroleum Institute by Raytheon Ocean Systems, Co., East Providence, 
Rhode Island.
---------------------------------------------------------------------------

A1=10\5\xV\3/4\xC
C=0.1643
A1=10\5\x(2,000,000 gallons)\3/4\x(0.1643)
A1=8.74x10\8\ ft\2\
    (2) The spreading formula is based on the theoretical condition that 
the oil will spread uniformly in all directions forming a circle. In 
reality, the outfall of the discharge will direct the oil to the surface 
of the water where it intersects the shoreline. Although the oil will 
not spread uniformly in all directions, it is assumed that the discharge 
will spread from the shoreline into a semi-circle (this assumption does 
not account for winds or wave action).
    (3) The area of a circle=[dagger] r\2\
    (4) To account for the assumption that oil will spread in a semi-
circular shape, the area of a circle is divided by 2 and is designated 
as A2.

A2=([dagger] r\2\)/2
Solving for the radius, r, using the relationship 
A1=A2: 8.74x10\8\ ft\2\=([dagger]\2\)/2
Therefore, r=23,586 ft
r=23,586 ft/5,280 ft/mile=4.5 miles
Assuming a 20 knot wind under storm conditions:
1 knot=1.15 miles/hour
20 knotsx1.15 miles/hour/knot=23 miles/hr
Assuming that the oil slick moves at 3 percent of the wind's speed: \3\
---------------------------------------------------------------------------

    \3\ Oil Spill Prevention & Control. National Spill Control School, 
Corpus Christi State University, Thirteenth Edition, May 1990.
---------------------------------------------------------------------------

23 miles/hourx0.03=0.69 miles/hour

    (5) To estimate the distance that the oil will travel, use the times 
required for response resources to arrive at different geographic 
locations as shown in Table 3 of this attachment.

For example:
For Higher Volume Port Areas: 15 hrsx0.69 miles/hr=10.4 miles
For Great Lakes and all other areas: 27 hrsx0.69 miles/hr=18.6 miles

    (6) The total distance that the oil will travel from the point of 
discharge, including the distance due to spreading, is calculated as 
follows:

Higher Volume Port Areas: d=10.4+4.5 miles or approximately 15 miles
Great Lakes and all other areas: d=18.6+4.5 miles or approximately 23 
miles

               4.0 Oil Transport on Tidal-Influence Areas

    4.1 The planning distance method for tidal influence navigable water 
is based on worst case discharges of persistent and non-persistent oils. 
Persistent oils are of primary concern because they can potentially 
cause harm over a greater distance. For persistent oils discharged into 
tidal waters, the planning distance is 15 miles from the facility down 
current during ebb tide and to the point of maximum tidal influence or 
15 miles, whichever is less, during flood tide.
    4.2 For non-persistent oils discharged into tidal waters, the 
planning distance is 5 miles from the facility down current during ebb 
tide and to the point of maximum tidal influence or 5 miles, whichever 
is less, during flood tide.
    4.3 Example of Determining the Planning Distance for Two Types of 
Navigable Water Conditions. Below is an example of how to determine the 
proper planning distance when a facility could impact two types of 
navigable water conditions: moving water and tidal water.
    (1) Facility X stores persistent oil and is located downstream from 
locks along a slow moving river which is affected by tides. The river 
velocity, v, is determined to be 0.5 feet/second from the Chezy-Manning 
equation used to calculate oil transport on moving navigable waters. The 
specified time interval, t, obtained from Table 3 of this attachment for 
river areas is 27 hours. Therefore, solving for the planning distance, 
d:

d=vxtxc
d=(0.5 ft/sec)x(27 hours)x(0.68 secmile/hrft)
d=9.18 miles.

    (2) However, the planning distance for maximum tidal influence down 
current during ebb tide is 15 miles, which is greater than the 
calculated 9.18 miles. Therefore, 15 miles downstream is the appropriate 
planning distance for this facility.

                       5.0 Oil Transport Over Land

    5.1 Facility owners or operators must evaluate the potential for oil 
to be transported over land to navigable waters of the United States. 
The owner or operator must evaluate the likelihood that portions of a 
worst case discharge would reach navigable

[[Page 63]]

waters via open channel flow or from sheet flow across the land, or be 
prevented from reaching navigable waters when trapped in natural or man-
made depressions excluding secondary containment structures.
    5.2 As discharged oil travels over land, it may enter a storm drain 
or open concrete channel intended for drainage. It is assumed that once 
oil reaches such an inlet, it will flow into the receiving navigable 
water. During a storm event, it is highly probable that the oil will 
either flow into the drainage structures or follow the natural contours 
of the land and flow into the navigable water. Expected minimum and 
maximum velocities are provided as examples of open concrete channel and 
pipe flow. The ranges listed below reflect minimum and maximum 
velocities used as design criteria. \4\ The calculation below 
demonstrates that the time required for oil to travel through a storm 
drain or open concrete channel to navigable water is negligible and can 
be considered instantaneous. The velocities are:
---------------------------------------------------------------------------

    \4\ The design velocities were obtained from Howard County, Maryland 
Department of Public Works' Storm Drainage Design Manual.
---------------------------------------------------------------------------

For open concrete channels:
maximum velocity=25 feet per second
minimum velocity=3 feet per second
For storm drains:
maximum velocity=25 feet per second
minimum velocity=2 feet per second

    5.3 Assuming a length of 0.5 mile from the point of discharge 
through an open concrete channel or concrete storm drain to a navigable 
water, the travel times (distance/velocity) are:

1.8 minutes at a velocity of 25 feet per second
14.7 minutes at a velocity of 3 feet per second
22.0 minutes for at a velocity of 2 feet per second

    5.4 The distances that shall be considered to determine the planning 
distance are illustrated in Figure C-I of this attachment. The relevant 
distances can be described as follows:

D1=Distance from the nearest opportunity for discharge, X1, 
to a storm drain or an open concrete channel leading to navigable water.
D2=Distance through the storm drain or open concrete channel to 
navigable water.
D3=Distance downstream from the outfall within which fish and wildlife 
and sensitive environments could be injured or a public drinking water 
intake would be shut down as determined by the planning distance 
formula.
D4=Distance from the nearest opportunity for discharge, X2, 
to fish and wildlife and sensitive environments not bordering navigable 
water.

    5.5 A facility owner or operator whose nearest opportunity for 
discharge is located within 0.5 mile of a navigable water must complete 
the planning distance calculation (D3) for the type of navigable water 
near the facility or use a comparable formula.
    5.6 A facility that is located at a distance greater than 0.5 mile 
from a navigable water must also calculate a planning distance (D3) if 
it is in close proximity (i.e., D1 is less than 0.5 mile and other 
factors are conducive to oil travel over land) to storm drains that flow 
to navigable waters. Factors to be considered in assessing oil transport 
over land to storm drains shall include the topography of the 
surrounding area, drainage patterns, man-made barriers (excluding 
secondary containment structures), and soil distribution and porosity. 
Storm drains or concrete drainage channels that are located in close 
proximity to the facility can provide a direct pathway to navigable 
waters, regardless of the length of the drainage pipe. If D1 is less 
than or equal to 0.5 mile, a discharge from the facility could pose 
substantial harm because the time to travel the distance from the storm 
drain to the navigable water (D2) is virtually instantaneous.
    5.7 A facility's proximity to fish and wildlife and sensitive 
environments not bordering a navigable water, as depicted as D4 in 
Figure C-I of this attachment, must also be considered, regardless of 
the distance from the facility to navigable waters. Factors to be 
considered in assessing oil transport over land to fish and wildlife and 
sensitive environments should include the topography of the surrounding 
area, drainage patterns, man-made barriers (excluding secondary 
containment structures), and soil distribution and porosity.
    5.8 If a facility is not found to pose substantial harm to fish and 
wildlife and sensitive environments not bordering navigable waters via 
oil transport on land, then supporting documentation should be 
maintained at the facility. However, such documentation should be 
submitted with the response plan if a facility is found to pose 
substantial harm.

[[Page 64]]

[GRAPHIC] [TIFF OMITTED] TC01MR92.010


[59 FR 34102, July 1, 1994, as amended at 65 FR 40798, June 30, 2000; 67 
FR 47152, July 17, 2002]

[[Page 65]]



  Sec. Appendix D to Part 112--Determination of a Worst Case Discharge 

                             Planning Volume

                            1.0 Instructions

    1.1 An owner or operator is required to complete this worksheet if 
the facility meets the criteria, as presented in Appendix C to this 
part, or it is determined by the RA that the facility could cause 
substantial harm to the environment. The calculation of a worst case 
discharge planning volume is used for emergency planning purposes, and 
is required in 40 CFR 112.20 for facility owners or operators who must 
prepare a response plan. When planning for the amount of resources and 
equipment necessary to respond to the worst case discharge planning 
volume, adverse weather conditions must be taken into consideration. An 
owner or operator is required to determine the facility's worst case 
discharge planning volume from either part A of this appendix for an 
onshore storage facility, or part B of this appendix for an onshore 
production facility. The worksheet considers the provision of adequate 
secondary containment at a facility.
    1.2 For onshore storage facilities and production facilities, 
permanently manifolded oil storage tanks are defined as tanks that are 
designed, installed, and/or operated in such a manner that the multiple 
tanks function as one storage unit (i.e., multiple tank volumes are 
equalized). In a worst case discharge scenario, a single failure could 
cause the discharge of the contents of more than one tank. The owner or 
operator must provide evidence in the response plan that tanks with 
common piping or piping systems are not operated as one unit. If such 
evidence is provided and is acceptable to the RA, the worst case 
discharge planning volume would be based on the capacity of the largest 
oil storage tank within a common secondary containment area or the 
largest oil storage tank within a single secondary containment area, 
whichever is greater. For permanently manifolded tanks that function as 
one oil storage unit, the worst case discharge planning volume would be 
based on the combined oil storage capacity of all manifolded tanks or 
the capacity of the largest single oil storage tank within a secondary 
containment area, whichever is greater. For purposes of this rule, 
permanently manifolded tanks that are separated by internal divisions 
for each tank are considered to be single tanks and individual 
manifolded tank volumes are not combined.
    1.3 For production facilities, the presence of exploratory wells, 
production wells, and oil storage tanks must be considered in the 
calculation. Part B of this appendix takes these additional factors into 
consideration and provides steps for their inclusion in the total worst 
case discharge planning volume. Onshore oil production facilities may 
include all wells, flowlines, separation equipment, storage facilities, 
gathering lines, and auxiliary non-transportation-related equipment and 
facilities in a single geographical oil or gas field operated by a 
single operator. Although a potential worst case discharge planning 
volume is calculated within each section of the worksheet, the final 
worst case amount depends on the risk parameter that results in the 
greatest volume.
    1.4 Marine transportation-related transfer facilities that contain 
fixed aboveground onshore structures used for bulk oil storage are 
jointly regulated by EPA and the U.S. Coast Guard (USCG), and are termed 
``complexes.'' Because the USCG also requires response plans from 
transportation-related facilities to address a worst case discharge of 
oil, a separate calculation for the worst case discharge planning volume 
for USCG-related facilities is included in the USCG IFR (see Appendix E 
to this part, section 13, for availability). All complexes that are 
jointly regulated by EPA and the USCG must compare both calculations for 
worst case discharge planning volume derived by using the EPA and USCG 
methodologies and plan for whichever volume is greater.

  PART A: WORST CASE DISCHARGE PLANNING VOLUME CALCULATION FOR ONSHORE 
                         STORAGE FACILITIES \1\
---------------------------------------------------------------------------

    \1\ ``Storage facilities'' represent all facilities subject to this 
part, excluding oil production facilities.
---------------------------------------------------------------------------

    Part A of this worksheet is to be completed by the owner or operator 
of an SPCC-regulated facility (excluding oil production facilities) if 
the facility meets the criteria as presented in Appendix C to this part, 
or if it is determined by the RA that the facility could cause 
substantial harm to the environment. If you are the owner or operator of 
a production facility, please proceed to part B of this worksheet.

                       A.1 SINGLE-TANK FACILITIES

    For facilities containing only one aboveground oil storage tank, the 
worst case discharge planning volume equals the capacity of the oil 
storage tank. If adequate secondary containment (sufficiently large to 
contain the capacity of the aboveground oil storage tank plus sufficient 
freeboard to allow for precipitation) exists for the oil storage tank, 
multiply the capacity of the tank by 0.8.
    (1) FINAL WORST CASE VOLUME: -------- GAL
    (2) Do not proceed further.

[[Page 66]]

           A.2 SECONDARY CONTAINMENT--MULTIPLE-TANK FACILITIES

    Are all aboveground oil storage tanks or groups of aboveground oil 
storage tanks at the facility without adequate secondary containment? 
\2\
---------------------------------------------------------------------------

    \2\ Secondary containment is described in 40 CFR part 112, subparts 
A through C. Acceptable methods and structures for containment are also 
given in 40 CFR 112.7(c)(1).
---------------------------------------------------------------------------

-------- (Y/N)

    A.2.1 If the answer is yes, the final worst case discharge planning 
volume equals the total aboveground oil storage capacity at the 
facility.
    (1) FINAL WORST CASE VOLUME: -------- GAL
    (2) Do not proceed further.
    A.2.2 If the answer is no, calculate the total aboveground oil 
storage capacity of tanks without adequate secondary containment. If all 
aboveground oil storage tanks or groups of aboveground oil storage tanks 
at the facility have adequate secondary containment, ENTER ``0'' (zero).

-------- GAL

    A.2.3 Calculate the capacity of the largest single aboveground oil 
storage tank within an adequate secondary containment area or the 
combined capacity of a group of aboveground oil storage tanks 
permanently manifolded together, whichever is greater, PLUS THE VOLUME 
FROM QUESTION A.2.2.
    FINAL WORST CASE VOLUME: \3\ -------- GAL
---------------------------------------------------------------------------

    \3\ All complexes that are jointly regulated by EPA and the USCG 
must also calculate the worst case discharge planning volume for the 
transportation-related portions of the facility and plan for whichever 
volume is greater.
---------------------------------------------------------------------------

  PART B: WORST CASE DISCHARGE PLANNING VOLUME CALCULATION FOR ONSHORE 
                          PRODUCTION FACILITIES

    Part B of this worksheet is to be completed by the owner or operator 
of an SPCC-regulated oil production facility if the facility meets the 
criteria presented in Appendix C to this part, or if it is determined by 
the RA that the facility could cause substantial harm. A production 
facility consists of all wells (producing and exploratory) and related 
equipment in a single geographical oil or gas field operated by a single 
operator.

                       B.1 SINGLE-TANK FACILITIES

    B.1.1 For facilities containing only one aboveground oil storage 
tank, the worst case discharge planning volume equals the capacity of 
the aboveground oil storage tank plus the production volume of the well 
with the highest output at the facility. If adequate secondary 
containment (sufficiently large to contain the capacity of the 
aboveground oil storage tank plus sufficient freeboard to allow for 
precipitation) exists for the storage tank, multiply the capacity of the 
tank by 0.8.
    B.1.2 For facilities with production wells producing by pumping, if 
the rate of the well with the highest output is known and the number of 
days the facility is unattended can be predicted, then the production 
volume is equal to the pumping rate of the well multiplied by the 
greatest number of days the facility is unattended.
    B.1.3 If the pumping rate of the well with the highest output is 
estimated or the maximum number of days the facility is unattended is 
estimated, then the production volume is determined from the pumping 
rate of the well multiplied by 1.5 times the greatest number of days 
that the facility has been or is expected to be unattended.
    B.1.4 Attachment D-1 to this appendix provides methods for 
calculating the production volume for exploratory wells and production 
wells producing under pressure.
    (1) FINAL WORST CASE VOLUME: -------- GAL
    (2) Do not proceed further.

           B.2 SECONDARY CONTAINMENT--MULTIPLE-TANK FACILITIES

    Are all aboveground oil storage tanks or groups of aboveground oil 
storage tanks at the facility without adequate secondary containment?

------ (Y/N)

    B.2.1 If the answer is yes, the final worst case volume equals the 
total aboveground oil storage capacity without adequate secondary 
containment plus the production volume of the well with the highest 
output at the facility.
    (1) For facilities with production wells producing by pumping, if 
the rate of the well with the highest output is known and the number of 
days the facility is unattended can be predicted, then the production 
volume is equal to the pumping rate of the well multiplied by the 
greatest number of days the facility is unattended.
    (2) If the pumping rate of the well with the highest output is 
estimated or the maximum number of days the facility is unattended is 
estimated, then the production volume is determined from the pumping 
rate of the well multiplied by 1.5 times the greatest number of days 
that the facility has been or is expected to be unattended.
    (3) Attachment D-1 to this appendix provides methods for calculating 
the production volumes for exploratory wells and production wells 
producing under pressure.
    (A) FINAL WORST CASE VOLUME: -------- GAL
    (B) Do not proceed further.

[[Page 67]]

    B.2.2 If the answer is no, calculate the total aboveground oil 
storage capacity of tanks without adequate secondary containment. If all 
aboveground oil storage tanks or groups of aboveground oil storage tanks 
at the facility have adequate secondary containment, ENTER ``0'' (zero).

-------- GAL

    B.2.3 Calculate the capacity of the largest single aboveground oil 
storage tank within an adequate secondary containment area or the 
combined capacity of a group of aboveground oil storage tanks 
permanently manifolded together, whichever is greater, plus the 
production volume of the well with the highest output, PLUS THE VOLUME 
FROM QUESTION B.2.2. Attachment D-1 provides methods for calculating the 
production volumes for exploratory wells and production wells producing 
under pressure.
    (1) FINAL WORST CASE VOLUME: \4\ -------- GAL
---------------------------------------------------------------------------

    \4\ All complexes that are jointly regulated by EPA and the USCG 
must also calculate the worst case discharge planning volume for the 
transportation-related portions of the facility and plan for whichever 
volume is greater.
---------------------------------------------------------------------------

    (2) Do not proceed further.

                        Attachments to Appendix D

 Attachment D-I--Methods To Calculate Production Volumes for Production 
 Facilities With Exploratory Wells or Production Wells Producing Under 
                                Pressure

                            1.0 Introduction

    The owner or operator of a production facility with exploratory 
wells or production wells producing under pressure shall compare the 
well rate of the highest output well (rate of well), in barrels per day, 
to the ability of response equipment and personnel to recover the volume 
of oil that could be discharged (rate of recovery), in barrels per day. 
The result of this comparison will determine the method used to 
calculate the production volume for the production facility. This 
production volume is to be used to calculate the worst case discharge 
planning volume in part B of this appendix.

                       2.0 Description of Methods

    2.1 Method A
    If the well rate would overwhelm the response efforts (i.e., rate of 
well/rate of recovery =1), then the production volume would 
be the 30-day forecasted well rate for a well 10,000 feet deep or less, 
or the 45-day forecasted well rate for a well deeper than 10,000 feet.
    (1) For wells 10,000 feet deep or less:
Production volume=30 days x rate of well.
    (2) For wells deeper than 10,000 feet:
Production volume=45 days x rate of well.
    2.2 Method B
    2.2.1 If the rate of recovery would be greater than the well rate 
(i.e., rate of well/rate of recovery <1), then the production volume 
would equal the sum of two terms:

Production volume=discharge volume1 + discharge 
volume2
    2.2.2 The first term represents the volume of the oil discharged 
from the well between the time of the blowout and the time the response 
resources are on scene and recovering oil (discharge 
volume1).

Discharge volume1=(days unattended+days to respond) x (rate 
of well)

    2.2.3 The second term represents the volume of oil discharged from 
the well after the response resources begin operating until the 
discharge is stopped, adjusted for the recovery rate of the response 
resources (discharge volume2).
    (1) For wells 10,000 feet deep or less:
Discharge volume2=[30 days-(days unattended + days to 
respond)] x (rate of well) x (rate of well/rate of recovery)
    (2) For wells deeper than 10,000 feet:
Discharge volume2=[45 days-(days unattended + days to 
respond)] x (rate of well) x (rate of well/rate of recovery)

                               3.0 Example

    3.1 A facility consists of two production wells producing under 
pressure, which are both less than 10,000 feet deep. The well rate of 
well A is 5 barrels per day, and the well rate of well B is 10 barrels 
per day. The facility is unattended for a maximum of 7 days. The 
facility operator estimates that it will take 2 days to have response 
equipment and personnel on scene and responding to a blowout, and that 
the projected rate of recovery will be 20 barrels per day.
    (1) First, the facility operator determines that the highest output 
well is well B. The facility operator calculates the ratio of the rate 
of well to the rate of recovery:

10 barrels per day/20 barrels per day=0.5 Because the ratio is less than 
one, the facility operator will use Method B to calculate the production 
volume.

    (2) The first term of the equation is:

Discharge volume1=(7 days + 2 days) x (10 barrels per day)=90 
barrels

    (3) The second term of the equation is:

Discharge volume2=[30 days--(7 days + 2 days)] x (10 barrels 
per day) x (0.5)=105 barrels

    (4) Therefore, the production volume is:

Production volume=90 barrels + 105 barrels=195 barrels


[[Page 68]]


    3.2 If the recovery rate was 5 barrels per day, the ratio of rate of 
well to rate of recovery would be 2, so the facility operator would use 
Method A. The production volume would have been:

30 days x 10 barrels per day=300 barrels

[59 FR 34110, July 1, 1994; 59 FR 49006, Sept. 26, 1994, as amended at 
65 FR 40800, June 30, 2000; 67 FR 47152, July 17, 2002]



 Sec. Appendix E to Part 112--Determination and Evaluation of Required 

             Response Resources for Facility Response Plans

                       1.0 Purpose and Definitions

    1.1 The purpose of this appendix is to describe the procedures to 
identify response resources to meet the requirements of Sec. 112.20. To 
identify response resources to meet the facility response plan 
requirements of 40 CFR 112.20(h), owners or operators shall follow this 
appendix or, where not appropriate, shall clearly demonstrate in the 
response plan why use of this appendix is not appropriate at the 
facility and make comparable arrangements for response resources.
    1.2 Definitions.
    1.2.1 Animal fat means a non-petroleum oil, fat, or grease of 
animal, fish, or marine mammal origin. Animal fats are further 
classified based on specific gravity as follows:
    (1) Group A--specific gravity less than 0.8.
    (2) Group B--specific gravity equal to or greater than 0.8 and less 
than 1.0.
    (3) Group C--specific gravity equal to or greater than 1.0.
    1.2.2 Nearshore is an operating area defined as extending seaward 12 
miles from the boundary lines defined in 46 CFR part 7, except in the 
Gulf of Mexico. In the Gulf of Mexico, it means the area extending 12 
miles from the line of demarcation (COLREG lines) defined in 49 CFR 
80.740 and 80.850.
    1.2.3 Non-persistent oils or Group 1 oils include:
    (1) A petroleum-based oil that, at the time of shipment, consists of 
hydrocarbon fractions:
    (A) At least 50 percent of which by volume, distill at a temperature 
of 340 degrees C (645 degrees F); and
    (B) At least 95 percent of which by volume, distill at a temperature 
of 370 degrees C (700 degrees F); and
    (2) A non-petroleum oil, other than an animal fat or vegetable oil, 
with a specific gravity less than 0.8.
    1.2.4 Non-petroleum oil means oil of any kind that is not petroleum-
based, including but not limited to: fats, oils, and greases of animal, 
fish, or marine mammal origin; and vegetable oils, including oils from 
seeds, nuts, fruits, and kernels.
    1.2.5 Ocean means the nearshore area.
    1.2.6 Operating area means Rivers and Canals, Inland, Nearshore, and 
Great Lakes geographic location(s) in which a facility is handling, 
storing, or transporting oil.
    1.2.7 Operating environment means Rivers and Canals, Inland, Great 
Lakes, or Ocean. These terms are used to define the conditions in which 
response equipment is designed to function.
    1.2.8 Persistent oils include:
    (1) A petroleum-based oil that does not meet the distillation 
criteria for a non-persistent oil. Persistent oils are further 
classified based on specific gravity as follows:
    (A) Group 2--specific gravity less than 0.85;
    (B) Group 3--specific gravity equal to or greater than 0.85 and less 
than 0.95;
    (C) Group 4--specific gravity equal to or greater than 0.95 and less 
than 1.0; or
    (D) Group 5--specific gravity equal to or greater than 1.0.
    (2) A non-petroleum oil, other than an animal fat or vegetable oil, 
with a specific gravity of 0.8 or greater. These oils are further 
classified based on specific gravity as follows:
    (A) Group 2--specific gravity equal to or greater than 0.8 and less 
than 0.85;
    (B) Group 3--specific gravity equal to or greater than 0.85 and less 
than 0.95;
    (C) Group 4--specific gravity equal to or greater than 0.95 and less 
than 1.0; or
    (D) Group 5--specific gravity equal to or greater than 1.0.
    1.2.9 Vegetable oil means a non-petroleum oil or fat of vegetable 
origin, including but not limited to oils and fats derived from plant 
seeds, nuts, fruits, and kernels. Vegetable oils are further classified 
based on specific gravity as follows:
    (1) Group A--specific gravity less than 0.8.
    (2) Group B--specific gravity equal to or greater than 0.8 and less 
than 1.0.
    (3) Group C--specific gravity equal to or greater than 1.0.
    1.2.10 Other definitions are included in Sec. 112.2, section 1.1 of 
Appendix C, and section 3.0 of Appendix F.

                 2.0 Equipment Operability and Readiness

    2.1 All equipment identified in a response plan must be designed to 
operate in the conditions expected in the facility's geographic area 
(i.e., operating environment). These conditions vary widely based on 
location and season. Therefore, it is difficult to identify a single 
stockpile of response equipment that will function effectively in each 
geographic location (i.e., operating area).
    2.2 Facilities handling, storing, or transporting oil in more than 
one operating environment as indicated in Table 1 of this appendix must 
identify equipment capable of successfully functioning in each operating 
environment.

[[Page 69]]

    2.3 When identifying equipment for the response plan (based on the 
use of this appendix), a facility owner or operator must consider the 
inherent limitations of the operability of equipment components and 
response systems. The criteria in Table 1 of this appendix shall be used 
to evaluate the operability in a given environment. These criteria 
reflect the general conditions in certain operating environments.
    2.3.1 The Regional Administrator may require documentation that the 
boom identified in a facility response plan meets the criteria in Table 
1 of this appendix. Absent acceptable documentation, the Regional 
Administrator may require that the boom be tested to demonstrate that it 
meets the criteria in Table 1 of this appendix. Testing must be in 
accordance with ASTM F 715, ASTM F 989, or other tests approved by EPA 
as deemed appropriate (see Appendix E to this part, section 13, for 
general availability of documents).
    2.4 Table 1 of this appendix lists criteria for oil recovery devices 
and boom. All other equipment necessary to sustain or support response 
operations in an operating environment must be designed to function in 
the same conditions. For example, boats that deploy or support skimmers 
or boom must be capable of being safely operated in the significant wave 
heights listed for the applicable operating environment.
    2.5 A facility owner or operator shall refer to the applicable Area 
Contingency Plan (ACP), where available, to determine if ice, debris, 
and weather-related visibility are significant factors to evaluate the 
operability of equipment. The ACP may also identify the average 
temperature ranges expected in the facility's operating area. All 
equipment identified in a response plan must be designed to operate 
within those conditions or ranges.
    2.6 This appendix provides information on response resource 
mobilization and response times. The distance of the facility from the 
storage location of the response resources must be used to determine 
whether the resources can arrive on-scene within the stated time. A 
facility owner or operator shall include the time for notification, 
mobilization, and travel of resources identified to meet the medium and 
Tier 1 worst case discharge requirements identified in sections 4.3 and 
9.3 of this appendix (for medium discharges) and section 5.3 of this 
appendix (for worst case discharges). The facility owner or operator 
must plan for notification and mobilization of Tier 2 and 3 response 
resources as necessary to meet the requirements for arrival on-scene in 
accordance with section 5.3 of this appendix. An on-water speed of 5 
knots and a land speed of 35 miles per hour is assumed, unless the 
facility owner or operator can demonstrate otherwise.
    2.7 In identifying equipment, the facility owner or operator shall 
list the storage location, quantity, and manufacturer's make and model. 
For oil recovery devices, the effective daily recovery capacity, as 
determined using section 6 of this appendix, must be included. For boom, 
the overall boom height (draft and freeboard) shall be included. A 
facility owner or operator is responsible for ensuring that the 
identified boom has compatible connectors.

   3.0 Determining Response Resources Required for Small Discharges--
    Petroleum Oils and Non-Petroleum Oils Other Than Animal Fats and 
                             Vegetable Oils

    3.1 A facility owner or operator shall identify sufficient response 
resources available, by contract or other approved means as described in 
Sec. 112.2, to respond to a small discharge. A small discharge is 
defined as any discharge volume less than or equal to 2,100 gallons, but 
not to exceed the calculated worst case discharge. The equipment must be 
designed to function in the operating environment at the point of 
expected use.
    3.2 Complexes that are regulated by EPA and the United States Coast 
Guard (USCG) must also consider planning quantities for the 
transportation-related transfer portion of the facility.
    3.2.1 Petroleum oils. The USCG planning level that corresponds to 
EPA's ``small discharge'' is termed ``the average most probable 
discharge.'' A USCG rule found at 33 CFR 154.1020 defines ``the average 
most probable discharge'' as the lesser of 50 barrels (2,100 gallons) or 
1 percent of the volume of the worst case discharge. Owners or operators 
of complexes that handle, store, or transport petroleum oils must 
compare oil discharge volumes for a small discharge and an average most 
probable discharge, and plan for whichever quantity is greater.
    3.2.2 Non-petroleum oils other than animal fats and vegetable oils. 
Owners or operators of complexes that handle, store, or transport non-
petroleum oils other than animal fats and vegetable oils must plan for 
oil discharge volumes for a small discharge. There is no USCG planning 
level that directly corresponds to EPA's ``small discharge.'' However, 
the USCG (at 33 CFR 154.545) has requirements to identify equipment to 
contain oil resulting from an operational discharge.
    3.3 The response resources shall, as appropriate, include:
    3.3.1 One thousand feet of containment boom (or, for complexes with 
marine transfer components, 1,000 feet of containment boom or two times 
the length of the largest vessel that regularly conducts oil transfers 
to or from the facility, whichever is greater), and a means of deploying 
it within 1 hour of the discovery of a discharge;
    3.3.2 Oil recovery devices with an effective daily recovery capacity 
equal to the amount of oil discharged in a small discharge or greater 
which is available at the

[[Page 70]]

facility within 2 hours of the detection of an oil discharge; and
    3.3.3 Oil storage capacity for recovered oily material indicated in 
section 12.2 of this appendix.

   4.0 Determining Response Resources Required for Medium Discharges--
    Petroleum Oils and Non-Petroleum Oils Other Than Animal Fats and 
                             Vegetable Oils

    4.1 A facility owner or operator shall identify sufficient response 
resources available, by contract or other approved means as described in 
Sec. 112.2, to respond to a medium discharge of oil for that facility. 
This will require response resources capable of containing and 
collecting up to 36,000 gallons of oil or 10 percent of the worst case 
discharge, whichever is less. All equipment identified must be designed 
to operate in the applicable operating environment specified in Table 1 
of this appendix.
    4.2 Complexes that are regulated by EPA and the USCG must also 
consider planning quantities for the transportation-related transfer 
portion of the facility.
    4.2.1 Petroleum oils. The USCG planning level that corresponds to 
EPA's ``medium discharge'' is termed ``the maximum most probable 
discharge.'' The USCG rule found at 33 CFR part 154 defines ``the 
maximum most probable discharge'' as a discharge of 1,200 barrels 
(50,400 gallons) or 10 percent of the worst case discharge, whichever is 
less. Owners or operators of complexes that handle, store, or transport 
petroleum oils must compare calculated discharge volumes for a medium 
discharge and a maximum most probable discharge, and plan for whichever 
quantity is greater.
    4.2.2 Non-petroleum oils other than animal fats and vegetable oils. 
Owners or operators of complexes that handle, store, or transport non-
petroleum oils other than animal fats and vegetable oils must plan for 
oil discharge volumes for a medium discharge. For non-petroleum oils, 
there is no USCG planning level that directly corresponds to EPA's 
``medium discharge.''
    4.3 Oil recovery devices identified to meet the applicable medium 
discharge volume planning criteria must be located such that they are 
capable of arriving on-scene within 6 hours in higher volume port areas 
and the Great Lakes and within 12 hours in all other areas. Higher 
volume port areas and Great Lakes areas are defined in section 1.1 of 
Appendix C to this part.
    4.4 Because rapid control, containment, and removal of oil are 
critical to reduce discharge impact, the owner or operator must 
determine response resources using an effective daily recovery capacity 
for oil recovery devices equal to 50 percent of the planning volume 
applicable for the facility as determined in section 4.1 of this 
appendix. The effective daily recovery capacity for oil recovery devices 
identified in the plan must be determined using the criteria in section 
6 of this appendix.
    4.5 In addition to oil recovery capacity, the plan shall, as 
appropriate, identify sufficient quantity of containment boom available, 
by contract or other approved means as described in Sec. 112.2, to 
arrive within the required response times for oil collection and 
containment and for protection of fish and wildlife and sensitive 
environments. For further description of fish and wildlife and sensitive 
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for 
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive 
Environments'' (see Appendix E to this part, section 13, for 
availability) and the applicable ACP. Although 40 CFR part 112 does not 
set required quantities of boom for oil collection and containment, the 
response plan shall identify and ensure, by contract or other approved 
means as described in Sec. 112.2, the availability of the quantity of 
boom identified in the plan for this purpose.
    4.6 The plan must indicate the availability of temporary storage 
capacity to meet section 12.2 of this appendix. If available storage 
capacity is insufficient to meet this level, then the effective daily 
recovery capacity must be derated (downgraded) to the limits of the 
available storage capacity.
    4.7 The following is an example of a medium discharge volume 
planning calculation for equipment identification in a higher volume 
port area: The facility's largest aboveground storage tank volume is 
840,000 gallons. Ten percent of this capacity is 84,000 gallons. Because 
10 percent of the facility's largest tank, or 84,000 gallons, is greater 
than 36,000 gallons, 36,000 gallons is used as the planning volume. The 
effective daily recovery capacity is 50 percent of the planning volume, 
or 18,000 gallons per day. The ability of oil recovery devices to meet 
this capacity must be calculated using the procedures in section 6 of 
this appendix. Temporary storage capacity available on-scene must equal 
twice the daily recovery capacity as indicated in section 12.2 of this 
appendix, or 36,000 gallons per day. This is the information the 
facility owner or operator must use to identify and ensure the 
availability of the required response resources, by contract or other 
approved means as described in Sec. 112.2. The facility owner shall 
also identify how much boom is available for use.

5.0 Determining Response Resources Required for the Worst Case Discharge 
                    to the Maximum Extent Practicable

    5.1 A facility owner or operator shall identify and ensure the 
availability of, by

[[Page 71]]

contract or other approved means as described in Sec. 112.2, sufficient 
response resources to respond to the worst case discharge of oil to the 
maximum extent practicable. Sections 7 and 10 of this appendix describe 
the method to determine the necessary response resources. Worksheets are 
provided as Attachments E-1 and E-2 at the end of this appendix to 
simplify the procedures involved in calculating the planning volume for 
response resources for the worst case discharge.
    5.1 A facility owner or operator shall identify and ensure the 
availability of, by contract or other approved means as described in 
Sec. 112.2, sufficient response resources to respond to the worst case 
discharge of oil to the maximum extent practicable. Sections 7 and 10 of 
this appendix describe the method to determine the necessary response 
resources. Worksheets are provided as Attachments E-1 and E-2 at the end 
of this appendix to simplify the procedures involved in calculating the 
planning volume for response resources for the worst case discharge.
    5.2 Complexes that are regulated by EPA and the USCG must also 
consider planning for the worst case discharge at the transportation-
related portion of the facility. The USCG requires that transportation-
related facility owners or operators use a different calculation for the 
worst case discharge in the revisions to 33 CFR part 154. Owners or 
operators of complex facilities that are regulated by EPA and the USCG 
must compare both calculations of worst case discharge derived by EPA 
and the USCG and plan for whichever volume is greater.
    5.3 Oil discharge response resources identified in the response plan 
and available, by contract or other approved means as described in Sec. 
112.2, to meet the applicable worst case discharge planning volume must 
be located such that they are capable of arriving at the scene of a 
discharge within the times specified for the applicable response tier 
listed as follows

----------------------------------------------------------------------------------------------------------------
                                                                           Tier 1  (in  Tier 2  (in  Tier 3  (in
                                                                              hours)       hours)       hours)
----------------------------------------------------------------------------------------------------------------
Higher volume port areas.................................................            6           30           54
Great Lakes..............................................................           12           36           60
All other river and canal, inland, and nearshore areas...................           12           36           60
----------------------------------------------------------------------------------------------------------------

    The three levels of response tiers apply to the amount of time in 
which facility owners or operators must plan for response resources to 
arrive at the scene of a discharge to respond to the worst case 
discharge planning volume. For example, at a worst case discharge in an 
inland area, the first tier of response resources (i.e., that amount of 
on-water and shoreline cleanup capacity necessary to respond to the 
fraction of the worst case discharge as indicated through the series of 
steps described in sections 7.2 and 7.3 or sections 10.2 and 10.3 of 
this appendix) would arrive at the scene of the discharge within 12 
hours; the second tier of response resources would arrive within 36 
hours; and the third tier of response resources would arrive within 60 
hours.
    5.4 The effective daily recovery capacity for oil recovery devices 
identified in the response plan must be determined using the criteria in 
section 6 of this appendix. A facility owner or operator shall identify 
the storage locations of all response resources used for each tier. The 
owner or operator of a facility whose required daily recovery capacity 
exceeds the applicable contracting caps in Table 5 of this appendix 
shall, as appropriate, identify sources of additional equipment, their 
location, and the arrangements made to obtain this equipment during a 
response. The owner or operator of a facility whose calculated planning 
volume exceeds the applicable contracting caps in Table 5 of this 
appendix shall, as appropriate, identify sources of additional equipment 
equal to twice the cap listed in Tier 3 or the amount necessary to reach 
the calculated planning volume, whichever is lower. The resources 
identified above the cap shall be capable of arriving on-scene not later 
than the Tier 3 response times in section 5.3 of this appendix. No 
contract is required. While general listings of available response 
equipment may be used to identify additional sources (i.e., ``public'' 
resources vs. ``private'' resources), the response plan shall identify 
the specific sources, locations, and quantities of equipment that a 
facility owner or operator has considered in his or her planning. When 
listing USCG-classified oil spill removal organization(s) that have 
sufficient removal capacity to recover the volume above the response 
capacity cap for the specific facility, as specified in Table 5 of this 
appendix, it is not necessary to list specific quantities of equipment.
    5.5 A facility owner or operator shall identify the availability of 
temporary storage capacity to meet section 12.2 of this appendix. If 
available storage capacity is insufficient, then the effective daily 
recovery capacity must be derated (downgraded) to the limits of the 
available storage capacity.
    5.6 When selecting response resources necessary to meet the response 
plan requirements, the facility owner or operator shall, as appropriate, 
ensure that a portion of

[[Page 72]]

those resources is capable of being used in close-to-shore response 
activities in shallow water. For any EPA-regulated facility that is 
required to plan for response in shallow water, at least 20 percent of 
the on-water response equipment identified for the applicable operating 
area shall, as appropriate, be capable of operating in water of 6 feet 
or less depth.
    5.7 In addition to oil spill recovery devices, a facility owner or 
operator shall identify sufficient quantities of boom that are 
available, by contract or other approved means as described in Sec. 
112.2, to arrive on-scene within the specified response times for oil 
containment and collection. The specific quantity of boom required for 
collection and containment will depend on the facility-specific 
information and response strategies employed. A facility owner or 
operator shall, as appropriate, also identify sufficient quantities of 
oil containment boom to protect fish and wildlife and sensitive 
environments. For further description of fish and wildlife and sensitive 
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for 
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive 
Environments'' (see Appendix E to this part, section 13, for 
availability), and the applicable ACP. Refer to this guidance document 
for the number of days and geographic areas (i.e., operating 
environments) specified in Table 2 and Table 6 of this appendix.
    5.8 A facility owner or operator shall also identify, by contract or 
other approved means as described in Sec. 112.2, the availability of an 
oil spill removal organization(s) (as described in Sec. 112.2) capable 
of responding to a shoreline cleanup operation involving the calculated 
volume of oil and emulsified oil that might impact the affected 
shoreline. The volume of oil that shall, as appropriate, be planned for 
is calculated through the application of factors contained in Tables 2, 
3, 6, and 7 of this appendix. The volume calculated from these tables is 
intended to assist the facility owner or operator to identify an oil 
spill removal organization with sufficient resources and expertise.

   6.0 Determining Effective Daily Recovery Capacity for Oil Recovery 
                                 Devices

    6.1 Oil recovery devices identified by a facility owner or operator 
must be identified by the manufacturer, model, and effective daily 
recovery capacity. These capacities must be used to determine whether 
there is sufficient capacity to meet the applicable planning criteria 
for a small discharge, a medium discharge, and a worst case discharge to 
the maximum extent practicable.
    6.2 To determine the effective daily recovery capacity of oil 
recovery devices, the formula listed in section 6.2.1 of this appendix 
shall be used. This formula considers potential limitations due to 
available daylight, weather, sea state, and percentage of emulsified oil 
in the recovered material. The RA may assign a lower efficiency factor 
to equipment listed in a response plan if it is determined that such a 
reduction is warranted.
    6.2.1 The following formula shall be used to calculate the effective 
daily recovery capacity:

R = T x 24 hours x E

where:

R--Effective daily recovery capacity;
T--Throughput rate in barrels per hour (nameplate capacity); and
E--20 percent efficiency factor (or lower factor as determined by the 
Regional Administrator).

    6.2.2 For those devices in which the pump limits the throughput of 
liquid, throughput rate shall be calculated using the pump capacity.
    6.2.3 For belt or moptype devices, the throughput rate shall be 
calculated using the speed of the belt or mop through the device, 
assumed thickness of oil adhering to or collected by the device, and 
surface area of the belt or mop. For purposes of this calculation, the 
assumed thickness of oil will be \1/4\ inch.
    6.2.4 Facility owners or operators that include oil recovery devices 
whose throughput is not measurable using a pump capacity or belt/mop 
speed may provide information to support an alternative method of 
calculation. This information must be submitted following the procedures 
in section 6.3.2 of this appendix.
    6.3 As an alternative to section 6.2 of this appendix, a facility 
owner or operator may submit adequate evidence that a different 
effective daily recovery capacity should be applied for a specific oil 
recovery device. Adequate evidence is actual verified performance data 
in discharge conditions or tests using American Society of Testing and 
Materials (ASTM) Standard F 631-99, F 808-83 (1999), or an equivalent 
test approved by EPA as deemed appropriate (see Appendix E to this part, 
section 13, for general availability of documents).
    6.3.1 The following formula must be used to calculate the effective 
daily recovery capacity under this alternative:

R = D x U

where:
R--Effective daily recovery capacity;
D--Average Oil Recovery Rate in barrels per hour (Item 26 in F 808-83; 
Item 13.2.16 in F 631-99; or actual performance data); and
U--Hours per day that equipment can operate under discharge conditions. 
Ten hours per day must be used unless a facility owner or operator can 
demonstrate that the recovery operation can be sustained for longer 
periods.

[[Page 73]]

    6.3.2 A facility owner or operator submitting a response plan shall 
provide data that supports the effective daily recovery capacities for 
the oil recovery devices listed. The following is an example of these 
calculations:
    (1) A weir skimmer identified in a response plan has a 
manufacturer's rated throughput at the pump of 267 gallons per minute 
(gpm).

267 gpm=381 barrels per hour (bph)
R=381 bphx24 hr/dayx0.2=1,829 barrels per day

    (2) After testing using ASTM procedures, the skimmer's oil recovery 
rate is determined to be 220 gpm. The facility owner or operator 
identifies sufficient resources available to support operations for 12 
hours per day.

220 gpm=314 bph
R=314 bphx12 hr/day=3,768 barrels per day

    (3) The facility owner or operator will be able to use the higher 
capacity if sufficient temporary oil storage capacity is available. 
Determination of alternative efficiency factors under section 6.2 of 
this appendix or the acceptability of an alternative effective daily 
recovery capacity under section 6.3 of this appendix will be made by the 
Regional Administrator as deemed appropriate.

 7.0 Calculating Planning Volumes for a Worst Case Discharge--Petroleum 
  Oils and Non-Petroleum Oils Other Than Animal Fats and Vegetable Oils

    7.1 A facility owner or operator shall plan for a response to the 
facility's worst case discharge. The planning for on-water oil recovery 
must take into account a loss of some oil to the environment due to 
evaporative and natural dissipation, potential increases in volume due 
to emulsification, and the potential for deposition of oil on the 
shoreline. The procedures for non-petroleum oils other than animal fats 
and vegetable oils are discussed in section 7.7 of this appendix.
    7.2 The following procedures must be used by a facility owner or 
operator in determining the required on-water oil recovery capacity:
    7.2.1 The following must be determined: the worst case discharge 
volume of oil in the facility; the appropriate group(s) for the types of 
oil handled, stored, or transported at the facility [persistent (Groups 
2, 3, 4, 5) or non-persistent (Group 1)]; and the facility's specific 
operating area. See sections 1.2.3 and 1.2.8 of this appendix for the 
definitions of non-persistent and persistent oils, respectively. 
Facilities that handle, store, or transport oil from different oil 
groups must calculate each group separately, unless the oil group 
constitutes 10 percent or less by volume of the facility's total oil 
storage capacity. This information is to be used with Table 2 of this 
appendix to determine the percentages of the total volume to be used for 
removal capacity planning. Table 2 of this appendix divides the volume 
into three categories: oil lost to the environment; oil deposited on the 
shoreline; and oil available for on-water recovery.
    7.2.2 The on-water oil recovery volume shall, as appropriate, be 
adjusted using the appropriate emulsification factor found in Table 3 of 
this appendix. Facilities that handle, store, or transport oil from 
different petroleum groups must compare the on-water recovery volume for 
each oil group (unless the oil group constitutes 10 percent or less by 
volume of the facility's total storage capacity) and use the calculation 
that results in the largest on-water oil recovery volume to plan for the 
amount of response resources for a worst case discharge.
    7.2.3 The adjusted volume is multiplied by the on-water oil recovery 
resource mobilization factor found in Table 4 of this appendix from the 
appropriate operating area and response tier to determine the total on-
water oil recovery capacity in barrels per day that must be identified 
or contracted to arrive on-scene within the applicable time for each 
response tier. Three tiers are specified. For higher volume port areas, 
the contracted tiers of resources must be located such that they are 
capable of arriving on-scene within 6 hours for Tier 1, 30 hours for 
Tier 2, and 54 hours for Tier 3 of the discovery of an oil discharge. 
For all other rivers and canals, inland, nearshore areas, and the Great 
Lakes, these tiers are 12, 36, and 60 hours.
    7.2.4 The resulting on-water oil recovery capacity in barrels per 
day for each tier is used to identify response resources necessary to 
sustain operations in the applicable operating area. The equipment shall 
be capable of sustaining operations for the time period specified in 
Table 2 of this appendix. The facility owner or operator shall identify 
and ensure the availability, by contract or other approved means as 
described in Sec. 112.2, of sufficient oil spill recovery devices to 
provide the effective daily oil recovery capacity required. If the 
required capacity exceeds the applicable cap specified in Table 5 of 
this appendix, then a facility owner or operator shall ensure, by 
contract or other approved means as described in Sec. 112.2, only for 
the quantity of resources required to meet the cap, but shall identify 
sources of additional resources as indicated in section 5.4 of this 
appendix. The owner or operator of a facility whose planning volume 
exceeded the cap in 1993 must make arrangements to identify and ensure 
the availability, by contract or other approved means as described in 
Sec. 112.2, for additional capacity to be under contract by 1998 or 
2003, as appropriate. For a facility that handles multiple groups of 
oil, the required effective daily recovery capacity for each oil group 
is calculated before applying the cap. The oil group calculation 
resulting in the largest on-water recovery volume

[[Page 74]]

must be used to plan for the amount of response resources for a worst 
case discharge, unless the oil group comprises 10 percent or less by 
volume of the facility's total oil storage capacity.
    7.3 The procedures discussed in sections 7.3.1-7.3.3 of this 
appendix must be used to calculate the planning volume for identifying 
shoreline cleanup capacity (for Group 1 through Group 4 oils).
    7.3.1 The following must be determined: the worst case discharge 
volume of oil for the facility; the appropriate group(s) for the types 
of oil handled, stored, or transported at the facility [persistent 
(Groups 2, 3, or 4) or non-persistent (Group 1)]; and the geographic 
area(s) in which the facility operates (i.e., operating areas). For a 
facility handling, storing, or transporting oil from different groups, 
each group must be calculated separately. Using this information, Table 
2 of this appendix must be used to determine the percentages of the 
total volume to be used for shoreline cleanup resource planning.
    7.3.2 The shoreline cleanup planning volume must be adjusted to 
reflect an emulsification factor using the same procedure as described 
in section 7.2.2 of this appendix.
    7.3.3 The resulting volume shall be used to identify an oil spill 
removal organization with the appropriate shoreline cleanup capability.
    7.4 A response plan must identify response resources with fire 
fighting capability. The owner or operator of a facility that handles, 
stores, or transports Group 1 through Group 4 oils that does not have 
adequate fire fighting resources located at the facility or that cannot 
rely on sufficient local fire fighting resources must identify adequate 
fire fighting resources. The facility owner or operator shall ensure, by 
contract or other approved means as described in Sec. 112.2, the 
availability of these resources. The response plan must also identify an 
individual located at the facility to work with the fire department for 
Group 1 through Group 4 oil fires. This individual shall also verify 
that sufficient well-trained fire fighting resources are available 
within a reasonable response time to a worst case scenario. The 
individual may be the qualified individual identified in the response 
plan or another appropriate individual located at the facility.
    7.5 The following is an example of the procedure described above in 
sections 7.2 and 7.3 of this appendix: A facility with a 270,000 barrel 
(11.3 million gallons) capacity for 6 oil (specific gravity 
0.96) is located in a higher volume port area. The facility is on a 
peninsula and has docks on both the ocean and bay sides. The facility 
has four aboveground oil storage tanks with a combined total capacity of 
80,000 barrels (3.36 million gallons) and no secondary containment. The 
remaining facility tanks are inside secondary containment structures. 
The largest aboveground oil storage tank (90,000 barrels or 3.78 million 
gallons) has its own secondary containment. Two 50,000 barrel (2.1 
million gallon) tanks (that are not connected by a manifold) are within 
a common secondary containment tank area, which is capable of holding 
100,000 barrels (4.2 million gallons) plus sufficient freeboard.
    7.5.1 The worst case discharge for the facility is calculated by 
adding the capacity of all aboveground oil storage tanks without 
secondary containment (80,000 barrels) plus the capacity of the largest 
aboveground oil storage tank inside secondary containment. The resulting 
worst case discharge volume is 170,000 barrels or 7.14 million gallons.
    7.5.2 Because the requirements for Tiers 1, 2, and 3 for inland and 
nearshore exceed the caps identified in Table 5 of this appendix, the 
facility owner will contract for a response to 10,000 barrels per day 
(bpd) for Tier 1, 20,000 bpd for Tier 2, and 40,000 bpd for Tier 3. 
Resources for the remaining 7,850 bpd for Tier 1, 9,750 bpd for Tier 2, 
and 7,600 bpd for Tier 3 shall be identified but need not be contracted 
for in advance. The facility owner or operator shall, as appropriate, 
also identify or contract for quantities of boom identified in their 
response plan for the protection of fish and wildlife and sensitive 
environments within the area potentially impacted by a worst case 
discharge from the facility. For further description of fish and 
wildlife and sensitive environments, see Appendices I, II, and III to 
DOC/NOAA's ``Guidance for Facility and Vessel Response Plans: Fish and 
Wildlife and Sensitive Environments,'' (see Appendix E to this part, 
section 13, for availability) and the applicable ACP. Attachment C-III 
to Appendix C provides a method for calculating a planning distance to 
fish and wildlife and sensitive environments and public drinking water 
intakes that may be impacted in the event of a worst case discharge.
    7.6 The procedures discussed in sections 7.6.1-7.6.3 of this 
appendix must be used to determine appropriate response resources for 
facilities with Group 5 oils.
    7.6.1 The owner or operator of a facility that handles, stores, or 
transports Group 5 oils shall, as appropriate, identify the response 
resources available by contract or other approved means, as described in 
Sec. 112.2. The equipment identified in a response plan shall, as 
appropriate, include:
    (1) Sonar, sampling equipment, or other methods for locating the oil 
on the bottom or suspended in the water column;
    (2) Containment boom, sorbent boom, silt curtains, or other methods 
for containing the oil that may remain floating on the surface or to 
reduce spreading on the bottom;
    (3) Dredges, pumps, or other equipment necessary to recover oil from 
the bottom and shoreline;

[[Page 75]]

    (4) Equipment necessary to assess the impact of such discharges; and
    (5) Other appropriate equipment necessary to respond to a discharge 
involving the type of oil handled, stored,, or transported.
    7.6.2 Response resources identified in a response plan for a 
facility that handles, stores, or transports Group 5 oils under section 
7.6.1 of this appendix shall be capable of being deployed (on site) 
within 24 hours of discovery of a discharge to the area where the 
facility is operating.
    7.6.3 A response plan must identify response resources with fire 
fighting capability. The owner or operator of a facility that handles, 
stores, or transports Group 5 oils that does not have adequate fire 
fighting resources located at the facility or that cannot rely on 
sufficient local fire fighting resources must identify adequate fire 
fighting resources. The facility owner or operator shall ensure, by 
contract or other approved means as described in Sec. 112.2, the 
availability of these resources. The response plan shall also identify 
an individual located at the facility to work with the fire department 
for Group 5 oil fires. This individual shall also verify that sufficient 
well-trained fire fighting resources are available within a reasonable 
response time to respond to a worst case discharge. The individual may 
be the qualified individual identified in the response plan or another 
appropriate individual located at the facility.
    7.7 Non-petroleum oils other than animal fats and vegetable oils. 
The procedures described in sections 7.7.1 through 7.7.5 of this 
appendix must be used to determine appropriate response plan development 
and evaluation criteria for facilities that handle, store, or transport 
non-petroleum oils other than animal fats and vegetable oils. Refer to 
section 11 of this appendix for information on the limitations on the 
use of chemical agents for inland and nearshore areas.
    7.7.1 An owner or operator of a facility that handles, stores, or 
transports non-petroleum oils other than animal fats and vegetable oils 
must provide information in his or her plan that identifies:
    (1) Procedures and strategies for responding to a worst case 
discharge to the maximum extent practicable; and
    (2) Sources of the equipment and supplies necessary to locate, 
recover, and mitigate such a discharge.
    7.7.2 An owner or operator of a facility that handles, stores, or 
transports non-petroleum oils other than animal fats and vegetable oils 
must ensure that any equipment identified in a response plan is capable 
of operating in the conditions expected in the geographic area(s) (i.e., 
operating environments) in which the facility operates using the 
criteria in Table 1 of this appendix. When evaluating the operability of 
equipment, the facility owner or operator must consider limitations that 
are identified in the appropriate ACPs, including:
    (1) Ice conditions;
    (2) Debris;
    (3) Temperature ranges; and
    (4) Weather-related visibility.
    7.7.3 The owner or operator of a facility that handles, stores, or 
transports non-petroleum oils other than animal fats and vegetable oils 
must identify the response resources that are available by contract or 
other approved means, as described in Sec. 112.2. The equipment 
described in the response plan shall, as appropriate, include:
    (1) Containment boom, sorbent boom, or other methods for containing 
oil floating on the surface or to protect shorelines from impact;
    (2) Oil recovery devices appropriate for the type of non-petroleum 
oil carried; and
    (3) Other appropriate equipment necessary to respond to a discharge 
involving the type of oil carried.
    7.7.4 Response resources identified in a response plan according to 
section 7.7.3 of this appendix must be capable of commencing an 
effective on-scene response within the applicable tier response times in 
section 5.3 of this appendix.
    7.7.5 A response plan must identify response resources with fire 
fighting capability. The owner or operator of a facility that handles, 
stores, or transports non-petroleum oils other than animal fats and 
vegetable oils that does not have adequate fire fighting resources 
located at the facility or that cannot rely on sufficient local fire 
fighting resources must identify adequate fire fighting resources. The 
owner or operator shall ensure, by contract or other approved means as 
described in Sec. 112.2, the availability of these resources. The 
response plan must also identify an individual located at the facility 
to work with the fire department for fires of these oils. This 
individual shall also verify that sufficient well-trained fire fighting 
resources are available within a reasonable response time to a worst 
case scenario. The individual may be the qualified individual identified 
in the response plan or another appropriate individual located at the 
facility.

8.0 Determining Response Resources Required for Small Discharges--Animal 
                         Fats and Vegetable Oils

    8.1 A facility owner or operator shall identify sufficient response 
resources available, by contract or other approved means as described in 
Sec. 112.2, to respond to a small discharge of animal fats or vegetable 
oils. A small discharge is defined as any discharge volume less than or 
equal to 2,100 gallons, but not to exceed the calculated worst case 
discharge. The equipment must be designed to function in the operating 
environment at the point of expected use.

[[Page 76]]

    8.2 Complexes that are regulated by EPA and the USCG must also 
consider planning quantities for the marine transportation-related 
portion of the facility.
    8.2.1 The USCG planning level that corresponds to EPA's ``small 
discharge'' is termed ``the average most probable discharge.'' A USCG 
rule found at 33 CFR 154.1020 defines ``the average most probable 
discharge'' as the lesser of 50 barrels (2,100 gallons) or 1 percent of 
the volume of the worst case discharge. Owners or operators of complexes 
that handle, store, or transport animal fats and vegetable oils must 
compare oil discharge volumes for a small discharge and an average most 
probable discharge, and plan for whichever quantity is greater.
    8.3 The response resources shall, as appropriate, include:
    8.3.1 One thousand feet of containment boom (or, for complexes with 
marine transfer components, 1,000 feet of containment boom or two times 
the length of the largest vessel that regularly conducts oil transfers 
to or from the facility, whichever is greater), and a means of deploying 
it within 1 hour of the discovery of a discharge;
    8.3.2 Oil recovery devices with an effective daily recovery capacity 
equal to the amount of oil discharged in a small discharge or greater 
which is available at the facility within 2 hours of the detection of a 
discharge; and
    8.3.3 Oil storage capacity for recovered oily material indicated in 
section 12.2 of this appendix.

   9.0 Determining Response Resources Required for Medium Discharges--
                     Animal Fats and Vegetable Oils

    9.1 A facility owner or operator shall identify sufficient response 
resources available, by contract or other approved means as described in 
Sec. 112.2, to respond to a medium discharge of animal fats or 
vegetable oils for that facility. This will require response resources 
capable of containing and collecting up to 36,000 gallons of oil or 10 
percent of the worst case discharge, whichever is less. All equipment 
identified must be designed to operate in the applicable operating 
environment specified in Table 1 of this appendix.
    9.2 Complexes that are regulated by EPA and the USCG must also 
consider planning quantities for the transportation-related transfer 
portion of the facility. Owners or operators of complexes that handle, 
store, or transport animal fats or vegetable oils must plan for oil 
discharge volumes for a medium discharge. For non-petroleum oils, there 
is no USCG planning level that directly corresponds to EPA's ``medium 
discharge.'' Although the USCG does not have planning requirements for 
medium discharges, they do have requirements (at 33 CFR 154.545) to 
identify equipment to contain oil resulting from an operational 
discharge.
    9.3 Oil recovery devices identified to meet the applicable medium 
discharge volume planning criteria must be located such that they are 
capable of arriving on-scene within 6 hours in higher volume port areas 
and the Great Lakes and within 12 hours in all other areas. Higher 
volume port areas and Great Lakes areas are defined in section 1.1 of 
Appendix C to this part.
    9.4 Because rapid control, containment, and removal of oil are 
critical to reduce discharge impact, the owner or operator must 
determine response resources using an effective daily recovery capacity 
for oil recovery devices equal to 50 percent of the planning volume 
applicable for the facility as determined in section 9.1 of this 
appendix. The effective daily recovery capacity for oil recovery devices 
identified in the plan must be determined using the criteria in section 
6 of this appendix.
    9.5 In addition to oil recovery capacity, the plan shall, as 
appropriate, identify sufficient quantity of containment boom available, 
by contract or other approved means as described in Sec. 112.2, to 
arrive within the required response times for oil collection and 
containment and for protection of fish and wildlife and sensitive 
environments. For further description of fish and wildlife and sensitive 
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for 
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive 
Environments'' (59 FR 14713-22, March 29, 1994) and the applicable ACP. 
Although 40 CFR part 112 does not set required quantities of boom for 
oil collection and containment, the response plan shall identify and 
ensure, by contract or other approved means as described in Sec. 112.2, 
the availability of the quantity of boom identified in the plan for this 
purpose.
    9.6 The plan must indicate the availability of temporary storage 
capacity to meet section 12.2 of this appendix. If available storage 
capacity is insufficient to meet this level, then the effective daily 
recovery capacity must be derated (downgraded) to the limits of the 
available storage capacity.
    9.7 The following is an example of a medium discharge volume 
planning calculation for equipment identification in a higher volume 
port area:
    The facility's largest aboveground storage tank volume is 840,000 
gallons. Ten percent of this capacity is 84,000 gallons. Because 10 
percent of the facility's largest tank, or 84,000 gallons, is greater 
than 36,000 gallons, 36,000 gallons is used as the planning volume. The 
effective daily recovery capacity is 50 percent of the planning volume, 
or 18,000 gallons per day. The ability of oil recovery devices to meet 
this capacity must be calculated using the procedures in section 6 of 
this appendix. Temporary storage capacity available on-scene must equal 
twice the

[[Page 77]]

daily recovery capacity as indicated in section 12.2 of this appendix, 
or 36,000 gallons per day. This is the information the facility owner or 
operator must use to identify and ensure the availability of the 
required response resources, by contract or other approved means as 
described in Sec. 112.2. The facility owner shall also identify how 
much boom is available for use.

  10.0 Calculating Planning Volumes for a Worst Case Discharge--Animal 
                        Fats and Vegetable Oils.

    10.1 A facility owner or operator shall plan for a response to the 
facility's worst case discharge. The planning for on-water oil recovery 
must take into account a loss of some oil to the environment due to 
physical, chemical, and biological processes, potential increases in 
volume due to emulsification, and the potential for deposition of oil on 
the shoreline or on sediments. The response planning procedures for 
animal fats and vegetable oils are discussed in section 10.7 of this 
appendix. You may use alternate response planning procedures for animal 
fats and vegetable oils if those procedures result in environmental 
protection equivalent to that provided by the procedures in section 10.7 
of this appendix.
    10.2 The following procedures must be used by a facility owner or 
operator in determining the required on-water oil recovery capacity:
    10.2.1 The following must be determined: the worst case discharge 
volume of oil in the facility; the appropriate group(s) for the types of 
oil handled, stored, or transported at the facility (Groups A, B, C); 
and the facility's specific operating area. See sections 1.2.1 and 1.2.9 
of this appendix for the definitions of animal fats and vegetable oils 
and groups thereof. Facilities that handle, store, or transport oil from 
different oil groups must calculate each group separately, unless the 
oil group constitutes 10 percent or less by volume of the facility's 
total oil storage capacity. This information is to be used with Table 6 
of this appendix to determine the percentages of the total volume to be 
used for removal capacity planning. Table 6 of this appendix divides the 
volume into three categories: oil lost to the environment; oil deposited 
on the shoreline; and oil available for on-water recovery.
    10.2.2 The on-water oil recovery volume shall, as appropriate, be 
adjusted using the appropriate emulsification factor found in Table 7 of 
this appendix. Facilities that handle, store, or transport oil from 
different groups must compare the on-water recovery volume for each oil 
group (unless the oil group constitutes 10 percent or less by volume of 
the facility's total storage capacity) and use the calculation that 
results in the largest on-water oil recovery volume to plan for the 
amount of response resources for a worst case discharge.
    10.2.3 The adjusted volume is multiplied by the on-water oil 
recovery resource mobilization factor found in Table 4 of this appendix 
from the appropriate operating area and response tier to determine the 
total on-water oil recovery capacity in barrels per day that must be 
identified or contracted to arrive on-scene within the applicable time 
for each response tier. Three tiers are specified. For higher volume 
port areas, the contracted tiers of resources must be located such that 
they are capable of arriving on-scene within 6 hours for Tier 1, 30 
hours for Tier 2, and 54 hours for Tier 3 of the discovery of a 
discharge. For all other rivers and canals, inland, nearshore areas, and 
the Great Lakes, these tiers are 12, 36, and 60 hours.
    10.2.4 The resulting on-water oil recovery capacity in barrels per 
day for each tier is used to identify response resources necessary to 
sustain operations in the applicable operating area. The equipment shall 
be capable of sustaining operations for the time period specified in 
Table 6 of this appendix. The facility owner or operator shall identify 
and ensure, by contract or other approved means as described in Sec. 
112.2, the availability of sufficient oil spill recovery devices to 
provide the effective daily oil recovery capacity required. If the 
required capacity exceeds the applicable cap specified in Table 5 of 
this appendix, then a facility owner or operator shall ensure, by 
contract or other approved means as described in Sec. 112.2, only for 
the quantity of resources required to meet the cap, but shall identify 
sources of additional resources as indicated in section 5.4 of this 
appendix. The owner or operator of a facility whose planning volume 
exceeded the cap in 1998 must make arrangements to identify and ensure, 
by contract or other approved means as described in Sec. 112.2, the 
availability of additional capacity to be under contract by 2003, as 
appropriate. For a facility that handles multiple groups of oil, the 
required effective daily recovery capacity for each oil group is 
calculated before applying the cap. The oil group calculation resulting 
in the largest on-water recovery volume must be used to plan for the 
amount of response resources for a worst case discharge, unless the oil 
group comprises 10 percent or less by volume of the facility's oil 
storage capacity.
    10.3 The procedures discussed in sections 10.3.1 through 10.3.3 of 
this appendix must be used to calculate the planning volume for 
identifying shoreline cleanup capacity (for Groups A and B oils).
    10.3.1 The following must be determined: the worst case discharge 
volume of oil for the facility; the appropriate group(s) for the types 
of oil handled, stored, or transported at the facility (Groups A or B); 
and the geographic area(s) in which the facility operates

[[Page 78]]

(i.e., operating areas). For a facility handling, storing, or 
transporting oil from different groups, each group must be calculated 
separately. Using this information, Table 6 of this appendix must be 
used to determine the percentages of the total volume to be used for 
shoreline cleanup resource planning.
    10.3.2 The shoreline cleanup planning volume must be adjusted to 
reflect an emulsification factor using the same procedure as described 
in section 10.2.2 of this appendix.
    10.3.3 The resulting volume shall be used to identify an oil spill 
removal organization with the appropriate shoreline cleanup capability.
    10.4 A response plan must identify response resources with fire 
fighting capability appropriate for the risk of fire and explosion at 
the facility from the discharge or threat of discharge of oil. The owner 
or operator of a facility that handles, stores, or transports Group A or 
B oils that does not have adequate fire fighting resources located at 
the facility or that cannot rely on sufficient local fire fighting 
resources must identify adequate fire fighting resources. The facility 
owner or operator shall ensure, by contract or other approved means as 
described in Sec. 112.2, the availability of these resources. The 
response plan must also identify an individual to work with the fire 
department for Group A or B oil fires. This individual shall also verify 
that sufficient well-trained fire fighting resources are available 
within a reasonable response time to a worst case scenario. The 
individual may be the qualified individual identified in the response 
plan or another appropriate individual located at the facility.
    10.5 The following is an example of the procedure described in 
sections 10.2 and 10.3 of this appendix. A facility with a 37.04 million 
gallon (881,904 barrel) capacity of several types of vegetable oils is 
located in the Inland Operating Area. The vegetable oil with the highest 
specific gravity stored at the facility is soybean oil (specific gravity 
0.922, Group B vegetable oil). The facility has ten aboveground oil 
storage tanks with a combined total capacity of 18 million gallons 
(428,571 barrels) and without secondary containment. The remaining 
facility tanks are inside secondary containment structures. The largest 
aboveground oil storage tank (3 million gallons or 71,428 barrels) has 
its own secondary containment. Two 2.1 million gallon (50,000 barrel) 
tanks (that are not connected by a manifold) are within a common 
secondary containment tank area, which is capable of holding 4.2 million 
gallons (100,000 barrels) plus sufficient freeboard.
    10.5.1 The worst case discharge for the facility is calculated by 
adding the capacity of all aboveground vegetable oil storage tanks 
without secondary containment (18.0 million gallons) plus the capacity 
of the largest aboveground storage tank inside secondary containment 
(3.0 million gallons). The resulting worst case discharge is 21 million 
gallons or 500,000 barrels.
    10.5.2 With a specific worst case discharge identified, the planning 
volume for on-water recovery can be identified as follows:

Worst case discharge: 21 million gallons (500,000 barrels) of Group B 
vegetable oil
Operating Area: Inland
Planned percent recovered floating vegetable oil (from Table 6, column 
Nearshore/Inland/Great Lakes): Inland, Group B is 20%
Emulsion factor (from Table 7): 2.0
Planning volumes for on-water recovery: 21,000,000 gallons x 0.2 x 2.0 = 
8,400,000 gallons or 200,000 barrels.
Determine required resources for on-water recovery for each of the three 
tiers using mobilization factors (from Table 4, column Inland/Nearshore/
Great Lakes)

------------------------------------------------------------------------
           Inland Operating Area             Tier 1    Tier 2    Tier 3
------------------------------------------------------------------------
Mobilization factor by which you multiply        .15       .25       .40
 planning volume..........................
Estimated Daily Recovery Capacity (bbls)..    30,000    50,000    80,000
------------------------------------------------------------------------

    10.5.3 Because the requirements for On-Water Recovery Resources for 
Tiers 1, 2, and 3 for Inland Operating Area exceed the caps identified 
in Table 5 of this appendix, the facility owner will contract for a 
response of 12,500 barrels per day (bpd) for Tier 1, 25,000 bpd for Tier 
2, and 50,000 bpd for Tier 3. Resources for the remaining 17,500 bpd for 
Tier 1, 25,000 bpd for Tier 2, and 30,000 bpd for Tier 3 shall be 
identified but need not be contracted for in advance.
    10.5.4 With the specific worst case discharge identified, the 
planning volume of onshore recovery can be identified as follows:

Worst case discharge: 21 million gallons (500,000 barrels) of Group B 
vegetable oil
Operating Area: Inland
Planned percent recovered floating vegetable oil from onshore (from 
Table 6, column Nearshore/Inland/Great Lakes): Inland, Group B is 65%
Emulsion factor (from Table 7): 2.0
Planning volumes for shoreline recovery:
21,000,000 gallons x 0.65 x 2.0 = 27,300,000 gallons or 650,000 barrels

    10.5.5 The facility owner or operator shall, as appropriate, also 
identify or contract for quantities of boom identified in the response 
plan for the protection of fish and wildlife

[[Page 79]]

and sensitive environments within the area potentially impacted by a 
worst case discharge from the facility. For further description of fish 
and wildlife and sensitive environments, see Appendices I, II, and III 
to DOC/NOAA's ``Guidance for Facility and Vessel Response Plans: Fish 
and Wildlife and Sensitive Environments,'' (see Appendix E to this part, 
section 13, for availability) and the applicable ACP. Attachment C-III 
to Appendix C provides a method for calculating a planning distance to 
fish and wildlife and sensitive environments and public drinking water 
intakes that may be adversely affected in the event of a worst case 
discharge.
    10.6 The procedures discussed in sections 10.6.1 through 10.6.3 of 
this appendix must be used to determine appropriate response resources 
for facilities with Group C oils.
    10.6.1 The owner or operator of a facility that handles, stores, or 
transports Group C oils shall, as appropriate, identify the response 
resources available by contract or other approved means, as described in 
Sec. 112.2. The equipment identified in a response plan shall, as 
appropriate, include:
    (1) Sonar, sampling equipment, or other methods for locating the oil 
on the bottom or suspended in the water column;
    (2) Containment boom, sorbent boom, silt curtains, or other methods 
for containing the oil that may remain floating on the surface or to 
reduce spreading on the bottom;
    (3) Dredges, pumps, or other equipment necessary to recover oil from 
the bottom and shoreline;
    (4) Equipment necessary to assess the impact of such discharges; and
    (5) Other appropriate equipment necessary to respond to a discharge 
involving the type of oil handled, stored, or transported.
    10.6.2 Response resources identified in a response plan for a 
facility that handles, stores, or transports Group C oils under section 
10.6.1 of this appendix shall be capable of being deployed on scene 
within 24 hours of discovery of a discharge.
    10.6.3 A response plan must identify response resources with fire 
fighting capability. The owner or operator of a facility that handles, 
stores, or transports Group C oils that does not have adequate fire 
fighting resources located at the facility or that cannot rely on 
sufficient local fire fighting resources must identify adequate fire 
fighting resources. The owner or operator shall ensure, by contract or 
other approved means as described in Sec. 112.2, the availability of 
these resources. The response plan shall also identify an individual 
located at the facility to work with the fire department for Group C oil 
fires. This individual shall also verify that sufficient well-trained 
fire fighting resources are available within a reasonable response time 
to respond to a worst case discharge. The individual may be the 
qualified individual identified in the response plan or another 
appropriate individual located at the facility.
    10.7 The procedures described in sections 10.7.1 through 10.7.5 of 
this appendix must be used to determine appropriate response plan 
development and evaluation criteria for facilities that handle, store, 
or transport animal fats and vegetable oils. Refer to section 11 of this 
appendix for information on the limitations on the use of chemical 
agents for inland and nearshore areas.
    10.7.1 An owner or operator of a facility that handles, stores, or 
transports animal fats and vegetable oils must provide information in 
the response plan that identifies:
    (1) Procedures and strategies for responding to a worst case 
discharge of animal fats and vegetable oils to the maximum extent 
practicable; and
    (2) Sources of the equipment and supplies necessary to locate, 
recover, and mitigate such a discharge.
    10.7.2 An owner or operator of a facility that handles, stores, or 
transports animal fats and vegetable oils must ensure that any equipment 
identified in a response plan is capable of operating in the geographic 
area(s) (i.e., operating environments) in which the facility operates 
using the criteria in Table 1 of this appendix. When evaluating the 
operability of equipment, the facility owner or operator must consider 
limitations that are identified in the appropriate ACPs, including:
    (1) Ice conditions;
    (2) Debris;
    (3) Temperature ranges; and
    (4) Weather-related visibility.
    10.7.3. The owner or operator of a facility that handles, stores, or 
transports animal fats and vegetable oils must identify the response 
resources that are available by contract or other approved means, as 
described in Sec. 112.2. The equipment described in the response plan 
shall, as appropriate, include:
    (1) Containment boom, sorbent boom, or other methods for containing 
oil floating on the surface or to protect shorelines from impact;
    (2) Oil recovery devices appropriate for the type of animal fat or 
vegetable oil carried; and
    (3) Other appropriate equipment necessary to respond to a discharge 
involving the type of oil carried.
    10.7.4 Response resources identified in a response plan according to 
section 10.7.3 of this appendix must be capable of commencing an 
effective on-scene response within the applicable tier response times in 
section 5.3 of this appendix.
    10.7.5 A response plan must identify response resources with fire 
fighting capability. The owner or operator of a facility that handles, 
stores, or transports animal fats and vegetable oils that does not have 
adequate fire fighting resources located at

[[Page 80]]

the facility or that cannot rely on sufficient local fire fighting 
resources must identify adequate fire fighting resources. The owner or 
operator shall ensure, by contract or other approved means as described 
in Sec. 112.2, the availability of these resources. The response plan 
shall also identify an individual located at the facility to work with 
the fire department for animal fat and vegetable oil fires. This 
individual shall also verify that sufficient well-trained fire fighting 
resources are available within a reasonable response time to respond to 
a worst case discharge. The individual may be the qualified individual 
identified in the response plan or another appropriate individual 
located at the facility.

    11.0 Determining the Availability of Alternative Response Methods

    11.1 For chemical agents to be identified in a response plan, they 
must be on the NCP Product Schedule that is maintained by EPA. (Some 
States have a list of approved dispersants for use within State waters. 
Not all of these State-approved dispersants are listed on the NCP 
Product Schedule.)
    11.2 Identification of chemical agents in the plan does not imply 
that their use will be authorized. Actual authorization will be governed 
by the provisions of the NCP and the applicable ACP.

   12.0 Additional Equipment Necessary to Sustain Response Operations

    12.1 A facility owner or operator shall identify sufficient response 
resources available, by contract or other approved means as described in 
Sec. 112.2, to respond to a medium discharge of animal fats or 
vegetables oils for that facility. This will require response resources 
capable of containing and collecting up to 36,000 gallons of oil or 10 
percent of the worst case discharge, whichever is less. All equipment 
identified must be designed to operate in the applicable operating 
environment specified in Table 1 of this appendix.
    12.2 A facility owner or operator shall evaluate the availability of 
adequate temporary storage capacity to sustain the effective daily 
recovery capacities from equipment identified in the plan. Because of 
the inefficiencies of oil spill recovery devices, response plans must 
identify daily storage capacity equivalent to twice the effective daily 
recovery capacity required on-scene. This temporary storage capacity may 
be reduced if a facility owner or operator can demonstrate by waste 
stream analysis that the efficiencies of the oil recovery devices, 
ability to decant waste, or the availability of alternative temporary 
storage or disposal locations will reduce the overall volume of oily 
material storage.
    12.3 A facility owner or operator shall ensure that response 
planning includes the capability to arrange for disposal of recovered 
oil products. Specific disposal procedures will be addressed in the 
applicable ACP.

                    13.0 References and Availability

    13.1 All materials listed in this section are part of EPA's 
rulemaking docket and are located in the Superfund Docket, 1235 
Jefferson Davis Highway, Crystal Gateway 1, Arlington, Virginia 22202, 
Suite 105 (Docket Numbers SPCC-2P, SPCC-3P, and SPCC-9P). The docket is 
available for inspection between 9 a.m. and 4 p.m., Monday through 
Friday, excluding Federal holidays.
    Appointments to review the docket can be made by calling 703-603-
9232. Docket hours are subject to change. As provided in 40 CFR part 2, 
a reasonable fee may be charged for copying services.
    13.2 The docket will mail copies of materials to requestors who are 
outside the Washington, DC metropolitan area. Materials may be available 
from other sources, as noted in this section. As provided in 40 CFR part 
2, a reasonable fee may be charged for copying services. The RCRA/
Superfund Hotline at 800-424-9346 may also provide additional 
information on where to obtain documents. To contact the RCRA/Superfund 
Hotline in the Washington, DC metropolitan area, dial 703-412-9810. The 
Telecommunications Device for the Deaf (TDD) Hotline number is 800-553-
7672, or, in the Washington, DC metropolitan area, 703-412-3323.

                             13.3 Documents

    (1) National Preparedness for Response Exercise Program (PREP). The 
PREP draft guidelines are available from United States Coast Guard 
Headquarters (G-MEP-4), 2100 Second Street, SW., Washington, DC 20593. 
(See 58 FR 53990-91, October 19, 1993, Notice of Availability of PREP 
Guidelines).
    (2) ``Guidance for Facility and Vessel Response Plans: Fish and 
Wildlife and Sensitive Environments (published in the Federal Register 
by DOC/NOAA at 59 FR 14713-22, March 29, 1994.). The guidance is 
available in the Superfund Docket (see sections 13.1 and 13.2 of this 
appendix).
    (3) ASTM Standards. ASTM F 715, ASTM F 989, ASTM F 631-99, ASTM F 
808-83 (1999). The ASTM standards are available from the American 
Society for Testing and Materials, 100 Barr Harbor Drive, West 
Conshohocken, PA 19428-2959.
    (4) Response Plans for Marine Transportation-Related Facilities, 
Interim Final Rule. Published by USCG, DOT at 58 FR 7330-76, February 5, 
1993.

[[Page 81]]



       Table 1 to Appendix E--Response Resource Operating Criteria
------------------------------------------------------------------------
                          Oil Recovery Devices
-------------------------------------------------------------------------
                                    Significant wave height
      Operating environment                   \1\             Sea state
------------------------------------------------------------------------
Rivers and Canals................  <= 1 foot...............            1
Inland...........................  <= 3 feet...............            2
Great Lakes......................  <= 4 feet...............          2-3
Ocean............................  <= 6 feet...............          3-4
------------------------------------------------------------------------


----------------------------------------------------------------------------------------------------------------
                                                      Boom
-----------------------------------------------------------------------------------------------------------------
                                                                         Use
           Boom property           -----------------------------------------------------------------------------
                                     Rivers and canals        Inland           Great Lakes           Ocean
----------------------------------------------------------------------------------------------------------------
Significant Wave Height \1\.......  <= 1..............  <= 3..............  <= 4.............  <= 6
Sea State.........................  1.................  2.................  2-3..............  3-4
Boom height--inches (draft plus     6-18..............  18-42.............  18-42............  =42
 freeboard).
Reserve Buoyancy to Weight Ratio..  2:1...............  2:1...............  2:1..............  3:1 to 4:1
Total Tensile Strength--pounds....  4,500.............  15,000-20,000.....  15,000-20,000....  =20,00
                                                                                                0
Skirt Fabric Tensile Strength--     200...............  300...............  300..............  500
 pounds.
Skirt Fabric Tear Strength--pounds  100...............  100...............  100..............  125
----------------------------------------------------------------------------------------------------------------
\1\ Oil recovery devices and boom shall be at least capable of operating in wave heights up to and including the
  values listed in Table 1 for each operating environment.


                    Table 2 to Appendix E--Removal Capacity Planning Table for Petroleum Oils
----------------------------------------------------------------------------------------------------------------
          Spill location                      Rivers and canals                 Nearshore/Inland/Great Lakes
----------------------------------------------------------------------------------------------------------------
  Sustainability of on-water oil                    3 days                                 4 days
             recovery              -----------------------------------------------------------------------------
-----------------------------------                Percent                                Percent
                                      Percent     recovered   Percent oil    Percent     recovered   Percent oil
           Oil group \1\              natural      floating     onshore      natural      floating     onshore
                                    dissipation      oil                   dissipation      oil
----------------------------------------------------------------------------------------------------------------
1--Non-persistent oils............           80           10           10           80           20           10
2--Light crudes...................           40           15           45           50           50           30
3--Medium crudes and fuels........           20           15           65           30           50           50
4--Heavy crudes and fuels.........            5           20           75           10           50          70
----------------------------------------------------------------------------------------------------------------
\1\ The response resource considerations for non-petroleum oils other than animal fats and vegetable oils are
  outlined in section 7.7 of this appendix.
Note: Group 5 oils are defined in section 1.2.8 of this appendix; the response resource considerations are
  outlined in section 7.6 of this appendix.


 Table 3 to Appendix E--Emulsification Factors for Petroleum Oil Groups
                                   \1\
Non-Persistent Oil:
  Group 1......................................................      1.0
Persistent Oil:
  Group 2......................................................      1.8
  Group 3......................................................      2.0
  Group 4......................................................      1.4
Group 5 oils are defined in section 1.2.7 of this appendix; the
 response resource considerations are outlined in section 7.6
 of this appendix.
------------------------------------------------------------------------
\1\ See sections 1.2.2 and 1.2.7 of this appendix for group designations
  for non-persistent and persistent oils, respectively.


                   Table 4 to Appendix E--On-Water Oil Recovery Resource Mobilization Factors
----------------------------------------------------------------------------------------------------------------
                         Operating area                               Tier 1          Tier 2          Tier 3
----------------------------------------------------------------------------------------------------------------
Rivers and Canals...............................................            0.30            0.40            0.60
Inland/Nearshore Great Lakes....................................            0.15            0.25           0.40
----------------------------------------------------------------------------------------------------------------
Note: These mobilization factors are for total resources mobilized, not incremental response resources.


                        Table 5 to Appendix E--Response Capability Caps by Operating Area
----------------------------------------------------------------------------------------------------------------
                                                                      Tier 1          Tier 2          Tier 3
----------------------------------------------------------------------------------------------------------------
February 18, 1993:
    All except Rivers & Canals, Great Lakes.....................    10K bbls/day    20K bbls/day   40K bbls/day.

[[Page 82]]

 
    Great Lakes.................................................     5K bbls/day    10K bbls/day   20K bbls/day.
    Rivers & Canals.............................................   1.5K bbls/day   3.0K bbls/day  6.0K bbls/day.
February 18, 1998:
    All except Rivers & Canals, Great Lakes.....................  12.5K bbls/day    25K bbls/day   50K bbls/day.
    Great Lakes.................................................  6.35K bbls/day  12.3K bbls/day   25K bbls/day.
    Rivers & Canals.............................................    1.875K bbls/  3.75K bbls/day  7.5K bbls/day.
                                                                             day
February 18, 2003:
    All except Rivers & Canals, Great Lakes.....................             TBD             TBD            TBD.
    Great Lakes.................................................             TBD             TBD            TBD.
    Rivers & Canals.............................................             TBD             TBD            TBD.
----------------------------------------------------------------------------------------------------------------
Note: The caps show cumulative overall effective daily recovery capacity, not incremental increases.
TBD=To Be Determined.


            Table 6 to Appendix E--Removal Capacity Planning Table for Animal Fats and Vegetable Oils
----------------------------------------------------------------------------------------------------------------
          Spill location                      Rivers and canals                 Nearshore/Inland/Great Lakes
----------------------------------------------------------------------------------------------------------------
  Sustainability of on-water oil                    3 days                                 4 days
             recovery              -----------------------------------------------------------------------------
-----------------------------------                Percent      Percent                   Percent      Percent
                                      Percent     recovered    recovered     Percent     recovered    recovered
           Oil group \1\              natural      floating     oil from     natural      floating     oil from
                                        loss         oil        onshore        loss         oil        onshore
----------------------------------------------------------------------------------------------------------------
Group A...........................           40           15           45           50           20           30
Group B...........................           20           15           65           30           20          50
----------------------------------------------------------------------------------------------------------------
\1\ Substances with a specific gravity greater than 1.0 generally sink below the surface of the water. Response
  resource considerations are outlined in section 10.6 of this appendix. The owner or operator of the facility
  is responsible for determining appropriate response resources for Group C oils including locating oil on the
  bottom or suspended in the water column; containment boom or other appropriate methods for containing oil that
  may remain floating on the surface; and dredges, pumps, or other equipment to recover animal fats or vegetable
  oils from the bottom and shoreline.
Note: Group C oils are defined in sections 1.2.1 and 1.2.9 of this appendix; the response resource procedures
  are discussed in section 10.6 of this appendix.


    Table 7 to Appendix E--Emulsification Factors for Animal Fats and
                             Vegetable Oils
Oil Group \1\:
  Group A......................................................      1.0
  Group B......................................................      2.0
------------------------------------------------------------------------
\1\ Substances with a specific gravity greater than 1.0 generally sink
  below the surface of the water. Response resource considerations are
  outlined in section 10.6 of this appendix. The owner or operator of
  the facility is responsible for determining appropriate response
  resources for Group C oils including locating oil on the bottom or
  suspended in the water column; containment boom or other appropriate
  methods for containing oil that may remain floating on the surface;
  and dredges, pumps, or other equipment to recover animal fats or
  vegetable oils from the bottom and shoreline.
Note: Group C oils are defined in sections 1.2.1 and 1.2.9 of this
  appendix; the response resource procedures are discussed in section
  10.6 of this appendix.


[[Page 83]]

                        Attachments to Appendix E
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[GRAPHIC] [TIFF OMITTED] TR30JN00.067


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[GRAPHIC] [TIFF OMITTED] TR30JN00.068

[GRAPHIC] [TIFF OMITTED] TR30JN00.069


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[GRAPHIC] [TIFF OMITTED] TR30JN00.070


[59 FR 34111, July 1, 1994; 59 FR 49006, Sept. 26, 1994, as amended at 
65 FR 40806, 40807, June 30, 2000; 65 FR 47325, Aug. 2, 2000; 66 FR 
47325, Aug. 2, 2000; 66 FR 35460, 35461, June 29, 2001]



      Sec. Appendix F to Part 112--Facility-Specific Response Plan

                            Table of Contents

1.0 Model Facility-Specific Response Plan
1.1 Emergency Response Action Plan
1.2 Facility Information
1.3 Emergency Response Information
    1.3.1 Notification
    1.3.2 Response Equipment List
    1.3.3 Response Equipment Testing/Deployment
    1.3.4 Personnel
    1.3.5 Evacuation Plans
    1.3.6 Qualified Individual's Duties
1.4 Hazard Evaluation
    1.4.1 Hazard Identification
    1.4.2 Vulnerability Analysis
    1.4.3 Analysis of the Potential for an Oil Spill
    1.4.4 Facility Reportable Oil Spill History
1.5 Discharge Scenarios
    1.5.1 Small and Medium Discharges
    1.5.2 Worst Case Discharge
1.6 Discharge Detection Systems
    1.6.1 Discharge Detection By Personnel
    1.6.2 Automated Discharge Detection

[[Page 91]]

1.7 Plan Implementation
    1.7.1 Response Resources for Small, Medium, and Worst Case Spills
    1.7.2 Disposal Plans
    1.7.3 Containment and Drainage Planning
1.8 Self-Inspection, Drills/Exercises, and Response Training
    1.8.1 Facility Self-Inspection
    1.8.1.1 Tank Inspection
    1.8.1.2 Response Equipment Inspection
    1.8.1.3 Secondary Containment Inspection
    1.8.2 Facility Drills/Exercises
    1.8.2.1 Qualified Individual Notification Drill Logs
    1.8.2.2 Spill Management Team Tabletop Exercise Logs
    1.8.3 Response Training
    1.8.3.1 Personnel Response Training Logs
    1.8.3.2 Discharge Prevention Meeting Logs
1.9 Diagrams
1.10 Security
2.0 Response Plan Cover Sheet
3.0 Acronyms
4.0 References

                1.0 Model Facility-Specific Response Plan

    (A) Owners or operators of facilities regulated under this part 
which pose a threat of substantial harm to the environment by 
discharging oil into or on navigable waters or adjoining shorelines are 
required to prepare and submit facility-specific response plans to EPA 
in accordance with the provisions in this appendix. This appendix 
further describes the required elements in Sec. 112.20(h).
    (B) Response plans must be sent to the appropriate EPA Regional 
office. Figure F-1 of this Appendix lists each EPA Regional office and 
the address where owners or operators must submit their response plans. 
Those facilities deemed by the Regional Administrator (RA) to pose a 
threat of significant and substantial harm to the environment will have 
their plans reviewed and approved by EPA. In certain cases, information 
required in the model response plan is similar to information currently 
maintained in the facility's Spill Prevention, Control, and 
Countermeasures (SPCC) Plan as required by 40 CFR 112.3. In these cases, 
owners or operators may reproduce the information and include a 
photocopy in the response plan.
    (C) A complex may develop a single response plan with a set of core 
elements for all regulating agencies and separate sections for the non-
transportation-related and transportation-related components, as 
described in Sec. 112.20(h). Owners or operators of large facilities 
that handle, store, or transport oil at more than one geographically 
distinct location (e.g., oil storage areas at opposite ends of a single, 
continuous parcel of property) shall, as appropriate, develop separate 
sections of the response plan for each storage area.

[[Page 92]]

[GRAPHIC] [TIFF OMITTED] TC01MR92.015

                   1.1 Emergency Response Action Plan

    Several sections of the response plan shall be co-located for easy 
access by response personnel during an actual emergency or oil 
discharge. This collection of sections shall be called the Emergency 
Response Action Plan. The Agency intends that the Action Plan contain 
only as much information as is necessary to combat the discharge and be 
arranged so response actions are not delayed. The Action Plan may be 
arranged in a number of ways. For example, the sections of the Emergency 
Response Action Plan may be photocopies or condensed versions of the

[[Page 93]]

forms included in the associated sections of the response plan. Each 
Emergency Response Action Plan section may be tabbed for quick 
reference. The Action Plan shall be maintained in the front of the same 
binder that contains the complete response plan or it shall be contained 
in a separate binder. In the latter case, both binders shall be kept 
together so that the entire plan can be accessed by the qualified 
individual and appropriate spill response personnel. The Emergency 
Response Action Plan shall be made up of the following sections:

1. Qualified Individual Information (Section 1.2) partial
2. Emergency Notification Phone List (Section 1.3.1) partial
3. Spill Response Notification Form (Section 1.3.1) partial
4. Response Equipment List and Location (Section 1.3.2) complete
5. Response Equipment Testing and Deployment (Section 1.3.3) complete
6. Facility Response Team (Section 1.3.4) partial
7. Evacuation Plan (Section 1.3.5) condensed
8. Immediate Actions (Section 1.7.1) complete
9. Facility Diagram (Section 1.9) complete

                        1.2 Facility Information

    The facility information form is designed to provide an overview of 
the site and a description of past activities at the facility. Much of 
the information required by this section may be obtained from the 
facility's existing SPCC Plan.
    1.2.1 Facility name and location: Enter facility name and street 
address. Enter the address of corporate headquarters only if corporate 
headquarters are physically located at the facility. Include city, 
county, state, zip code, and phone number.
    1.2.2 Latitude and Longitude: Enter the latitude and longitude of 
the facility. Include degrees, minutes, and seconds of the main entrance 
of the facility.
    1.2.3 Wellhead Protection Area: Indicate if the facility is located 
in or drains into a wellhead protection area as defined by the Safe 
Drinking Water Act of 1986 (SDWA). \1\ The response plan requirements in 
the Wellhead Protection Program are outlined by the State or Territory 
in which the facility resides.
---------------------------------------------------------------------------

    \1\ A wellhead protection area is defined as the surface and 
subsurface area surrounding a water well or wellfield, supplying a 
public water system, through which contaminants are reasonably likely to 
move toward and reach such water well or wellfield. For further 
information regarding State and territory protection programs, facility 
owners or operators may contact the SDWA Hotline at 1-800-426-4791.
---------------------------------------------------------------------------

    1.2.4 Owner/operator: Write the name of the company or person 
operating the facility and the name of the person or company that owns 
the facility, if the two are different. List the address of the owner, 
if the two are different.
    1.2.5 Qualified Individual: Write the name of the qualified 
individual for the entire facility. If more than one person is listed, 
each individual indicated in this section shall have full authority to 
implement the facility response plan. For each individual, list: name, 
position, home and work addresses (street addresses, not P.O. boxes), 
emergency phone number, and specific response training experience.
    1.2.6 Date of Oil Storage Start-up: Enter the year which the present 
facility first started storing oil.
    1.2.7 Current Operation: Briefly describe the facility's operations 
and include the North American Industrial Classification System (NAICS) 
code.
    1.2.8 Dates and Type of Substantial Expansion: Include information 
on expansions that have occurred at the facility. Examples of such 
expansions include, but are not limited to: Throughput expansion, 
addition of a product line, change of a product line, and installation 
of additional oil storage capacity. The data provided shall include all 
facility historical information and detail the expansion of the 
facility. An example of substantial expansion is any material alteration 
of the facility which causes the owner or operator of the facility to 
re-evaluate and increase the response equipment necessary to adequately 
respond to a worst case discharge from the facility.
Date of Last Update: ------

                        Facility Information Form

Facility Name:__________________________________________________________
 Location (Street Address):_____________________________________________
    City: ------ State: ------ Zip: ------
    County: ------ Phone Number: ( ) ------
    Latitude: ------ Degrees ------ Minutes ------ Seconds
    Longitude: ------ Degrees ------ Minutes ------ Seconds
Wellhead Protection Area:_______________________________________________
Owner:__________________________________________________________________
 Owner Location (Street Address):_______________________________________

     (if different from Facility Address)
    City: ------ State:------ Zip: ------
    County: ------ Phone Number: ( ) ------
Operator (if not Owner):________________________________________________
Qualified Individual(s): (attach additional sheets if more than one)
 Name:__________________________________________________________________
 Position:______________________________________________________________
 Work Address:__________________________________________________________
 Home Address:__________________________________________________________
 Emergency Phone Number: ( )____________________________________________

[[Page 94]]

Date of Oil Storage Start-up:___________________________________________
Current Operations:_____________________________________________________
________________________________________________________________________
________________________________________________________________________
Date(s) and Type(s) of Substantial Expansion(s):________________________
________________________________________________________________________
(Attach additional sheets if necessary)

                   1.3 Emergency Response Information

    (A) The information provided in this section shall describe what 
will be needed in an actual emergency involving the discharge of oil or 
a combination of hazardous substances and oil discharge. The Emergency 
Response Information section of the plan must include the following 
components:
    (1) The information provided in the Emergency Notification Phone 
List in section 1.3.1 identifies and prioritizes the names and phone 
numbers of the organizations and personnel that need to be notified 
immediately in the event of an emergency. This section shall include all 
the appropriate phone numbers for the facility. These numbers must be 
verified each time the plan is updated. The contact list must be 
accessible to all facility employees to ensure that, in case of a 
discharge, any employee on site could immediately notify the appropriate 
parties.
    (2) The Spill Response Notification Form in section 1.3.1 creates a 
checklist of information that shall be provided to the National Response 
Center (NRC) and other response personnel. All information on this 
checklist must be known at the time of notification, or be in the 
process of being collected. This notification form is based on a similar 
form used by the NRC. Note: Do not delay spill notification to collect 
the information on the list.
    (3) Section 1.3.2 provides a description of the facility's list of 
emergency response equipment and location of the response equipment. 
When appropriate, the amount of oil that emergency response equipment 
can handle and any limitations (e.g., launching sites) must be 
described.
    (4) Section 1.3.3 provides information regarding response equipment 
tests and deployment drills. Response equipment deployment exercises 
shall be conducted to ensure that response equipment is operational and 
the personnel who would operate the equipment in a spill response are 
capable of deploying and operating it. Only a representative sample of 
each type of response equipment needs to be deployed and operated, as 
long as the remainder is properly maintained. If appropriate, testing of 
response equipment may be conducted while it is being deployed. 
Facilities without facility-owned response equipment must ensure that 
the oil spill removal organization that is identified in the response 
plan to provide this response equipment certifies that the deployment 
exercises have been met. Refer to the National Preparedness for Response 
Exercise Program (PREP) Guidelines (see Appendix E to this part, section 
13, for availability), which satisfy Oil Pollution Act (OPA) response 
exercise requirements.
    (5) Section 1.3.4 lists the facility response personnel, including 
those employed by the facility and those under contract to the facility 
for response activities, the amount of time needed for personnel to 
respond, their responsibility in the case of an emergency, and their 
level of response training. Three different forms are included in this 
section. The Emergency Response Personnel List shall be composed of all 
personnel employed by the facility whose duties involve responding to 
emergencies, including oil discharges, even when they are not physically 
present at the site. An example of this type of person would be the 
Building Engineer-in-Charge or Plant Fire Chief. The second form is a 
list of the Emergency Response Contractors (both primary and secondary) 
retained by the facility. Any changes in contractor status must be 
reflected in updates to the response plan. Evidence of contracts with 
response contractors shall be included in this section so that the 
availability of resources can be verified. The last form is the Facility 
Response Team List, which shall be composed of both emergency response 
personnel (referenced by job title/position) and emergency response 
contractors, included in one of the two lists described above, that will 
respond immediately upon discovery of an oil discharge or other 
emergency (i.e., the first people to respond). These are to be persons 
normally on the facility premises or primary response contractors. 
Examples of these personnel would be the Facility Hazardous Materials 
(HAZMAT) Spill Team 1, Facility Fire Engine Company 1, Production 
Supervisor, or Transfer Supervisor. Company personnel must be able to 
respond immediately and adequately if contractor support is not 
available.
    (6) Section 1.3.5 lists factors that must, as appropriate, be 
considered when preparing an evacuation plan.
    (7) Section 1.3.6 references the responsibilities of the qualified 
individual for the facility in the event of an emergency.
    (B) The information provided in the emergency response section will 
aid in the assessment of the facility's ability to respond to a worst 
case discharge and will identify additional assistance that may be 
needed. In addition, the facility owner or operator may want to produce 
a wallet-size card containing a checklist of the immediate response and 
notification steps to be taken in the event of an oil discharge.

                           1.3.1 Notification

Date of Last Update:____________________________________________________

[[Page 95]]

            Emergency Notification Phone List Whom To Notify

Reporter's Name:________________________________________________________
Date:___________________________________________________________________
Facility Name:__________________________________________________________
Owner Name:_____________________________________________________________
Facility Identification Number:_________________________________________
Date and Time of Each NRC Notification:_________________________________

------------------------------------------------------------------------
                     Organization                          Phone No.
------------------------------------------------------------------------
1. National Response Center (NRC):                        1-800-424-8802
                                                      ------------------
 
2. Qualified Individual:
                                                      ------------------
 
  Evening Phone:
                                                      ------------------
 
3. Company Response Team:
                                                      ------------------
 
  Evening Phone:
                                                      ------------------
 
4. Federal On-Scene Coordinator (OSC) and/or Regional
 Response Center (RRC):
                                                      ------------------
 
  Evening Phone(s):
                                                      ------------------
 
  Pager Number(s):
                                                      ------------------
 
5. Local Response Team (Fire Dept./Cooperatives):
                                                      ------------------
 
6. Fire Marshall:
                                                      ------------------
 
  Evening Phone:
                                                      ------------------
 
7. State Emergency Response Commission (SERC):
                                                      ------------------
 
  Evening Phone:
                                                      ------------------
 
8. State Police:
                                                      ------------------
 
9. Local Emergency Planning Committee (LEPC):
                                                      ------------------
 
10. Local Water Supply System:
                                                      ------------------
 
  Evening Phone:
                                                      ------------------
 
11. Weather Report:
                                                      ------------------
 
12. Local Television/Radio Station for Evacuation
 Notification:
                                                      ------------------
 
13. Hospitals:
                                                      ------------------
------------------------------------------------------------------------


                    Spill Response Notification Form

Reporter's Last Name:___________________________________________________
First:__________________________________________________________________
M.I.:___________________________________________________________________
Position:_______________________________________________________________
Phone Numbers:

    Day ( ) -
    Evening ( ) -

Company:________________________________________________________________

Organization Type:______________________________________________________

Address:________________________________________________________________

________________________________________________________________________

City:___________________________________________________________________

State:__________________________________________________________________

Zip:____________________________________________________________________
Were Materials Discharged? ------ (Y/N) Confidential? ------ (Y/N)
Meeting Federal Obligations to Report? ------ (Y/N) Date Called: ------
Calling for Responsible Party? ------ (Y/N) Time Called: ------

                          Incident Description

Source and/or Cause of Incident:________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

Date of Incident:_______________________________________________________
Time of Incident: ------ AM/PM

Incident Address/Location:______________________________________________

________________________________________________________________________
Nearest City:---------------- State: ------ County: -------- Zip: ------
--
Distance from City: ------ Units of Measure: ------ Direction from City: 
------
Section: -------- Township: -------- Range: -------- Borough: --------
Container Type: ------ Tank Oil Storage Capacity: -------- Units of 
Measure: ------
Facility Oil Storage Capacity: -------- Units of Measure: ------
Facility Latitude: ------ Degrees ------ Minutes ------ Seconds
Facility Longitude: ------ Degrees ------ Minutes ------ Seconds

                                Material

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Material Discharged
             CHRIS Code                Discharged quantity       Unit of measure            in water               Quantity           Unit of measure
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 96]]

                             Response Action

Actions Taken to Correct, Control or Mitigate Incident:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

                                 Impact

Number of Injuries: ------ Number of Deaths: ------
Were there Evacuations? ------ (Y/N) Number Evacuated: ------
Was there any Damage? ------ (Y/N)
Damage in Dollars (approximate):________________________________________

Medium Affected:________________________________________________________

Description:____________________________________________________________

More Information about Medium:__________________________________________

________________________________________________________________________

________________________________________________________________________

                         Additional Information

Any information about the incident not recorded elsewhere in the report:

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

                          Caller Notifications

EPA? ------ (Y/N) USCG? ------ (Y/N) State? ------ (Y/N)
Other? ------ (Y/N) Describe: ------------

                      1.3.2 Response Equipment List

    Date of Last Update:------

                    Facility Response Equipment List

1. Skimmers/Pumps--Operational Status:__________________________________
 Type, Model, and Year:_________________________________________________
________________________________________________________________________
 Type Model Year
 Number:________________________________________________________________
 Capacity: -------- gal./min.
 Daily Effective Recovery Rate:_________________________________________
 Storage Location(s):___________________________________________________
 Date Fuel Last Changed:________________________________________________
2. Boom--Operational Status:____________________________________________
 Type, Model, and Year:_________________________________________________
 Type Model Year
 Number:________________________________________________________________
    Size (length): -------- ft.
    Containment Area: -------- sq. ft.
 Storage Location:______________________________________________________
    3. Chemicals Stored (Dispersants listed on EPA's NCP Product 
Schedule)

----------------------------------------------------------------------------------------------------------------
                                                                               Date      Treatment     Storage
                            Type                                 Amount     purchased     capacity     location
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------

    Were appropriate procedures used to receive approval for use of 
dispersants in accordance with the NCP (40 CFR 300.910) and the Area 
Contingency Plan (ACP), where applicable?------ (Y/N).
    Name and State of On-Scene Coordinator (OSC) authorizing use: ------ 
.
    Date Authorized: ------ .
    4. Dispersant Dispensing Equipment--Operational Status: ------ .

------------------------------------------------------------------------
                                                               Response
          Type and year              Capacity     Storage        time
                                                  location    (minutes)
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

5. Sorbents--Operational Status:________________________________________
 Type and Year Purchased:_______________________________________________
 Amount:________________________________________________________________
 Absorption Capacity (gal.):____________________________________________
 Storage Location(s):___________________________________________________
6. Hand Tools--Operational Status:______________________________________

------------------------------------------------------------------------
     Type and year               Quantity            Storage  location
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

[[Page 97]]

 
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

    7. Communication Equipment (include operating frequency and channel 
and/or cellular phone numbers)--Operational Status: ------

------------------------------------------------------------------------
                                                     Storage location/
     Type and year               Quantity                 number
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

    8. Fire Fighting and Personnel Protective Equipment--Operational 
Status: ------

------------------------------------------------------------------------
     Type and year               Quantity            Storage  location
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

    9. Other (e.g., Heavy Equipment, Boats and Motors)--Operational 
Status: ------

------------------------------------------------------------------------
     Type and year               Quantity            Storage  location
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------
 
------------------------------------------------------------------------

               1.3.3 Response Equipment Testing/Deployment

    Date of Last Update:--------

           Response Equipment Testing and Deployment Drill Log

Last Inspection or Response Equipment Test Date:________________________
Inspection Frequency:___________________________________________________
Last Deployment Drill Date:_____________________________________________
Deployment Frequency:___________________________________________________
Oil Spill Removal Organization Certification (if applicable):___________

                             1.3.4 Personnel

    Date of Last Update:--------

                                                              Emergency Response Personnel
                                                                    Company Personnel
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                      Responsibility during response
           Name                      Phone \1\                 Response time                      action                   Response training type/date
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.
--------------------------------------------------------------------------------------------------------------------------------------------------------
2.
--------------------------------------------------------------------------------------------------------------------------------------------------------
3.
--------------------------------------------------------------------------------------------------------------------------------------------------------
4.
--------------------------------------------------------------------------------------------------------------------------------------------------------
5.
--------------------------------------------------------------------------------------------------------------------------------------------------------
6.
--------------------------------------------------------------------------------------------------------------------------------------------------------
7.
--------------------------------------------------------------------------------------------------------------------------------------------------------
8.
--------------------------------------------------------------------------------------------------------------------------------------------------------
9.
--------------------------------------------------------------------------------------------------------------------------------------------------------
10.
--------------------------------------------------------------------------------------------------------------------------------------------------------
11.
--------------------------------------------------------------------------------------------------------------------------------------------------------
12.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Phone number to be used when person is not on-site.


                                         Emergency Response Contractors
                                          Date of Last Update: --------
----------------------------------------------------------------------------------------------------------------
      Contractor               Phone              Response time              Contract responsibility \1\
----------------------------------------------------------------------------------------------------------------
1.
----------------------------------------------------------------------------------------------------------------
 
                                                                    --------------------------------------------
 
                                                                    --------------------------------------------

[[Page 98]]

 
2.
----------------------------------------------------------------------------------------------------------------
 
                                                                    --------------------------------------------
 
                                                                    --------------------------------------------
3.
----------------------------------------------------------------------------------------------------------------
 
                                                                    --------------------------------------------
 
                                                                    --------------------------------------------
4.
----------------------------------------------------------------------------------------------------------------
 
                                                                    --------------------------------------------
 
                                                                    --------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
 \1\ Include evidence of contracts/agreements with response contractors to ensure the availability of personnel
  and response equipment.


                                             Facility Response Team
                                          Date of Last Update:--------
----------------------------------------------------------------------------------------------------------------
                                                                                  Phone or pager number (day/
              Team member                      Response time (minutes)                     evening)
----------------------------------------------------------------------------------------------------------------
Qualified Individual:
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
                                         ...................................   /
----------------------------------------------------------------------------------------------------------------
Note: If the facility uses contracted help in an emergency response situation, the owner or operator must
  provide the contractors' names and review the contractors' capacities to provide adequate personnel and
  response equipment.


[[Page 99]]

                         1.3.5 Evacuation Plans

    1.3.5.1 Based on the analysis of the facility, as discussed 
elsewhere in the plan, a facility-wide evacuation plan shall be 
developed. In addition, plans to evacuate parts of the facility that are 
at a high risk of exposure in the event of a discharge or other release 
must be developed. Evacuation routes must be shown on a diagram of the 
facility (see section 1.9 of this appendix). When developing evacuation 
plans, consideration must be given to the following factors, as 
appropriate:
    (1) Location of stored materials;
    (2) Hazard imposed by discharged material;
    (3) Discharge flow direction;
    (4) Prevailing wind direction and speed;
    (5) Water currents, tides, or wave conditions (if applicable);
    (6) Arrival route of emergency response personnel and response 
equipment;
    (7) Evacuation routes;
    (8) Alternative routes of evacuation;
    (9) Transportation of injured personnel to nearest emergency medical 
facility;
    (10) Location of alarm/notification systems;
    (11) The need for a centralized check-in area for evacuation 
validation (roll call);
    (12) Selection of a mitigation command center; and
    (13) Location of shelter at the facility as an alternative to 
evacuation.
    1.3.5.2 One resource that may be helpful to owners or operators in 
preparing this section of the response plan is The Handbook of Chemical 
Hazard Analysis Procedures by the Federal Emergency Management Agency 
(FEMA), Department of Transportation (DOT), and EPA. The Handbook of 
Chemical Hazard Analysis Procedures is available from: FEMA , 
Publication Office, 500 C. Street, S.W., Washington, DC 20472, (202) 
646-3484.
    1.3.5.3 As specified in Sec. 112.20(h)(1)(vi), the facility owner 
or operator must reference existing community evacuation plans, as 
appropriate.

                   1.3.6 Qualified Individual's Duties

    The duties of the designated qualified individual are specified in 
Sec. 112.20(h)(3)(ix). The qualified individual's duties must be 
described and be consistent with the minimum requirements in Sec. 
112.20(h)(3)(ix). In addition, the qualified individual must be 
identified with the Facility Information in section 1.2 of the response 
plan.

                          1.4 Hazard Evaluation

    This section requires the facility owner or operator to examine the 
facility's operations closely and to predict where discharges could 
occur. Hazard evaluation is a widely used industry practice that allows 
facility owners or operators to develop a complete understanding of 
potential hazards and the response actions necessary to address these 
hazards. The Handbook of Chemical Hazard Analysis Procedures, prepared 
by the EPA, DOT, and the FEMA and the Hazardous Materials Emergency 
Planning Guide (NRT-1), prepared by the National Response Team are good 
references for conducting a hazard analysis. Hazard identification and 
evaluation will assist facility owners or operators in planning for 
potential discharges, thereby reducing the severity of discharge impacts 
that may occur in the future. The evaluation also may help the operator 
identify and correct potential sources of discharges. In addition, 
special hazards to workers and emergency response personnel's health and 
safety shall be evaluated, as well as the facility's oil spill history.

                       1.4.1 Hazard Identification

    The Tank and Surface Impoundment (SI) forms, or their equivalent, 
that are part of this section must be completed according to the 
directions below. (``Surface Impoundment'' means a facility or part of a 
facility which is a natural topographic depression, man-made excavation, 
or diked area formed primarily of earthen materials (although it may be 
lined with man-made materials), which is designed to hold an 
accumulation of liquid wastes or wastes containing free liquids, and 
which is not an injection well or a seepage facility.) Similar 
worksheets, or their equivalent, must be developed for any other type of 
storage containers.
    (1) List each tank at the facility with a separate and distinct 
identifier. Begin aboveground tank identifiers with an ``A'' and 
belowground tank identifiers with a ``B'', or submit multiple sheets 
with the aboveground tanks and belowground tanks on separate sheets.
    (2) Use gallons for the maximum capacity of a tank; and use square 
feet for the area.
    (3) Using the appropriate identifiers and the following 
instructions, fill in the appropriate forms:
    (a) Tank or SI number--Using the aforementioned identifiers (A or B) 
or multiple reporting sheets, identify each tank or SI at the facility 
that stores oil or hazardous materials.
    (b) Substance Stored--For each tank or SI identified, record the 
material that is stored therein. If the tank or SI is used to store more 
than one material, list all of the stored materials.
    (c) Quantity Stored--For each material stored in each tank or SI, 
report the average volume of material stored on any given day.
    (d) Tank Type or Surface Area/Year--For each tank, report the type 
of tank (e.g., floating top), and the year the tank was originally 
installed. If the tank has been refabricated, the year that the latest 
refabrication was completed must be recorded in parentheses next to the 
year installed. For

[[Page 100]]

each SI, record the surface area of the impoundment and the year it went 
into service.
    (e) Maximum Capacity--Record the operational maximum capacity for 
each tank and SI. If the maximum capacity varies with the season, record 
the upper and lower limits.
    (f) Failure/Cause--Record the cause and date of any tank or SI 
failure which has resulted in a loss of tank or SI contents.
    (4) Using the numbers from the tank and SI forms, label a schematic 
drawing of the facility. This drawing shall be identical to any 
schematic drawings included in the SPCC Plan.
    (5) Using knowledge of the facility and its operations, describe the 
following in writing:
    (a) The loading and unloading of transportation vehicles that risk 
the discharge of oil or release of hazardous substances during transport 
processes. These operations may include loading and unloading of trucks, 
railroad cars, or vessels. Estimate the volume of material involved in 
transfer operations, if the exact volume cannot be determined.
    (b) Day-to-day operations that may present a risk of discharging oil 
or releasing a hazardous substance. These activities include scheduled 
venting, piping repair or replacement, valve maintenance, transfer of 
tank contents from one tank to another, etc. (not including 
transportation-related activities). Estimate the volume of material 
involved in these operations, if the exact volume cannot be determined.
    (c) The secondary containment volume associated with each tank and/
or transfer point at the facility. The numbering scheme developed on the 
tables, or an equivalent system, must be used to identify each 
containment area. Capacities must be listed for each individual unit 
(tanks, slumps, drainage traps, and ponds), as well as the facility 
total.
    (d) Normal daily throughput for the facility and any effect on 
potential discharge volumes that a negative or positive change in that 
throughput may cause.

                                                             Hazard Identification Tanks \1\
                                                              Date of Last Update: --------
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      Substance Stored (Oil
              Tank No.                    and Hazardous          Quantity Stored         Tank Type/Year        Maximum Capacity        Failure/Cause
                                           Substance)               (gallons)                                     (gallons)
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 \1\ Tank = any container that stores oil.
Attach as many sheets as necessary.


                                                    Hazard Identification Surface Impoundments (SIs)
                                                              Date of Last Update: --------
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Quantity Stored                               Maximum Capacity
               SI No.                   Substance Stored            (gallons)          Surface Area/Year          (gallons)            Failure/Cause
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 101]]

 
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
 Attach as many sheets as necessary.

                      1.4.2 Vulnerability Analysis

    The vulnerability analysis shall address the potential effects 
(i.e., to human health, property, or the environment) of an oil 
discharge. Attachment C-III to Appendix C to this part provides a method 
that owners or operators shall use to determine appropriate distances 
from the facility to fish and wildlife and sensitive environments. 
Owners or operators can use a comparable formula that is considered 
acceptable by the RA. If a comparable formula is used, documentation of 
the reliability and analytical soundness of the formula must be attached 
to the response plan cover sheet. This analysis must be prepared for 
each facility and, as appropriate, must discuss the vulnerability of:
    (1) Water intakes (drinking, cooling, or other);
    (2) Schools;
    (3) Medical facilities;
    (4) Residential areas;
    (5) Businesses;
    (6) Wetlands or other sensitive environments; \2\
---------------------------------------------------------------------------

    \2\ Refer to the DOC/NOAA ``Guidance for Facility and Vessel 
Response Plans: Fish and Wildlife and Sensitive Environments'' (See 
appendix E to this part, section 13, for availability).
---------------------------------------------------------------------------

    (7) Fish and wildlife;
    (8) Lakes and streams;
    (9) Endangered flora and fauna;
    (10) Recreational areas;
    (11) Transportation routes (air, land, and water);
    (12) Utilities; and
    (13) Other areas of economic importance (e.g., beaches, marinas) 
including terrestrially sensitive environments, aquatic environments, 
and unique habitats.

          1.4.3 Analysis of the Potential for an Oil Discharge

    Each owner or operator shall analyze the probability of a discharge 
occurring at the facility. This analysis shall incorporate factors such 
as oil discharge history, horizontal range of a potential discharge, and 
vulnerability to natural disaster, and shall, as appropriate, 
incorporate other factors such as tank age. This analysis will provide 
information for developing discharge scenarios for a worst case 
discharge and small and medium discharges and aid in the development of 
techniques to reduce the size and frequency of discharges. The owner or 
operator may need to research the age of the tanks the oil discharge 
history at the facility.

               1.4.4 Facility Reportable Oil Spill History

    Briefly describe the facility's reportable oil spill \3\ history for 
the entire life of the facility to the extent that such information is 
reasonably identifiable, including:
---------------------------------------------------------------------------

    \3\ As described in 40 CFR part 110, reportable oil spills are those 
that: (a) violate applicable water quality standards, or (b) cause a 
film or sheen upon or discoloration of the surface of the water or 
adjoining shorelines or cause a sludge or emulsion to be deposited 
beneath the surface of the water or upon adjoining shorelines.
---------------------------------------------------------------------------

    (1) Date of discharge(s);
    (2) List of discharge causes;
    (3) Material(s) discharged;
    (4) Amount discharged in gallons;
    (5) Amount of discharge that reached navigable waters, if 
applicable;
    (6) Effectiveness and capacity of secondary containment;
    (7) Clean-up actions taken;
    (8) Steps taken to reduce possibility of recurrence;
    (9) Total oil storage capacity of the tank(s) or impoundment(s) from 
which the material discharged;
    (10) Enforcement actions;
    (11) Effectiveness of monitoring equipment; and
    (12) Description(s) of how each oil discharge was detected.


[[Page 102]]


The information solicited in this section may be similar to requirements 
in 40 CFR 112.4(a). Any duplicate information required by Sec. 112.4(a) 
may be photocopied and inserted.

                         1.5 Discharge Scenarios

    In this section, the owner or operator is required to provide a 
description of the facility's worst case discharge, as well as a small 
and medium discharge, as appropriate. A multi-level planning approach 
has been chosen because the response actions to a discharge (i.e., 
necessary response equipment, products, and personnel) are dependent on 
the magnitude of the discharge. Planning for lesser discharges is 
necessary because the nature of the response may be qualitatively 
different depending on the quantity of the discharge. The facility owner 
or operator shall discuss the potential direction of the discharge 
pathway.

                    1.5.1 Small and Medium Discharges

    1.5.1.1 To address multi-level planning requirements, the owner or 
operator must consider types of facility-specific discharge scenarios 
that may contribute to a small or medium discharge. The scenarios shall 
account for all the operations that take place at the facility, 
including but not limited to:
    (1) Loading and unloading of surface transportation;
    (2) Facility maintenance;
    (3) Facility piping;
    (4) Pumping stations and sumps;
    (5) Oil storage tanks;
    (6) Vehicle refueling; and
    (7) Age and condition of facility and components.
    1.5.1.2 The scenarios shall also consider factors that affect the 
response efforts required by the facility. These include but are not 
limited to:
    (1) Size of the discharge;
    (2) Proximity to downgradient wells, waterways, and drinking water 
intakes;
    (3) Proximity to fish and wildlife and sensitive environments;
    (4) Likelihood that the discharge will travel offsite (i.e., 
topography, drainage);
    (5) Location of the material discharged (i.e., on a concrete pad or 
directly on the soil);
    (6) Material discharged;
    (7) Weather or aquatic conditions (i.e., river flow);
    (8) Available remediation equipment;
    (9) Probability of a chain reaction of failures; and
    (10) Direction of discharge pathway.

                       1.5.2 Worst Case Discharge

    1.5.2.1 In this section, the owner or operator must identify the 
worst case discharge volume at the facility. Worksheets for production 
and non-production facility owners or operators to use when calculating 
worst case discharge are presented in Appendix D to this part. When 
planning for the worst case discharge response, all of the 
aforementioned factors listed in the small and medium discharge section 
of the response plan shall be addressed.
    1.5.2.2 For onshore storage facilities and production facilities, 
permanently manifolded oil storage tanks are defined as tanks that are 
designed, installed, and/or operated in such a manner that the multiple 
tanks function as one storage unit (i.e., multiple tank volumes are 
equalized). In this section of the response plan, owners or operators 
must provide evidence that oil storage tanks with common piping or 
piping systems are not operated as one unit. If such evidence is 
provided and is acceptable to the RA, the worst case discharge volume 
shall be based on the combined oil storage capacity of all manifold 
tanks or the oil storage capacity of the largest single oil storage tank 
within the secondary containment area, whichever is greater. For 
permanently manifolded oil storage tanks that function as one storage 
unit, the worst case discharge shall be based on the combined oil 
storage capacity of all manifolded tanks or the oil storage capacity of 
the largest single tank within a secondary containment area, whichever 
is greater. For purposes of the worst case discharge calculation, 
permanently manifolded oil storage tanks that are separated by internal 
divisions for each tank are considered to be single tanks and individual 
manifolded tank volumes are not combined.

                     1.6 Discharge Detection Systems

    In this section, the facility owner or operator shall provide a 
detailed description of the procedures and equipment used to detect 
discharges. A section on discharge detection by personnel and a 
discussion of automated discharge detection, if applicable, shall be 
included for both regular operations and after hours operations. In 
addition, the facility owner or operator shall discuss how the 
reliability of any automated system will be checked and how frequently 
the system will be inspected.

                 1.6.1 Discharge Detection by Personnel

    In this section, facility owners or operators shall describe the 
procedures and personnel that will detect any discharge of oil or 
release of a hazardous substance. A thorough discussion of facility 
inspections must be included. In addition, a description of initial 
response actions shall be addressed. This section shall reference 
section 1.3.1 of the response plan for emergency response information.

[[Page 103]]

                   1.6.2 Automated Discharge Detection

    In this section, facility owners or operators must describe any 
automated discharge detection equipment that the facility has in place. 
This section shall include a discussion of overfill alarms, secondary 
containment sensors, etc. A discussion of the plans to verify an 
automated alarm and the actions to be taken once verified must also be 
included.

                         1.7 Plan Implementation

    In this section, facility owners or operators must explain in detail 
how to implement the facility's emergency response plan by describing 
response actions to be carried out under the plan to ensure the safety 
of the facility and to mitigate or prevent discharges described in 
section 1.5 of the response plan. This section shall include the 
identification of response resources for small, medium, and worst case 
discharges; disposal plans; and containment and drainage planning. A 
list of those personnel who would be involved in the cleanup shall be 
identified. Procedures that the facility will use, where appropriate or 
necessary, to update their plan after an oil discharge event and the 
time frame to update the plan must be described.

 1.7.1 Response Resources for Small, Medium, and Worst Case Discharages

    1.7.1.1 Once the discharge scenarios have been identified in section 
1.5 of the response plan, the facility owner or operator shall identify 
and describe implementation of the response actions. The facility owner 
or operator shall demonstrate accessibility to the proper response 
personnel and equipment to effectively respond to all of the identified 
discharge scenarios. The determination and demonstration of adequate 
response capability are presented in Appendix E to this part. In 
addition, steps to expedite the cleanup of oil discharges must be 
discussed. At a minimum, the following items must be addressed:
    (1) Emergency plans for spill response;
    (2) Additional response training;
    (3) Additional contracted help;
    (4) Access to additional response equipment/experts; and
    (5) Ability to implement the plan including response training and 
practice drills.
    1.7.1.2A recommended form detailing immediate actions follows.

                  Oil Spill Response--Immediate Actions
------------------------------------------------------------------------
 
1. Stop the product flow..................  Act quickly to secure pumps,
                                             close valves, etc.
2. Warn personnel.........................  Enforce safety and security
                                             measures.
3. Shut off ignition sources..............  Motors, electrical circuits,
                                             open flames, etc.
4. Initiate containment...................  Around the tank and/or in
                                             the water with oil boom.
5. Notify NRC.............................  1-800-424-8802
6. Notify OSC
7. Notify, as appropriate
------------------------------------------------------------------------
Source: FOSS, Oil Spill Response--Emergency Procedures, Revised December
  3, 1992.

                          1.7.2 Disposal Plans

    1.7.2.1 Facility owners or operators must describe how and where the 
facility intends to recover, reuse, decontaminate, or dispose of 
materials after a discharge has taken place. The appropriate permits 
required to transport or dispose of recovered materials according to 
local, State, and Federal requirements must be addressed. Materials that 
must be accounted for in the disposal plan, as appropriate, include:
    (1) Recovered product;
    (2) Contaminated soil;
    (3) Contaminated equipment and materials, including drums, tank 
parts, valves, and shovels;
    (4) Personnel protective equipment;
    (5) Decontamination solutions;
    (6) Adsorbents; and
    (7) Spent chemicals.
    1.7.2.2 These plans must be prepared in accordance with Federal 
(e.g., the Resource Conservation and Recovery Act [RCRA]), State, and 
local regulations, where applicable. A copy of the disposal plans from 
the facility's SPCC Plan may be inserted with this section, including 
any diagrams in those plans.

------------------------------------------------------------------------
                                     Disposal                RCRA permit/
             Material                facility     Location     manifest
------------------------------------------------------------------------
1.
------------------------------------------------------------------------
2.
------------------------------------------------------------------------
3.
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4.
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                 1.7.3 Containment and Drainage Planning

    A proper plan to contain and control a discharge through drainage 
may limit the threat of harm to human health and the environment. This 
section shall describe how to contain and control a discharge through 
drainage, including:

[[Page 104]]

    (1) The available volume of containment (use the information 
presented in section 1.4.1 of the response plan);
    (2) The route of drainage from oil storage and transfer areas;
    (3) The construction materials used in drainage troughs;
    (4) The type and number of valves and separators used in the 
drainage system;
    (5) Sump pump capacities;
    (6) The containment capacity of weirs and booms that might be used 
and their location (see section 1.3.2 of this appendix); and
    (7) Other cleanup materials.
    In addition, a facility owner or operator must meet the inspection 
and monitoring requirements for drainage contained in 40 CFR part 112, 
subparts A through C. A copy of the containment and drainage plans that 
are required in 40 CFR part 112, subparts A through C may be inserted in 
this section, including any diagrams in those plans.
    Note: The general permit for stormwater drainage may contain 
additional requirements.

      1.8 Self-Inspection, Drills/Exercises, and Response Training

    The owner or operator must develop programs for facility response 
training and for drills/exercises according to the requirements of 40 
CFR 112.21. Logs must be kept for facility drills/exercises, personnel 
response training, and spill prevention meetings. Much of the 
recordkeeping information required by this section is also contained in 
the SPCC Plan required by 40 CFR 112.3. These logs may be included in 
the facility response plan or kept as an annex to the facility response 
plan.

                     1.8.1 Facility Self-Inspection

    Under 40 CFR 112.7(e), you must include the written procedures and 
records of inspections for each facility in the SPCC Plan. You must 
include the inspection records for each container, secondary 
containment, and item of response equipment at the facility. You must 
cross-reference the records of inspections of each container and 
secondary containment required by 40 CFR 112.7(e) in the facility 
response plan. The inspection record of response equipment is a new 
requirement in this plan. Facility self-inspection requires two-steps: 
(1) a checklist of things to inspect; and (2) a method of recording the 
actual inspection and its findings. You must note the date of each 
inspection. You must keep facility response plan records for five years. 
You must keep SPCC records for three years.

                        1.8.1.1. Tank Inspection

    The tank inspection checklist presented below has been included as 
guidance during inspections and monitoring. Similar requirements exist 
in 40 CFR part 112, subparts A through C. Duplicate information from the 
SPCC Plan may be photocopied and inserted in this section. The 
inspection checklist consists of the following items:

                        Tank Inspection Checklist

1. Check tanks for leaks, specifically looking for:
    A. drip marks;
    B. discoloration of tanks;
    C. puddles containing spilled or leaked material;
    D. corrosion;
    E. cracks; and
    F. localized dead vegetation.
2. Check foundation for:
    A. cracks;
    B. discoloration;
    C. puddles containing spilled or leaked material;
    D. settling;
    E. gaps between tank and foundation; and
    F. damage caused by vegetation roots.
3. Check piping for:
    A. droplets of stored material;
    B. discoloration;
    C. corrosion;
    D. bowing of pipe between supports;
    E. evidence of stored material seepage from valves or seals; and
    F. localized dead vegetation.

                                     Tank/Surface Impoundment Inspection Log
----------------------------------------------------------------------------------------------------------------
              Inspector                  Tank or SI              Date                   Comments
----------------------------------------------------------------------------------------------------------------
 
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[[Page 105]]

 
 
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                  1.8.1.2 Response Equipment Inspection

    Using the Emergency Response Equipment List provided in section 
1.3.2 of the response plan, describe each type of response equipment, 
checking for the following:

                      Response Equipment Checklist

    1. Inventory (item and quantity);
    2. Storage location;
    3. Accessibility (time to access and respond);
    4. Operational status/condition;
    5. Actual use/testing (last test date and frequency of testing); and
    6. Shelf life (present age, expected replacement date).

Please note any discrepancies between this list and the available 
response equipment.

                                        Response Equipment Inspection Log
                             [Use section 1.3.2 of the response plan as a checklist]
----------------------------------------------------------------------------------------------------------------
              Inspector                               Date                                Comments
----------------------------------------------------------------------------------------------------------------
 
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[[Page 106]]

 
 
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                1.8.1.3 Secondary Containment Inspection

    Inspect the secondary containment (as described in sections 1.4.1 
and 1.7.2 of the response plan), checking the following:

                     Secondary Containment Checklist

1. Dike or berm system.
    A. Level of precipitation in dike/available capacity;
    B. Operational status of drainage valves;
    C. Dike or berm permeability;
    D. Debris;
    E. Erosion;
    F. Permeability of the earthen floor of diked area; and
    G. Location/status of pipes, inlets, drainage beneath tanks, etc.
2. Secondary containment
    A. Cracks;
    B. Discoloration;
    C. Presence of spilled or leaked material (standing liquid);
    D. Corrosion; and
    E. Valve conditions.
3. Retention and drainage ponds
    A. Erosion;
    B. Available capacity;
    C. Presence of spilled or leaked material;
    D. Debris; and
    E. Stressed vegetation.

The tank inspection checklist presented below has been included as 
guidance during inspections and monitoring. Similar requirements exist 
in 40 CFR part 112, subparts A through C. Similar requirements exist in 
40 CFR 112.7(e). Duplicate information from the SPCC Plan may be 
photocopied and inserted in this section.

                     1.8.2 Facility Drills/Exercises

    (A) CWA section 311(j)(5), as amended by OPA, requires the response 
plan to contain a description of facility drills/exercises. According to 
40 CFR 112.21(c), the facility owner or operator shall develop a program 
of facility response drills/exercises, including evaluation procedures. 
Following the PREP guidelines (see Appendix E to this part, section 13, 
for availability) would satisfy a facility's requirements for drills/
exercises under this part. Alternately, under Sec. 112.21(c), a 
facility owner or operator may develop a program that is not based on 
the PREP guidelines. Such a program is subject to approval by the 
Regional Administrator based on the description of the program provided 
in the response plan.
    (B) The PREP Guidelines specify that the facility conduct internal 
and external drills/exercises. The internal exercises include: qualified 
individual notification drills, spill management team tabletop 
exercises, equipment deployment exercises, and unannounced exercises. 
External exercises include Area Exercises. Credit for an Area or 
Facility-specific Exercise will be given to the facility for an actual 
response to a discharge in the area if the plan was utilized for 
response to the discharge and the objectives of the Exercise were met 
and were properly evaluated, documented, and self-certified.
    (C) Section 112.20(h)(8)(ii) requires the facility owner or operator 
to provide a description of the drill/exercise program to be carried out 
under the response plan. Qualified Individual Notification Drill and 
Spill Management Team Tabletop Drill logs shall be provided in sections 
1.8.2.1 and 1.8.2.2, respectively. These logs may be included in the 
facility response plan or kept as an annex to the facility response 
plan. See section 1.3.3 of this appendix for Equipment Deployment Drill 
Logs.

[[Page 107]]

          1.8.2.1 Qualified Individual Notification Drill Logs

               Qualified Individual Notification Drill Log

Date:___________________________________________________________________
Company:________________________________________________________________
Qualified Individual(s):________________________________________________
Emergency Scenario:_____________________________________________________
________________________________________________________________________
________________________________________________________________________
Evaluation:_____________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Changes to be Implemented:______________________________________________
________________________________________________________________________
________________________________________________________________________
Time Table for Implementation:__________________________________________
________________________________________________________________________

          1.8.2.2 Spill Management Team Tabletop Exercise Logs

               Spill Management Team Tabletop Exercise Log

Date:___________________________________________________________________
Company:________________________________________________________________
Qualified Individual(s):________________________________________________
Emergency Scenario:_____________________________________________________
________________________________________________________________________
________________________________________________________________________
Evaluation:_____________________________________________________________
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
Changes to be Implemented:______________________________________________
________________________________________________________________________
________________________________________________________________________
Time Table for Implementation:__________________________________________

                         1.8.3 Response Training

    Section 112.21(a) requires facility owners or operators to develop 
programs for facility response training. Facility owners or operators 
are required by Sec. 112.20(h)(8)(iii) to provide a description of the 
response training program to be carried out under the response plan. A 
facility's training program can be based on the USCG's Training Elements 
for Oil Spill Response, to the extent applicable to facility operations, 
or another response training program acceptable to the RA. The training 
elements are available from the USCG Office of Response (G-MOR) at (202) 
267-0518 or fax (202) 267-4085. Personnel response training logs and 
discharge prevention meeting logs shall be included in sections 1.8.3.1 
and 1.8.3.2 of the response plan respectively. These logs may be 
included in the facility response plan or kept as an annex to the 
facility response plan.

                1.8.3.1 Personnel Response Training Logs

                     Personnel Response Training Log
------------------------------------------------------------------------
                               Response training/   Prevention training/
            Name               date and number of    date and number of
                                      hours                 hours
------------------------------------------------------------------------
 
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               1.8.3.2 Discharge Prevention Meetings Logs

                    Discharge Prevention Meeting Log

Date:___________________________________________________________________

Attendees:______________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________

________________________________________________________________________


[[Page 108]]

________________________________________________________________________

------------------------------------------------------------------------
  Subject/issue identified       Required action     Implementation date
------------------------------------------------------------------------
 
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------------------------------------------------------------------------

                              1.9 Diagrams

    The facility-specific response plan shall include the following 
diagrams. Additional diagrams that would aid in the development of 
response plan sections may also be included.

(1) The Site Plan Diagram shall, as appropriate, include and identify:
    (A) the entire facility to scale;
    (B) above and below ground bulk oil storage tanks;
    (C) the contents and capacities of bulk oil storage tanks;
    (D) the contents and capacity of drum oil storage areas;
    (E) the contents and capacities of surface impoundments;
    (F) process buildings;
    (G) transfer areas;
    (H) secondary containment systems (location and capacity);
    (I) structures where hazardous materials are stored or handled, 
including materials stored and capacity of storage;
    (J) location of communication and emergency response equipment;
    (K) location of electrical equipment which contains oil; and
    (L) for complexes only, the interface(s) (i.e., valve or component) 
between the portion of the facility regulated by EPA and the portion(s) 
regulated by other Agencies. In most cases, this interface is defined as 
the last valve inside secondary containment before piping leaves the 
secondary containment area to connect to the transportation-related 
portion of the facility (i.e., the structure used or intended to be used 
to transfer oil to or from a vessel or pipeline). In the absence of 
secondary containment, this interface is the valve manifold adjacent to 
the tank nearest the transfer structure as described above. The 
interface may be defined differently at a specific facility if agreed to 
by the RA and the appropriate Federal official.
(2) The Site Drainage Plan Diagram shall, as appropriate, include:
    (A) major sanitary and storm sewers, manholes, and drains;
    (B) weirs and shut-off valves;
    (C) surface water receiving streams;
    (D) fire fighting water sources;
    (E) other utilities;
    (F) response personnel ingress and egress;
    (G) response equipment transportation routes; and
    (H) direction of discharge flow from discharge points.
(3) The Site Evacuation Plan Diagram shall, as appropriate, include:
    (A) site plan diagram with evacuation route(s); and
    (B) location of evacuation regrouping areas.

                              1.10 Security

    According to 40 CFR 112.7(g) facilities are required to maintain a 
certain level of security, as appropriate. In this section, a 
description of the facility security shall be provided and include, as 
appropriate:

(1) emergency cut-off locations (automatic or manual valves);
(2) enclosures (e.g., fencing, etc.);
(3) guards and their duties, day and night;
(4) lighting;
(5) valve and pump locks; and
(6) pipeline connection caps.

The SPCC Plan contains similar information. Duplicate information may be 
photocopied and inserted in this section.

                      2.0 Response Plan Cover Sheet

    A three-page form has been developed to be completed and submitted 
to the RA by owners or operators who are required to prepare and submit 
a facility-specific response plan. The cover sheet (Attachment F-1) must 
accompany the response plan to provide the Agency with basic information 
concerning the facility. This section will describe the Response Plan 
Cover Sheet and provide instructions for its completion.

                         2.1 General Information

    Owner/Operator of Facility: Enter the name of the owner of the 
facility (if the owner is the operator). Enter the operator of the 
facility if otherwise. If the owner/operator of

[[Page 109]]

the facility is a corporation, enter the name of the facility's 
principal corporate executive. Enter as much of the name as will fit in 
each section.
    (1) Facility Name: Enter the proper name of the facility.
    (2) Facility Address: Enter the street address, city, State, and zip 
code.
    (3) Facility Phone Number: Enter the phone number of the facility.
    (4) Latitude and Longitude: Enter the facility latitude and 
longitude in degrees, minutes, and seconds.
    (5) Dun and Bradstreet Number: Enter the facility's Dun and 
Bradstreet number if available (this information may be obtained from 
public library resources).
    (6) North American Industrial Classification System (NAICS) Code: 
Enter the facility's NAICS code as determined by the Office of 
Management and Budget (this information may be obtained from public 
library resources.)
    (7) Largest Oil Storage Tank Capacity: Enter the capacity in GALLONS 
of the largest aboveground oil storage tank at the facility.
    (8) Maximum Oil Storage Capacity: Enter the total maximum capacity 
in GALLONS of all aboveground oil storage tanks at the facility.
    (9) Number of Oil Storage Tanks: Enter the number of all aboveground 
oil storage tanks at the facility.
    (10) Worst Case Discharge Amount: Using information from the 
worksheets in Appendix D, enter the amount of the worst case discharge 
in GALLONS.
    (11) Facility Distance to Navigable Waters: Mark the appropriate 
line for the nearest distance between an opportunity for discharge 
(i.e., oil storage tank, piping, or flowline) and a navigable water.

             2.2 Applicability of Substantial Harm Criteria

    Using the flowchart provided in Attachment C-I to Appendix C to this 
part, mark the appropriate answer to each question. Explanations of 
referenced terms can be found in Appendix C to this part. If a 
comparable formula to the ones described in Attachment C-III to Appendix 
C to this part is used to calculate the planning distance, documentation 
of the reliability and analytical soundness of the formula must be 
attached to the response plan cover sheet.

                            2.3 Certification

    Complete this block after all other questions have been answered.

                              3.0 Acronyms

ACP: Area Contingency Plan
ASTM: American Society of Testing Materials
bbls: Barrels
bpd: Barrels per Day
bph: Barrels per Hour
CHRIS: Chemical Hazards Response Information System
CWA: Clean Water Act
DOI: Department of Interior
DOC: Department of Commerce
DOT: Department of Transportation
EPA: Environmental Protection Agency
FEMA: Federal Emergency Management Agency
FR: Federal Register
gal: Gallons
gpm: Gallons per Minute
HAZMAT: Hazardous Materials
LEPC: Local Emergency Planning Committee
MMS: Minerals Management Service (part of DOI)
NAICS: North American Industrial Classification System
NCP: National Oil and Hazardous Substances Pollution Contingency Plan
NOAA: National Oceanic and Atmospheric Administration (part of DOC)
NRC: National Response Center
NRT: National Response Team
OPA: Oil Pollution Act of 1990
OSC: On-Scene Coordinator
PREP: National Preparedness for Response Exercise Program
RA: Regional Administrator
RCRA: Resource Conservation and Recovery Act
RRC: Regional Response Centers
RRT: Regional Response Team
RSPA: Research and Special Programs Administration
SARA: Superfund Amendments and Reauthorization Act
SERC: State Emergency Response Commission
SDWA: Safe Drinking Water Act of 1986
SI: Surface Impoundment
SPCC: Spill Prevention, Control, and Countermeasures
USCG: United States Coast Guard

                             4.0 References

    CONCAWE. 1982. Methodologies for Hazard Analysis and Risk Assessment 
in the Petroleum Refining and Storage Industry. Prepared by CONCAWE's 
Risk Assessment Ad-hoc Group.
    U.S. Department of Housing and Urban Development. 1987. Siting of 
HUD-Assisted Projects Near Hazardous Facilities: Acceptable Separation 
Distances from Explosive and Flammable Hazards. Prepared by the Office 
of Environment and Energy, Environmental Planning Division, Department 
of Housing and Urban Development. Washington, DC.
    U.S. DOT, FEMA and U.S. EPA. Handbook of Chemical Hazard Analysis 
Procedures.
    U.S. DOT, FEMA and U.S. EPA. Technical Guidance for Hazards 
Analysis: Emergency

[[Page 110]]

Planning for Extremely Hazardous Substances.
    The National Response Team. 1987. Hazardous Materials Emergency 
Planning Guide. Washington, DC.
    The National Response Team. 1990. Oil Spill Contingency Planning, 
National Status: A Report to the President. Washington, DC. U.S. 
Government Printing Office.
    Offshore Inspection and Enforcement Division. 1988. Minerals 
Management Service, Offshore Inspection Program: National Potential 
Incident of Noncompliance (PINC) List. Reston, VA.

                        Attachments to Appendix F

                Attachment F-1--Response Plan Cover Sheet

    This cover sheet will provide EPA with basic information concerning 
the facility. It must accompany a submitted facility response plan. 
Explanations and detailed instructions can be found in Appendix F. 
Please type or write legibly in blue or black ink. Public reporting 
burden for the collection of this information is estimated to vary from 
1 hour to 270 hours per response in the first year, with an average of 5 
hours per response. This estimate includes time for reviewing 
instructions, searching existing data sources, gathering the data 
needed, and completing and reviewing the collection of information. Send 
comments regarding the burden estimate of this information, including 
suggestions for reducing this burden to: Chief, Information Policy 
Branch, Mail Code: PM-2822, U.S. Environmental Protection Agency, Ariel 
Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; and 
to the Office of Information and Regulatory Affairs, Office of 
Management and Budget, Washington D.C. 20503.

                           General Information

Owner/Operator of Facility:_____________________________________________

Facility Name:__________________________________________________________

Facility Address (street address or route):_____________________________

City, State, and U.S. Zip Code:_________________________________________

Facility Phone No.:_____________________________________________________

Latitude (Degrees: North):

________________________________________________________________________
degrees, minutes, seconds

Dun & Bradstreet Number: \1\____________________________________________
---------------------------------------------------------------------------

    \1\ These numbers may be obtained from public library resources.

---------------------------------------------------------------------------
Largest Aboveground Oil Storage Tank Capacity (Gallons):________________

Number of Aboveground Oil Storage Tanks:

________________________________________________________________________
Longitude (Degrees: West):

________________________________________________________________________
degrees, minutes, seconds

North American Industrial Classification System (NAICS) Code: \1\_______

Maximum Oil Storage Capacity (Gallons):_________________________________

Worst Case Oil Discharge Amount (Gallons):______________________________

Facility Distance to Navigable Water. Mark the appropriate line.________

0-\1/4\ mile ---- \1/4\-\1/2\ mile ---- \1/2\-1 mile ---- 1 
          mile ----

               Applicability of Substantial Harm Criteria

    Does the facility transfer oil over-water \2\ to or from vessels and 
does the facility have a total oil storage capacity greater than or 
equal to 42,000 gallons?
---------------------------------------------------------------------------

    \2\ Explanations of the above-referenced terms can be found in 
Appendix C to this part. If a comparable formula to the ones contained 
in Attachment C-III is used to establish the appropriate distance to 
fish and wildlife and sensitive environments or public drinking water 
intakes, documentation of the reliability and analytical soundness of 
the formula must be attached to this form.
---------------------------------------------------------------------------

Yes_____________________________________________________________________

No______________________________________________________________________

    Does the facility have a total oil storage capacity greater than or 
equal to 1 million gallons and, within any storage area, does the 
facility lack secondary containment \2\ that is sufficiently large to 
contain the capacity of the largest aboveground oil storage tank plus 
sufficient freeboard to allow for precipitation?

Yes_____________________________________________________________________

No______________________________________________________________________

    Does the facility have a total oil storage capacity greater than or 
equal to 1 million gallons and is the facility located at a distance \2\ 
(as calculated using the appropriate formula in Appendix C or a 
comparable formula) such that a discharge from the facility could cause 
injury to fish and wildlife and sensitive environments? \3\
---------------------------------------------------------------------------

    \3\ For further description of fish and wildlife and sensitive 
environments, see Appendices I, II, and III to DOC/NOAA's ``Guidance for 
Facility and Vessel Response Plans: Fish and Wildlife and Sensitive 
Environments'' (see Appendix E to this part, section 13, for 
availability) and the applicable ACP.

---------------------------------------------------------------------------
Yes_____________________________________________________________________

No______________________________________________________________________

    Does the facility have a total oil storage capacity greater than or 
equal to 1 million gallons and is the facility located at a distance \2\ 
(as calculated using the appropriate formula in Appendix C or a 
comparable formula) such that a discharge from the facility

[[Page 111]]

would shut down a public drinking water intake? \2\

Yes_____________________________________________________________________

No______________________________________________________________________

    Does the facility have a total oil storage capacity greater than or 
equal to 1 million gallons and has the facility experienced a reportable 
oil spill \2\ in an amount greater than or equal to 10,000 gallons 
within the last 5 years?

Yes_____________________________________________________________________

No______________________________________________________________________

                              Certification

    I certify under penalty of law that I have personally examined and 
am familiar with the information submitted in this document, and that 
based on my inquiry of those individuals responsible for obtaining 
information, I believe that the submitted information is true, accurate, 
and complete.

Signature:______________________________________________________________

Name (Please type or print):____________________________________________

Title:__________________________________________________________________

Date:___________________________________________________________________

[59 FR 34122, July 1, 1994; 59 FR 49006, Sept. 26, 1994, as amended at 
65 FR 40816, June 30, 2000; 65 FR 43840, July 14, 2000; 66 FR 34561, 
June 29, 2001; 67 FR 47152, July 17, 2002]



    Sec. Appendix G to Part 112--Tier I Qualified Facility SPCC Plan

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[74 FR 58811, Nov. 13, 2009]



PART 113_LIABILITY LIMITS FOR SMALL ONSHORE STORAGE FACILITIES--Table of 

Contents



                    Subpart A_Oil Storage Facilities

Sec.
113.1 Purpose.
113.2 Applicability.
113.3 Definitions.
113.4 Size classes and associated liability limits for fixed onshore oil 
          storage facilities, 1,000 barrels or less capacity.
113.5 Exclusions.
113.6 Effect on other laws.

    Authority: Sec. 311(f)(2), 86 Stat. 867 (33 U.S.C. 1251 (1972)).

    Source: 38 FR 25440, Sept. 13, 1973, unless otherwise noted.



                    Subpart A_Oil Storage Facilities



Sec. 113.1  Purpose.

    This subpart establishes size classifications and associated 
liability limits for small onshore oil storage facilities with fixed 
capacity of 1,000 barrels or less.



Sec. 113.2  Applicability.

    This subpart applies to all onshore oil storage facilities with 
fixed capacity of 1,000 barrels or less. When a discharge to the waters 
of the United States occurs from such facilities and when removal of 
said discharge is performed by the United States Government pursuant to 
the provisions of subsection 311(c)(1) of the Act, the liability

[[Page 134]]

of the owner or operator and the facility will be limited to the amounts 
specified in Sec. 113.4.



Sec. 113.3  Definitions.

    As used in this subpart, the following terms shall have the meanings 
indicated below:
    (a) Aboveground storage facility means a tank or other container, 
the bottom of which is on a plane not more than 6 inches below the 
surrounding surface.
    (b) Act means the Federal Water Pollution Control Act, as amended, 
33 U.S.C. 1151, et seq.
    (c) Barrel means 42 United States gallons at 60 degrees Fahrenheit.
    (d) Belowground storage facility means a tank or other container 
located other than as defined as ``Aboveground''.
    (e) Discharge includes, but is not limited to any spilling, leaking, 
pumping, pouring, emitting, emptying or dumping.
    (f) Onshore Oil Storage Facility means any facility (excluding motor 
vehicles and rolling stock) of any kind located in, on, or under, any 
land within the United States, other than submerged land.
    (g) On-Scene Coordinator is the single Federal representative 
designated pursuant to the National Oil and Hazardous Substances 
Pollution Contingency Plan and identified in approved Regional Oil and 
Hazardous Substances Pollution Contingency Plans.
    (h) Oil means oil of any kind or in any form, including but not 
limited to, petroleum, fuel oil, sludge, oil refuse, and oil mixed with 
wastes other than dredged spoil.
    (i) Remove or removal means the removal of the oil from the water 
and shorelines or the taking of such other actions as the Federal On-
Scene Coordinator may determine to be necessary to minimize or mitigate 
damage to the public health or welfare, including but not limited to, 
fish, shellfish, wildlife, and public and private property, shorelines, 
and beaches.

Additionally, the terms not otherwise defined herein shall have the 
meanings assigned them by section 311(a) of the Act.



Sec. 113.4  Size classes and associated liability limits for fixed onshore oil 

storage facilities, 1,000 barrels or less capacity.

    Unless the United States can show that oil was discharged as a 
result of willful negligence or willful misconduct within the privity 
and knowledge of the owner or operator, the following limits of 
liability are established for fixed onshore facilities in the classes 
specified:
    (a) Aboveground storage.

------------------------------------------------------------------------
                                                                 Limit
             Size class                  Capacity (barrels)    (dollars)
------------------------------------------------------------------------
I...................................  Up to 10...............      4,000
II..................................  11 to 170..............     60,000
III.................................  171 to 500.............    150,000
IV..................................  501 to 1,000...........    200,000
------------------------------------------------------------------------

    (b) Belowground storage.

------------------------------------------------------------------------
                                                                 Limit
             Size class                  Capacity (barrels)    (dollars)
------------------------------------------------------------------------
I...................................  Up to 10...............      5,200
II..................................  11 to 170..............     78,000
III.................................  171 to 500.............    195,000
IV..................................  501 to 1,000...........    260,000
------------------------------------------------------------------------



Sec. 113.5  Exclusions.

    This subpart does not apply to:
    (a) Those facilities whose average daily oil throughout is more than 
their fixed oil storage capacity.
    (b) Vehicles and rolling stock.



Sec. 113.6  Effect on other laws.

    Nothing herein shall be construed to limit the liability of any 
facility under State or local law or under any Federal law other than 
section 311 of the Act, nor shall the liability of any facility for any 
charges or damages under State or local law reduce its liability to the 
Federal Government under section 311 of the Act, as limited by this 
subpart.



PART 116_DESIGNATION OF HAZARDOUS SUBSTANCES--Table of Contents



Sec.
116.1 Applicability.
116.2 Abbreviations.
116.3 Definitions.
116.4 Designation of hazardous substances.

    Authority: Secs. 311(b)(2)(A) and 501(a), Federal Water Pollution 
Control Act (33 U.S.C. 1251 et seq.).

[[Page 135]]



Sec. 116.1  Applicability.

    This regulation designates hazardous substances under section 
311(b)(2)(A) of the Federal Water Pollution Control Act (the Act). The 
regulation applies to discharges of substances designated in Table 
116.4.

[43 FR 10474, Mar. 13, 1978]



Sec. 116.2  Abbreviations.

ppm=parts per million
mg=milligram(s)
kg=kilogram(s)
mg/l=milligrams(s) per liter= (approx.) ppm
mg/kg=milligram(s) per kilogram= (approx.) ppm

[43 FR 10474, Mar. 13, 1978]



Sec. 116.3  Definitions.

    As used in this part, all terms shall have the meaning defined in 
the Act and as given below:
    The Act means the Federal Water Pollution Control Act, as amended by 
the Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92-
500), and as further amended by the Clean Water Act of 1977 (Pub. L. 95-
217), 33 U.S.C. 1251 et seq.; and as further amended by the Clean Water 
Act Amendments of 1978 (Pub. L. 95-676);
    Animals means appropriately sensitive animals which carry out 
respiration by means of a lung structure permitting gaseous exchange 
between air and the circulatory system;
    Aquatic animals means appropriately sensitive wholly aquatic animals 
which carry out respiration by means of a gill structure permitting 
gaseous exchange between the water and the circulatory system;
    Aquatic flora means plant life associated with the aquatic eco-
system including, but not limited to, algae and higher plants;
    Contiguous zone means the entire zone established or to be 
established by the United States under article 24 of the Convention of 
the Territorial Sea and the Contiguous Zone;
    Discharge includes, but is not limited to, any spilling, leaking, 
pumping, pouring, emitting, emptying or dumping, but excludes (A) 
discharges in compliance with a permit under section 402 of this Act, 
(B) discharges resulting from circumstances identified and reviewed and 
made a part of the public record with respect to a permit issued or 
modified under section 402 of this Act, and subject to a condition in 
such permit, and (C) continuous or anticipated intermittent discharges 
from a point source, identified in a permit or permit application under 
section 402 of this Act, which are caused by events occurring within the 
scope of relevant operating or treatment systems;
    LC50 means that concentration of material which is lethal to one-
half of the test population of aquatic animals upon continuous exposure 
for 96 hours or less.
    Mixture means any combination of two or more elements and/or 
compounds in solid, liquid, or gaseous form except where such substances 
have undergone a chemical reaction so as to become inseparable by 
physical means.
    Navigable waters is defined in section 502(7) of the Act to mean 
``waters of the United States, including the territorial seas,'' and 
includes, but is not limited to:
    (1) All waters which are presently used, or were used in the past, 
or may be susceptible to use as a means to transport interstate or 
foreign commerce, including all waters which are subject to the ebb and 
flow of the tide, and including adjacent wetlands; the term wetlands as 
used in this regulation shall include those areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, a 
prevelance of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs and similar 
areas; the term adjacent means bordering, contiguous or neighboring;
    (2) Tributaries of navigable waters of the United States, including 
adjacent wetlands;
    (3) Interstate waters, including wetlands; and
    (4) All other waters of the United States such as intrastate lakes, 
rivers, streams, mudflats, sandflats and wetlands, the use, degradation 
or destruction of which affect interstate commerce including, but not 
limited to:
    (i) Intrastate lakes, rivers, streams, and wetlands which are 
utilized by

[[Page 136]]

interstate travelers for recreational or other purposes; and
    (ii) Intrastate lakes, rivers, streams, and wetlands from which fish 
or shellfish are or could be taken and sold in interstate commerce; and
    (iii) Intrastate lakes, rivers, streams, and wetlands which are 
utilized for industrial purposes by industries in interstate commerce.


Navigable waters 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.
    Offshore facility means any facility of any kind located in, on, or 
under, any of the navigable waters of the United States, and any 
facility of any kind which is subject to the jurisdiction of the United 
States and is located in, on, or under any other waters, other than a 
vessel or a public vessel;
    Onshore facility means any facility (including, but not limited to, 
motor vehicles and rolling stock) of any kind located in, on, or under, 
any land within the United States other than submerged land;
    Otherwise subject to the jurisdiction of the United States means 
subject to the jurisdiction of the United States by virtue of United 
States citizenship, United States vessel documentation or numbering, or 
as provided for by international agreement to which the United States is 
a party.
    A discharge in connection with activities under the Outer 
Continental Shelf Lands Act or the Deepwater Port Act of 1974, or which 
may affect natural resources belonging to, appertaining to, or under the 
exclusive management authority of the United States (including resources 
under the Fishery Conservation and Management Act of 1976), means: (1) A 
discharge into any waters beyond the contiguous zone from any vessel or 
onshore or offshore facility, which vessel or facility is subject to or 
is engaged in activities under the Outer Continental Shelf Lands Act or 
the Deepwater Port Act of 1974, and (2) any discharge into any waters 
beyond the contiguous zone which contain, cover, or support any natural 
resource belonging to, appertaining to, or under the exclusive 
management authority of the United States (including resources under the 
Fishery Conservation and Management Act of 1976).
    Public vessel means a vessel owned or bareboat-chartered and 
operated by the United States, or a State or political subdivision 
thereof, or by a foreign nation, except when such vessel is engaged in 
commerce.
    Territorial seas means the belt of the seas measured from the line 
of ordinary low water along that portion of the coast which is in direct 
contact with the open sea and the line marking the seaward limit of 
inland waters, and extending seaward a distance of 3 miles.
    Vessel means every description of watercraft or other artificial 
contrivance used, or capable of being used, as a means of transportation 
on water other than a public vessel;

[43 FR 10474, Mar. 13, 1978; 43 FR 27533, June 26, 1978, as amended at 
44 FR 10266, Feb. 16, 1979; 58 FR 45039, Aug. 25, 1993]



Sec. 116.4  Designation of hazardous substances.

    The elements and compounds appearing in Tables 116.4 A and B are 
designated as hazardous substances in accordance with section 
311(b)(2)(A) of the Act. This designation includes any isomers and 
hydrates, as well as any solutions and mixtures containing these 
substances. Synonyms and Chemical Abstract System (CAS) numbers have 
been added for convenience of the user only. In case of any disparity 
the common names shall be considered the designated substance.

                                   Table 116.4A--List of Hazardous Substances
----------------------------------------------------------------------------------------------------------------
            Common name                CAS No.             Synonyms                   Isomers           CAS No.
----------------------------------------------------------------------------------------------------------------
Acetaldehyde.......................       75070  Ethanal, ethyl aldehyde,
                                                  acetic aldehyde.
Acetic acid........................       64197  Glacial acetic acid,
                                                  vinegar acid.
Acetic anhydride...................      108247  Acetic oxide, acetyl oxide.
Acetone cyanohydrin................       75865  2-methyllactonitrile, alpha-
                                                  hydroxyisobutyronitrile.

[[Page 137]]

 
Acetyl bromide.....................      506967
Acetyl chloride....................       79367
Acrolein...........................      107028  2-propenal, acrylic
                                                  aldehyde, acrylaldehyde,
                                                  acraldehyde.
Acrylonitrile......................      107131  Cyanoethylene, Fumigrain,
                                                  Ventox, propeneitrile,
                                                  vinyl cyanide.
Adipic acid........................      124049  Hexanedioic acid...........
Aldrin.............................      309002  Octalene, HHDN.............
Allyl alcohol......................      107186  2-propen-1-ol, 1-propenol-
                                                  3, vinyl carbinol.
Allyl chloride.....................      107051  3-chloropropene, 3-
                                                  chloropropylene,
                                                  Chlorallylene.
Aluminum sulfate...................    10043013  Alum.......................
Ammonia............................     7664417
Ammonium acetate...................      631618  Acetic acid ammonium, salt.
Ammonium benzoate..................     1863634
Ammonium bicarbonate...............     1066337  Acid ammonium carbonate,
                                                  ammonium hydrogen
                                                  carbonate.
Ammonium bichromate................     7789095
Ammonium bifluoride................     1341497  Acid ammonium fluoride,
                                                  ammonium hydrogen fluoride.
Ammonium bisulfite.................    10192300
Ammonium carbamate.................     1111780  Ammonium aminoformate......
Ammonium carbonate.................      506876
Ammonium chloride..................    12125029  Ammonium muriate, sal
                                                  ammoniac, salmiac, Amchlor.
Ammonium chromate..................     7788989
Ammonium citrate dibasic...........     3012655  Diammonium citrate, citric
                                                  acid diammonium salt.
Ammonium fluoborate................    13826830  Ammonium fluoroborate,
                                                  ammonium borofluoride.
Ammonium fluoride..................    12125018  Neutral ammonium fluoride..
Ammonium hydroxide.................     1336216
Ammonium oxalate...................     6009707
                                        5972736
                                       14258492
Ammonium silicofluoride............    16919190  Ammonium fluosilicate......
Ammonium sulfamate.................     7773060  Ammate, AMS, ammonium
                                                  amidosulfate.
Ammonium sulfide...................    12135761
Ammonium sulfite...................    10196040
                                       10192300
Ammonium tartrate..................     3164292  Tartaric acid ammonium salt
                                       14307438
Ammonium thiocyanate...............     1762954  Ammonium rhodanide,
                                                  ammonium sulfocyanate,
                                                  ammonium sulfocyanide.
Amly acetate.......................      628637  Amylacetic ester...........  iso-..................      123922
                                                 Pear oil...................  sec-..................      626380
                                                 Banana oil.................  tert-.................      625161
Aniline............................       62533  Aniline oil, phenylamine,
                                                  aminobenzene, aminophen,
                                                  kyanol.
Antimony pentachloride.............     7647189
Antimony potassium tartrate........    28300745  Tartar emetic, tartrated
                                                  antimony, tartarized
                                                  antimony, potassium
                                                  antimonyltartrate.
Antimony tribromide................     7789619
Antimony trichloride...............    10025919  Butter of antimony.........
Antimony trifluoride...............     7783564  Antimony fluoride..........
Antimony trioxide..................     1309644  Diantimony trioxide,
                                                  flowers of antimony.
Arsenic disulfide..................     1303328  Red arsenic sulfide........
Arsenic pentoxide..................     1303282  Arsenic acid anhydride,
                                                  arsenic oxide.
Arsenic trichloride................     7784341  Arsenic chloride, arsenious
                                                  chloride, arsenous
                                                  chloride, butter of
                                                  arsenic.
Arsenic trioxide...................     1327533  Arsenious acid, arsenious
                                                  oxide, white arsenic.
Arsenic trisulfide.................     1303339  Arsenious sulfide, yellow
                                                  arsenic sulfide.
Barium cyanide.....................      542621
Benzene............................       71432  Cyclohexatriene, benzol....
Benzoic acid.......................       65850  Benzenecarboxylic acid,
                                                  phenylformic acid,
                                                  dracylic acid.
Benzonitrile.......................      100470  Phenyl cyanide,
                                                  cyanobenzene.
Benzoyl chloride...................       98884  Benzenecarbonyl chloride...
Benzyl chloride....................      100447
Beryllium chloride.................     7787475
Beryllium fluoride.................     7787497
Beryllium nitrate..................     7787555

[[Page 138]]

 
                                       13597994
Butyl acetate......................      123864  Acetic acid butyl ester....  iso-..................      110190
                                                                              sec-..................      105464
                                                                              tert-.................      540885
Butylamine.........................      109739  1-aminobutane..............  iso-..................       78819
                                                                              sec-..................      513495
                                                                              sec-..................    13952846
                                                                              tert-.................       75649
n/butyl phthalate..................       84742  1.2-benzenedicarboxylic
                                                  acid, dibutyl ester,
                                                  dibutyl phthalate.
Butyric acid.......................      107926  Butanoic acid, ethylacetic   iso-..................       79312
                                                  acid.
Cadmium acetate....................      543908
Cadmium bromide....................     7789426
Cadmium chloride...................    10108642
Calcium arsenate...................     7778441  Tricalcium orthoarsenate...
Calcium arsenite...................    52740166
Calcium carbide....................       75207  Carbide, acetylenogen......
Calcium chromate...................    13765190  Calcium chrome yellow,
                                                  geblin, yellow ultramarine.
Calcium cyanide....................      592018
Calcium dodecylbenzenesulfonate....    26264062
Calcium hypochlorite...............     7778543
Captan.............................      133062  Orthocide-406, SR-406,
                                                  Vancide-89.
Carbaryl...........................       63252  Sevin......................
Carbofuran.........................     1563662  Furadan....................
Carbon disulfide...................       75150  Carbon bisulfide,
                                                  dithiocarbonic anhydride.
Carbon tetrachloride...............       56235  Tetrachloromethane
                                                  Perchloromethane.
Chlordane..........................       57749  Toxichlor, chlordan........
Chlorine...........................       75003
Chlorobenzene......................      108907  Monochlorobenzene, benzene
                                                  chloride.
Chloroform.........................       67663  Trichloromethane...........
Chlorpyrifos.......................     2921882  Dursban....................
Chlorosulfonic acid................     7790945  Sulfuric chlorohydrin......
Chromic acetate....................     1066304
Chromic acid.......................    11115745  Chromic anhydride, chromium
                                                  trioxide.
Chromic sulfate....................    10101538
Chromous chloride..................    10049055
Cobaltous bromide..................     7789437  Cobalt bromide.............
Coabaltous formate.................      544183  Cobalt formate.............
Cobaltous sulfamate................    14017415  Cobalt sulfamate...........
Coumaphos..........................       56724  Co-Ral.....................
Cresol.............................     1319773  Cresylic acid..............  m-....................      108394
                                                 Hydroxytoluene.............  o-....................       95487
                                                                              p-....................      106445
Crotonaldehyde.....................     4170303  2-butenal propylene
                                                  aldelhyde.
Cupric acetate.....................      142712  Copper acetate, crystalized
                                                  verdigris.
Cupric acetoarsenite...............    12002038  Copper acetoarsenite,
                                                  copper acetate arsenite,
                                                  Paris green.
Cupric chloride....................     7447394  Copper chloride............
Cupric nitrate.....................     3251238  Copper nitrate.............
Cupric oxalate.....................     5893663  Copper oxalate.............
Cupric sulfate.....................     7758987  Copper sulfate.............
Cupric sulfate, ammoniated.........    10380297  Ammoniated copper sulfate..
Cupric tartrate....................      815827  Copper tartrate............
Cyanogen chloride..................      506774
Cyclohexane........................      110827  Hexahydrobenzene,
                                                  hexamethylene,
                                                  hexanaphthene.
2,4-D acid.........................       94757  2,4-dichlorophenoxyacetic
                                                  acid.
2,4-D ester........................       94111  2,4-dichlorophenoxyacetic
                                                  acid ester.
                                          94791
                                          94804
                                        1320189
                                        1928387
                                        1928616
                                        1929733
                                        2971382
                                       25168267
                                       53467111
DDT................................       50293  p,p'-DDT...................
Diazinon...........................      333415  Dipofene, Diazitol,
                                                  Basudin, Spectracide.
Dicamba............................     1918009  2-methoxy-3,6-
                                                  dichlorobenzoic acid.
Dichlobenil........................     1194656  2,6-dichlorobenzonitrile,
                                                  2,6-DBN.

[[Page 139]]

 
Dichlone...........................      117806  Phygon,
                                                  dichloronaphthoquinone.
Dichlorobenzene....................    25321226  Di-chloricide..............  Ortho.................       95501
                                                 Paramoth (Para)............  Para..................      106467
Dichloropropane....................    26638197  Propylene dichloride.......  1,1...................       78999
                                                                              1,2...................       78875
                                                                              1,3...................      142289
Dichloropropene....................    26952238  ...........................  1,3...................      542756
                                                                              2,3...................       78886
Dichloropropene-dichloropropane         8003198  D-D mixture Vidden D.......
 (mixture).
2,2-Dichloropropionic acid.........       75990  Dalapon....................
Dichlorvos.........................       62737  2,2-dichlorovinyl dimethyl
                                                  phosphate, Vapona.
Dicofol............................      115322  Di(p-chlorophenyl)-
                                                  trichloromethylcarbinol,
                                                  DTMC, dicofol.
Dieldrin...........................       60571  Alvit......................
Diethylamine.......................      109897
Dimethylamine......................      124403
Dinitrobenzene (mixed).............    25154545  Dinitrobenzol..............  m-....................       99650
                                                                              o-....................      528290
                                                                              p-....................      100254
Dinitrophenol......................       51285  Aldifen....................  (2,5-)................      329715
                                                                              (2,4-)................
                                                                              (2,6-)................      573568
Dinitrotoluene.....................    25321146  DNT........................  2,4...................      121142
                                                                              2,6...................      606202
                                                                              3,4...................      610399
Diquat.............................       85007  Aquacide...................
                                        2764729  Dextrone, Reglone, Diquat
                                                  dibromide.
Disulfoton.........................      298044  Di-syston..................
Diuron.............................      330541  DCMU, DMU..................
Dodecylbenzenesulfonic acid........    27176870
Endosulfan.........................      115297  Thiodan....................
Endrin.............................       72208  Mendrin, Compound 269......
Epichlorohydrin....................      106898  -chloropropylene oxide.....
Ethion.............................      563122  Nialate, ethyl methylene,
                                                  phosphorodithioate.
Ethylbenzene.......................      100414  Phenylethane...............
Ethylenediamine....................      107153  1,2-diaminoethane..........
Ethylenediamine-tetraacetic acid          60004  Edetic acid, Havidote,
 (EDTA).                                          (ethylenedinitrilo)-
                                                  tetraacetic acid.
Ethylene dibromide.................      106934  1,2-dibromoethane acetylene
                                                  dibromide sym-
                                                  dibromoethylene.
Ethylene dichloride................      107062  1,2-dichloroethane sym-
                                                  bichloroethane.
Ferric ammonium citrate............     1185575  Ammonium ferric citrate....
Ferric ammonium oxalate............     2944674  Ammonium ferric oxalate....
                                       55488874
Ferric chloride....................     7705080  Flores martis, iron
                                                  trichloride.
Ferric fluoride....................     7783508
Ferric nitrate.....................    10421484  Iron nitrate...............
Ferric sulfate.....................    10028225  Ferric persulfate, ferric
                                                  sesquisulfate, ferric
                                                  tersulfate.
Ferrous ammonium sulfate...........    10045893  Mohr's salt, iron ammonium
                                                  sulfate.
Ferrous chloride...................     7758943  Iron chloride, iron
                                                  dichloride, iron
                                                  protochloride.
Ferrous sulfate....................     7720787  Green vitriol..............
                                        7782630  Iron vitriol, iron sulfate,
                                                  iron protosulfate.
Formaldehyde.......................       50000  Methyl aldehyde, methanal,
                                                  formalin.
Formic acid........................       64186  Methanoic acid.............
Fumaric acid.......................      110178  Trans-butenedioic acid,
                                                  trans-1,2-
                                                  ethylenedicarboxylic acid,
                                                  boletic acid, allomaleic
                                                  acid.
Furfural...........................       98011  2-furaldehyde, pyromucic
                                                  aldehyde.
Guthion............................       86500  Gusathion, azinphos-methyl.
Heptachlor.........................       76448  Velsicol-104, Drinox,
                                                  Heptagran.
Hexachlorocyclopentadiene..........       77474  Perchlorocyclopentadiene...
Hydrochloric acid..................     7647010  Hydrogen chloride, muriatic
                                                  acid.
Hydrofluoric acid..................     7664393  Fluohydric acid............
Hydrogen cyanide...................       74908  Hydrocyanic acid...........
Hydrogen sulfide...................     7783064  Hydrosulfuric acid sulfur
                                                  hydride.
Isoprene...........................       78795  2-methyl-1,3-butadiene.....
Isopropanolamine                       42504461
 dodecylbenzenesulfonate.
Kepone.............................      143500  Chlordecone
                                                  1,1a,3,3a,4,5,5,5a,5b,6-
                                                  decachlorooctahydro-1,3,4-
                                                  metheno-2H-
                                                  cyclobuta(cd)pentalen-2-
                                                  one.

[[Page 140]]

 
Lead acetate.......................      301042  Sugar of lead..............
Lead arsenate......................     7784409
                                        7645252
                                       10102484
Lead chloride......................     7758954
Lead fluoborate....................    13814965  Lead fluoroborate..........
Lead fluoride......................     7783462  Lead difluoride, plumbous
                                                  fluoride.
Lead iodide........................    10101630
Lead nitrate.......................    10099748
Lead stearate......................     7428480  Stearic acid lead salt.....
                                        1072351
                                       52652592
Lead sulfate.......................     7446142
Lead sulfide.......................     1314870  Galena.....................
Lead thiocyanate...................      592870  Lead sulfocyanate..........
Lindane............................       58899  Gamma-BHC, gamma-benzene
                                                  hexachloride.
Lithium chromate...................    14307358
Malathion..........................      121755  Phospothion................
Maleic acid........................      110167  Cis-butenedioic acid, cis-
                                                  1,2-ethylenedicarboxylic
                                                  acid, toxilic acid.
Maleic anhydride...................      108316  2,5-furandione, cis-
                                                  butenedioic anhydride,
                                                  toxilic anhydride.
Mercaptodimethur...................      203657  Mesurol....................
Mercuric cyanide...................      592041  Mercury cyanide............
Mercuric nitrate...................    10045940  Mercury nitrate, mercury
                                                  pernitrate.
Mercuric sulfate...................     7783359  Mercury sulfate, mercury
                                                  persulfate.
Mercuric thiocyanate...............      592858  Mercury thiocyanate,
                                                  mercuric sulfocyanate,
                                                  mercuric sulfocyanide.
Mercurous nitrate..................     7782867
                                       10415755  Mercury protonitrate.......
Methoxychlor.......................       72435  DMDT, methoxy-DDT..........
Methyl mercaptan...................       74931  Methanethiol,
                                                  mercaptomethane, methyl
                                                  sulfhydrate, thiomethyl
                                                  alcohol.
Methyl methacrylate................       80626  Methacrylic acid methyl
                                                  ester, methyl-2-methyl-2-
                                                  propenoate.
Methyl parathion...................      298000  Nitrox-80..................
Mevinphos..........................     7786347  Phosdrin...................
Mexacarbate........................      315184  Zectran....................
Monoethylamine.....................       75047  Ethylamine, aminoethane....
Monomethylamine....................       74895  Methylamine, aminomethane..
Naled..............................      300765  Dibrom.....................
Naphthalene........................       91203  White tar, tar camphor,
                                                  naphthalin.
Naphthenic acid....................     1338245  Cyclohexanecarboxylic acid,
                                                  hexahydrobenzoic acid.
Nickel ammonium sulfate............    15699180  Ammonium nickel sulfate....
Nickel chloride....................    37211055  Nickelous chloride.........
                                        7718549
Nickel hydroxide...................    12054487  Nickelous hydroxide........
Nickel nitrate.....................    14216752
Nickel sulfate.....................     7786814  Nickelous sulfate..........
Nitric acid........................     7697372  Aqua fortis................
Nitrobenzene.......................       98953  Nitrobenzol, oil of mirbane
Nitrogen dioxide...................    10102440  Nitrogen tetraoxide........
Nitrophenol (mixed)................    25154556  Mononitrophenol............  m-....................      554847
                                                                              o-....................       88755
                                                                              p-....................      100027
Nitrotoluene.......................     1321126  ...........................  Ortho.................       88722
                                                                              Meta..................       99081
                                                                              Para..................       99990
Paraformaldehyde...................    30525894  Paraform, Formagene,
                                                  Triformol, polymerized
                                                  formaldehyde,
                                                  polyoxymethylene.
Parathion..........................       56382  DNTP, Niran................
Pentachlorophenol..................       87865  PCP, Penta.................
Phenol.............................      108952  Carbolic acid, phenyl
                                                  hydroxide, hydroxybenzene,
                                                  oxybenzene.
Phosgene...........................       75445  Diphosgene, carbonyl
                                                  chloride, chloroformyl
                                                  chloride.
Phosphoric acid....................     7664382  Orthophosphoric acid.......
Phosphorus.........................     7723140  Black phosphorus, red
                                                  phosphorus, white
                                                  phosphorus, yellow
                                                  phosphorus.
Phosphorus oxychloride.............    10025873  Phosphoryl chloride,
                                                  phosphorus chloride.
Phosphorus pentasulfide............     1314803  Phosphoric sulfide,
                                                  thiophosphoric anhydride,
                                                  phosphorus persulfide.

[[Page 141]]

 
Phosphorus trichloride.............     7719122  Phosphorous chloride.......
Polychorinated biphenyls...........     1336363  PCB, Aroclor,
                                                  polychlorinated diphenyls.
Potassium arsenate.................     7784410
Potassium arsenite.................    10124502  Potassium metaarsenite.....
Potassium bichromate...............     7778509  Potassium dichromate.......
Potassium chromate.................     7789006
Potassium cyanide..................      151508
Potassium hydroxide................     1310583  Potassium hydrate, caustic
                                                  potash, potassa.
Potassium permanganate.............     7722647  Chameleon mineral..........
Propargite.........................     2312358  Omite......................
Propionic acid.....................       79094  Propanoic acid,
                                                  methylacetic acid,
                                                  ethylformic acid.
Propionic anhydride................      123626  Propanoic anhydride,
                                                  methylacetic anhydride.
Propylene oxide....................       75569  Propene oxide..............
Pyrethrins.........................      121299  Pyrethrin I................
                                         121211  Pyrethrin II...............
Quinoline..........................       91225  1-benzazine,
                                                  benzo(b)pyridine,
                                                  leuocoline, chinoleine,
                                                  leucol.
Resorcinol.........................      108463  Resorcin, 1,3-benzenediol,
                                                  meta-dihydroxybenzene.
Selenium oxide.....................     7446084  Selenium dioxide...........
Silver nitrate.....................     7761888  Nitric acid silver (1+)
                                                  salt lunar caustic.
Sodium.............................     7440235  Natrium....................
Sodium arsenate....................     7631892  Disodium arsenate..........
Sodium arsenite....................     7784465  Sodium metaarsenite........
Sodium bichromate..................    10588019  Sodium dichromate..........
Sodium bifluoride..................     1333831
Sodium bisulfite...................     7631905  Sodium acid sulfite, sodium
                                                  hydrogen sulfite.
Sodium chromate....................     7775113
Sodium cyanide.....................      143339
Sodium dodecylbenzene-sulfonate....    25155300
Sodium fluoride....................     7681494  Villiaumite................
Sodium hydrosulfide................    16721805  Sodium hydrogen sulfide....
Sodium hydroxide...................     1310732  Caustic soda, soda lye,
                                                  sodium hydrate.
Sodium hypochlorite................     7681529  Bleach.....................
                                       10022705
Sodium methylate...................      124414  Sodium methoxide...........
Sodium nitrite.....................     7632000
Sodium phosphate, dibasic..........     7558794
                                       10039324
                                       10140655
Sodium phosphate, tribasic.........     7785844
                                        7601549
                                       10101890
                                       10361894
                                        7758294
                                       10124568
Sodium selenite....................    10102188
                                        7782823
Strontium chromate.................     7789062
Strychnine.........................       57249
Styrene............................      100425  Vinylbenzene,
                                                  phenylethylene, styrol,
                                                  styrolene, cinnamene,
                                                  cinnamol.
Sulfuric acid......................     7664939  Oil of vitriol, oleum......
Sulfur monochloride................    12771083  Sulfur chloride............
2,4,5-T acid.......................       93765  2,4,5-
                                                  trichlorophenoxyacetic
                                                  acid.
2,4,5-T amines.....................     6369966  Acetic acid (2,4,5-
                                                  trichlorophenoxy)-compound
                                                  with N,N-
                                                  dimethylmethanamine (1:1).
                                        6369977  Acetic acid (2,4,5-
                                                  trichlorophenoxy)-compound
                                                  with N-methylmethanamine
                                                  (1:1).
                                        1319728  Acetic acid (2,4,5-
                                                  trichlorophenoxy)-compound
                                                  with 1-amino-2-propanol
                                                  (1:1).
                                        3813147  Acetic acid (2,4,5-
                                                  trichlorophenoxy)-compound
                                                  with 2,2'2''-nitrilotris
                                                  [ethanol] (1:1).
2,4,5-T esters.....................     2545597  2,4,5-
                                                  trichlorophenoxyacetic
                                                  esters.
                                          93798
                                       61792072
                                        1928478
                                       25168154
2,4,5-T salts......................    13560991  Acetic acid (2,4,5-
                                                  trichlorophenoxy)-sodium
                                                  salt.
TDE................................       72548  DDD........................

[[Page 142]]

 
2,4,5-TP acid......................       93721  Propanoic acid 2-(2,4,5-
                                                  trichlorophenoxy).
2,4,5-TP esters....................    32534955  Propanoic acid, 2-(2,4,5-
                                                  trichlorophenoxy)-,
                                                  isooctyl ester.
Tetraethyl lead....................       78002  Lead tetraethyl, TEL.......
Tetraethyl pyrophosphate...........      107493  TEPP.......................
Thallium sulfate...................    10031591
                                        7446186
Toluene............................      108883  Toluol, methylbenzene,
                                                  phenylmethane, Methacide.
Toxaphene..........................     8001352  Camphechlor................
Trichlorfon........................       52686  Dipterex...................
                                                 Dylox......................
Trichlorethylene...................       79016  Ethylene trichloride.......
Trichlorophenol....................    25167822  Collunosol, Dowicide 2 or    (2,3,4-)..............    15950660
                                                  2S, Omal, Phenachlor.       (2,3,5-)..............      933788
                                                                              (2,3,6-)..............      933755
                                                                              (2,4,5-)..............       95954
                                                                              (2,4,6-)..............       88062
                                                                              (3,4,5-)..............      609198
Triethanolamine                        27323417
 dodecylbenzenesulfonate.
Triethylamine......................      121448
Trimethylamine.....................       75503  TMA........................
Uranyl acetate.....................      541093
Uranyl nitrate.....................    10102064
                                       36478769
Vanadium pentoxide.................     1314621  Vanadic anhydride, vanadic
                                                  acid anhydride.
Vanadyl sulfate....................    27774136  Vanadic sulfate, vanadium
                                                  sulfate.
Vinyl acetate......................      108054  Acetic acid ethylene ether.
Vinylidene chloride................       75354  1,1-dichlorethylene........
                                                 1,1-dichloroethene.........
Xylene (mixed).....................     1330207  Dimethylbenzene............  m-....................      108383
                                                 Xylol......................  o-....................       95476
                                                                              p-....................      106423
Xylenol............................     1300716  Dimethylphenol,
                                                  hydroxydimethylbenzene.
Zinc acetate.......................      557346
Zinc ammonium chloride.............    14639975
                                       14639986
                                       52628258
Zinc borate........................     1332076
Zinc bromide.......................     7699458
Zinc carbonate.....................     3486359
Zinc chloride......................     7646857  Butter of zinc.............
Zinc cyanide.......................      557211
Zinc fluoride......................     7783495
Zinc formate.......................      557415
Zinc hydrosulfite..................     7779864
Zinc nitrate.......................     7779886
Zinc phenolsulfonate...............      127822  Zinc sulfocarbolate........
Zinc phosphide.....................     1314847
Zinc silicofluoride................    16871719  Zinc fluosilicate..........
Zinc sulfate.......................     7733020  White vitriol, zinc
                                                  vitriol, white copperas.
Zirconium nitrate..................    13746899
Zirconium potassium fluoride.......    16923958
Zirconium sulfate..................    14644612  Disulfatozirconic acid.....
Zirconium tetrachloride............    10026116  ...........................  ......................  ..........
----------------------------------------------------------------------------------------------------------------


        Table 116.4B--List of Hazardous Substances by CAS Number
------------------------------------------------------------------------
               CAS No.                            Common name
------------------------------------------------------------------------
50000...............................  Formaldehyde
50293...............................  DDT
51285...............................  2,4-Dinitrophenol
52686...............................  Trichlorfon
56382...............................  Parathion
56724...............................  Coumaphos
57249...............................  Strychnine
57749...............................  Chlordane
58899...............................  Lindane
60004...............................  Ethylenediaminetetraacetic
                                       acid (EDTA)
60571...............................  Dieldrin
62533...............................  Aniline
62737...............................  Dichlorvos
63252...............................  Carbaryl
64186...............................  Formic acid
64197...............................  Acetic acid
65850...............................  Benzoic acid

[[Page 143]]

 
67663...............................  Chloroform
71432...............................  Benzene
72208...............................  Endrin
72435...............................  Methoxychlor
72548...............................  TDE
74895...............................  Monomethylamine
74908...............................  Hydrogen cyanide
74931...............................  Methyl mercaptan
75047...............................  Monoethylamine
75070...............................  Acetaldehyde
75150...............................  Carbon disulfide
75207...............................  Calcium carbide
75445...............................  Phosgene
75503...............................  Trimethylamine
75649...............................  tert-Butylamine
75865...............................  Acetone cyanohydrin
75990...............................  2,2-Dichloropropionic acid
76448...............................  Heptachlor
78002...............................  Tetraethyl lead
78795...............................  Isoprene
78819...............................  iso-Butylamine
79094...............................  Propionic acid
79312...............................  iso-Butyric acid
79367...............................  Acetyl chloride
80626...............................  Methyl methacrylate
85007...............................  Diquat
86500...............................  Guthion
87865...............................  Pentachlorophenol
88755...............................  o-Nitrophenol
91203...............................  Naphthalene
91225...............................  Quinoline
93765...............................  2,4,5-T acid
93798...............................  2,4,5-T ester
94111...............................  2,4-D ester
94757...............................  2,4-D acid
94791...............................  2,4-D ester
94804...............................  2,4-D Butyl ester
95476...............................  o-Xylene
95487...............................  o-Cresol
98011...............................  Furfural
98884...............................  Benzoyl chloride
98953...............................  Nitrobenzene
99650...............................  m-Dinitrobenzene
100027..............................  p-Nitrophenol
100254..............................  p-Dinitrobenzene
100414..............................  Ethylbenzene
100425..............................  Styrene
100447..............................  Benzyl chloride
100470..............................  Benzonitrile
105464..............................  sec-Butyl acetate
106423..............................  p-Xylene
106445..............................  p-Cresol
107028..............................  Acrolein
107051..............................  Allyl chloride
107131..............................  Acrylonitrile
107153..............................  Ethylenediamine
107186..............................  Allyl alcohol
107493..............................  Tetraethyl pyrophosphate
107926..............................  n-Butyric acid
108054..............................  Vinyl acetate
108247..............................  Acetic anhydride
108316..............................  Maleic anhydride
108383..............................  m-Xylene
108394..............................  m-Cresol
108463..............................  Resorcinol
108883..............................  Toluene
108907..............................  Chlorobenzene
108952..............................  Phenol
109739..............................  n-Butylamine
109897..............................  Diethylamine
110167..............................  Maleic acid
110178..............................  Fumaric acid
110190..............................  iso-Butyl acetate
110827..............................  Cyclohexane
115297..............................  Endosulfan
115322..............................  Dicofol
117806..............................  Dichlone
121211..............................  Pyrethrin
121299..............................  Pyrethrin
121448..............................  Triethylamine
121755..............................  Malathion
123626..............................  Propionic anhydride
123864..............................  n-Butyl acetate
123922..............................  iso-Amyl acetate
124403..............................  Dimethylamine
124414..............................  Sodium methylate
127822..............................  Zinc phenolsulfonate
133062..............................  Captan
142712..............................  Cupric acetate
143339..............................  Sodium cyanide
151508..............................  Potassium cyanide
298000..............................  Methyl parathion
298044..............................  Disulfoton
300765..............................  Naled
301042..............................  Lead acetate
309002..............................  Aldrin
315184..............................  Mexacarbate
329715..............................  2,5-Dinitrophenol
330541..............................  Diuron
333415..............................  Diazinon
506774..............................  Cyanogen chloride
506876..............................  Ammonium carbonate
506967..............................  Acetyl bromide
513495..............................  sec-Butylamine
528290..............................  o-Dinitrobenzene
540885..............................  tert-Butyl acetate
541093..............................  Uranyl acetate
542621..............................  Barium cyanide
543908..............................  Cadmium acetate
544183..............................  Cobaltous formate
554847..............................  m-Nitrophenol
557211..............................  Zinc cyanide
557346..............................  Zinc acetate
557415..............................  Zinc formate
563122..............................  Ethion
573568..............................  2,6-Dinitrophenol
592018..............................  Calcium cyanide
592041..............................  Mercuric cyanide
592858..............................  Mercuric thiocyanate
592870..............................  Lead thiocyanate
625161..............................  tert-Amyl acetate
626380..............................  sec-Amyl acetate
628637..............................  n-Amyl acetate
631618..............................  Ammonium acetate
815827..............................  Cupric tartrate
1066304.............................  Chromic acetate
1066337.............................  Ammonium bicarbonate
1072351.............................  Lead stearate
1111780.............................  Ammonium carbamate
1185575.............................  Ferric ammonium citrate
1194656.............................  Dichlobenil
1300716.............................  Xylenol
1303282.............................  Arsenic pentoxide
1303328.............................  Arsenic disulfide
1303339.............................  Arsenic trisulfide
1309644.............................  Antimony trioxide
1310583.............................  Potassium hydroxide
1310732.............................  Sodium hydroxide
1314621.............................  Vanadium pentoxide
1314803.............................  Phosphorus pentasulfide
1314847.............................  Zinc phosphide
1314870.............................  Lead sulfide

[[Page 144]]

 
1319773.............................  Cresol (mixed)
1320189.............................  2,4-D ester
1327533.............................  Arsenic trioxide
1330207.............................  Xylene
1332076.............................  Zinc borate
1333831.............................  Sodium bifluoride
1336216.............................  Ammonium hydroxide
1336363.............................  Polychlorinated biphenyls
1338245.............................  Naphthenic acid
1341497.............................  Ammonium bifluoride
1762954.............................  Ammonium thiocyanate
1863634.............................  Ammonium benzoate
1918009.............................  Dicamba
1928387.............................  2,4-D esters
1928478.............................  2,4,5-T ester
1928616.............................  2,4-D ester
1929733.............................  2,4-D ester
2545597.............................  2,4,5-T ester
2764729.............................  Diquat
2921882.............................  Chlorpyrifos
2944674.............................  Ferric ammonium oxalate
2971382.............................  2,4-D ester
3012655.............................  Ammonium citrate, dibasic
3164292.............................  Ammonium tartrate
3251238.............................  Cupric nitrate
3486359.............................  Zinc carbonate
5893663.............................  Cupric oxalate
5972736.............................  Ammonium oxalate
6009707.............................  Ammonium oxalate
6369966.............................  2,4,5-T ester
7428480.............................  Lead stearate
7440235.............................  Sodium
7446084.............................  Selenium oxide
7446142.............................  Lead sulfate
7447394.............................  Cupric chloride
7558794.............................  Sodium phosphate, dibasic
7601549.............................  Sodium phosphate, tribasic
7631892.............................  Sodium arsenate
7631905.............................  Sodium bisulfite
7632000.............................  Sodium nitrite
7645252.............................  Lead arsenate
7646857.............................  Zinc chloride
7647010.............................  Hydrochloric acid
7647189.............................  Antimony pentachloride
7664382.............................  Phosphoric acid
7664393.............................  Hydrofluoric acid
7664417.............................  Ammonia
7664939.............................  Sulfuric acid
7681494.............................  Sodium fluoride
7681529.............................  Sodium hypochlorite
7697372.............................  Nitric acid
7699458.............................  Zinc bromide
7705080.............................  Ferric chloride
7718549.............................  Nickel chloride
7719122.............................  Phosphorus trichloride
7720787.............................  Ferrous sulfate
7722647.............................  Potassium permanganate
7723140.............................  Phosphorus
7733020.............................  Zinc sulfate
7758294.............................  Sodium phosphate, tribasic
7758943.............................  Ferrous chloride
7758954.............................  Lead chloride
7758987.............................  Cupric sulfate
7773060.............................  Ammonium sulfamate
7775113.............................  Sodium chromate
7778441.............................  Calcium arsenate
7778509.............................  Potassium bichromate
7778543.............................  Calcium hypochlorite
7779864.............................  Zinc hydrosulfite
7779886.............................  Zinc nitrate
7782505.............................  Chlorine
7782630.............................  Ferrous sulfate
7782823.............................  Sodium selenite
7782867.............................  Mercurous nitrate
7783359.............................  Mercuric sulfate
7783462.............................  Lead fluoride
7783495.............................  Zinc fluoride
7783508.............................  Ferric fluoride
7783564.............................  Antimony trifluoride
7784341.............................  Arsenic trichloride
7784409.............................  Lead arsenate
7784410.............................  Potassium arsenate
7784465.............................  Sodium arsenite
7785844.............................  Sodium phosphate, tribasic
7786347.............................  Mevinphos
7786814.............................  Nickel sulfate
7787475.............................  Beryllium chloride
7787497.............................  Beryllium fluoride
7787555.............................  Beryllium nitrate
7788989.............................  Ammonium chromate
7789006.............................  Potassium chromate
7789062.............................  Strontium chromate
7789095.............................  Ammonium bichromate
7789426.............................  Cadmium bromide
7789437.............................  Cobaltous bromide
7789619.............................  Antimony tribromide
7790945.............................  Chlorosulfonic acid
8001352.............................  Toxaphene
10022705............................  Sodium hypochlorite
10025873............................  Phosphorus oxychloride
10025919............................  Antimony trichloride
10026116............................  Zirconium tetrachloride
10028225............................  Ferric sulfate
10028247............................  Sodium phosphate, dibasic
10039324............................  Sodium phosphate, dibasic
10043013............................  Aluminum sulfate
10045893............................  Ferrous ammonium sulfate
10045940............................  Mercuric nitrate
10049055............................  Chromous chloride
10099748............................  Lead nitrate
10101538............................  Chromic sulfate
10101630............................  Lead iodide
10101890............................  Sodium phosphate, tribasic
10102064............................  Uranyl nitrate
10102188............................  Sodium selenite
10102440............................  Nitrogen dioxide
10102484............................  Lead arsenate
10108642............................  Cadmium chloride
10124502............................  Potassium arsenite
10124568............................  Sodium phosphate, tribasic
10140655............................  Sodium phosphate, dibasic
10192300............................  Ammonium bisulfite
10196040............................  Ammonium sulfite
10361894............................  Sodium phosphate, tribasic
10380297............................  Cupric sulfate, ammoniated
10415755............................  Mercurous nitrate
10421484............................  Ferric nitrate
10588019............................  Sodium bichromate
11115745............................  Chromic acid
12002038............................  Cupric acetoarsenite
12054487............................  Nickel hydroxide
12125018............................  Ammonium fluoride
12125029............................  Ammonium chloride
12135761............................  Ammonium sulfide
12771083............................  Sulfur chloride
13597994............................  Beryllium nitrate
13746899............................  Zirconium nitrate
13765190............................  Calcium chromate
13814965............................  Lead fluoborate
13826830............................  Ammonium fluoborate
13952846............................  sec-Butylamine
14017415............................  Cobaltous sulfamate

[[Page 145]]

 
14216752............................  Nickel nitrate
14258492............................  Ammonium oxalate
14307358............................  Lithium chromate
14307438............................  Ammonium tartrate
14639975............................  Zinc ammonium chloride
14639986............................  Zinc ammonium chloride
14644612............................  Zirconium sulfate
15699180............................  Nickel ammonium sulfate
16721805............................  Sodium hydrosulfide
16871719............................  Zinc silicofluoride
16919190............................  Ammonium silicofluoride
16923958............................  Zirconium potassium fluoride
25154545............................  Dinitrobenzene
25154556............................  Nitrophenol
25155300............................  Sodium dodecylbenzenesulfonate
25167822............................  Trichlorophenol
25168154............................  2,4,5-T ester
25168267............................  2,4-D ester
26264062............................  Calcium dodecylbenzenesulfonate
27176870............................  Dodecylbenzenesulfonic acid
27323417............................  Triethanolamine
                                       dodecylbenzenesulfonate
27774136............................  Vanadyl sulfate
28300745............................  Antimony potassium tartrate
30525894............................  Paraformaldehyde
36478769............................  Uranyl nitrate
37211055............................  Nickel chloride
42504461............................  Dodecylbenzenesulfonate
                                       isopropanolamine
52628258............................  Zinc ammonium chloride
52740166............................  Calcium arsenite
53467111............................  2,4-D ester
55488874............................  Ferric ammonium oxalate
61792072............................  2,4,5-T ester
------------------------------------------------------------------------


[43 FR 10474, Mar. 13, 1978; 43 FR 27533, June 26, 1978, as amended at 
44 FR 10268, Feb. 16, 1979; 44 FR 65400, Nov. 13, 1979; 44 FR 66602, 
Nov. 20, 1979; 54 FR 33482, Aug. 14, 1989]



PART 117_DETERMINATION OF REPORTABLE QUANTITIES FOR HAZARDOUS SUBSTANCES--

Table of Contents



                      Subpart A_General Provisions

Sec.
117.1 Definitions.
117.2 Abbreviations.
117.3 Determination of reportable quantities.

                         Subpart B_Applicability

117.11 General applicability.
117.12 Applicability to discharges from facilities with NPDES permits.
117.13 Applicability to discharges from publicly owned treatment works 
          and their users.
117.14 Demonstration projects.

         Subpart C_Notice of Discharge of a Reportable Quantity

117.21 Notice.
117.23 Liabilities for removal.

    Authority: Secs. 311 and 501(a), Federal Water Pollution Control Act 
(33 U.S.C. 1251 et seq.), (``the Act'') and Executive Order 11735, 
superseded by Executive Order 12777, 56 FR 54757.

    Source: 44 FR 50776, Aug. 29, 1979, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 117.1  Definitions.

    As used in this part, all terms shall have the meanings stated in 40 
CFR part 116.
    (a) Reportable quantities means quantities that may be harmful as 
set forth in Sec. 117.3, the discharge of which is a violation of 
section 311(b)(3) and requires notice as set forth in Sec. 117.21.
    (b) Administrator means the Administrator of the Environmental 
Protection Agency (``EPA'').
    (c) Mobile source means any vehicle, rolling stock, or other means 
of transportation which contains or carries a reportable quantity of a 
hazardous substance.
    (d) Public record means the NPDES permit application or the NPDES 
permit itself and the materials comprising the administrative record for 
the permit decision specified in Sec. 124.18 of this chapter.
    (e) National Pretreatment Standard or Pretreatment Standard means 
any regulation containing pollutant discharge limits promulgated by the 
EPA in accordance with section 307 (b) and (c) of the Act, which applies 
to industrial users of a publicly owned treatment works. It further 
means any State or local pretreatment requirement applicable to a 
discharge and which is incorporated into a permit issued to a publicly 
owned treatment works under section 402 of the Act.
    (f) Publicly Owned Treatment Works or POTW means a treatment works 
as defined by section 212 of the Act, which is owned by a State or 
municipality (as defined by section 502(4) of the Act). This definition 
includes any sewers that convey wastewater to such a treatment works, 
but does not include

[[Page 146]]

pipes, sewers or other conveyances not connected to a facility providing 
treatment. The term also means the municipality as defined in section 
502(4) of the Act, which has jurisdiction over the indirect discharges 
to and the discharges from such a treatment works.
    (g) Remove or removal refers to removal of the oil or hazardous 
substances from the water and shoreline or the taking of such other 
actions as may be necessary to minimize or mitigate damage to the public 
health or welfare, including, but not limited to, fish, shellfish, 
wildlife, and public and private property, shorelines, and beaches.
    (h) Contiguous zone means the entire zone established by the United 
States under Article 24 of the Convention on the Territorial Sea and 
Contiguous Zone.
    (i) Navigable waters means ``waters of the United States, including 
the territorial seas.'' This term includes:
    (1) 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;
    (2) Interstate waters, including interstate wetlands;
    (3) All other waters such as intrastate lakes, rivers, streams, 
(including intermittent streams), mudflats, sandflats, and wetlands, the 
use, degradation or destruction of which would affect or could affect 
interstate or foreign commerce including any such waters:
    (i) Which are or could be used by interstate or foreign travelers 
for recreational or other purposes;
    (ii) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce;
    (iii) Which are used or could be used for industrial purposes by 
industries in interstate commerce;
    (4) All impoundments of waters otherwise defined as navigable waters 
under this paragraph;
    (5) Tributaries of waters identified in paragraphs (i) (1) through 
(4) of this section, including adjacent wetlands; and
    (6) Wetlands adjacent to waters identified in paragraphs (i) (1) 
through (5) of this section (``Wetlands'' means those areas that are 
inundated or saturated by surface or ground water 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 included playa lakes, 
swamps, marshes, bogs, and similar areas such as sloughs, prairie 
potholes, wet meadows, prairie river overflows, mudflats, and natural 
ponds): Provided, That waste treatment systems (other than cooling ponds 
meeting the criteria of this paragraph) are not waters of the United 
States.


Navigable waters 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.
    (j) Process waste water 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.

[44 FR 50776, Aug. 29, 1979, as amended at 58 FR 45039, Aug. 25, 1993; 
65 FR 30904, May 15, 2000]



Sec. 117.2  Abbreviations.

    NPDES equals National Pollutant Discharge Elimination System. RQ 
equals reportable quantity.



Sec. 117.3  Determination of reportable quantities.

    Each substance in Table 117.3 that is listed in Table 302.4, 40 CFR 
part 302, is assigned the reportable quantity listed in Table 302.4 for 
that substance.

 Table 117.3--Reportable Quantities of Hazardous Substances Designated 
             Pursuant to Section 311 of the Clean Water Act

    Note: The first number under the column headed ``RQ'' is the 
reportable quantity in pounds. The number in parentheses is the metric 
equivalent in kilograms. For convenience, the table contains a column 
headed ``Category'' which lists the code letters ``X'',

[[Page 147]]

``A'', ``B'', ``C'', and ``D'' associated with reportable quantities of 
1, 10, 100, 1000, and 5000 pounds, respectively.

  Table 117.3--Reportable Quantities of Hazardous Substances Designated
             Pursuant to Section 311 of the Clean Water Act
------------------------------------------------------------------------
                                                         RQ in pounds
            Material                   Category           (kilograms)
------------------------------------------------------------------------
Acetaldehyde....................  C.................  1,000 (454)
Acetic acid.....................  D.................  5,000 (2,270)
Acetic anhydride................  D.................  5,000 (2,270)
Acetone cyanohydrin.............  A.................  10 (4.54)
Acetyl bromide..................  D.................  5,000 (2,270)
Acetyl chloride.................  D.................  5,000 (2,270)
Acrolein........................  X.................  1 (0.454)
Acrylonitrile...................  B.................  100 (45.4)
Adipic acid.....................  D.................  5,000 (2,270)
Aldrin..........................  X.................  1 (0.454)
Allyl alcohol...................  B.................  100 (45.4)
Allyl chloride..................  C.................  1,000 (454)
Aluminum sulfate................  D.................  5,000 (2,270)
Ammonia.........................  B.................  100 (45.4)
Ammonium acetate................  D.................  5,000 (2,270)
Ammonium benzoate...............  D.................  5,000 (2,270)
Ammonium bicarbonate............  D.................  5,000 (2,270)
Ammonium bichromate.............  A.................  10 (4.54)
Ammonium bifluoride.............  B.................  100 (45.4)
Ammonium bisulfite..............  D.................  5,000 (2,270)
Ammonium carbamate..............  D.................  5,000 (2,270)
Ammonium carbonate..............  D.................  5,000 (2,270)
Ammonium chloride...............  D.................  5,000 (2,270)
Ammonium chromate...............  A.................  10 (4.54)
Ammonium citrate dibasic........  D.................  5,000 (2,270)
Ammonium fluoborate.............  D.................  5,000 (2,270)
Ammonium fluoride...............  B.................  100 (45.4)
Ammonium hydroxide..............  C.................  1,000 (454)
Ammonium oxalate................  D.................  5,000 (2,270)
Ammonium silicofluoride.........  C.................  1,000 (454)
Ammonium sulfamate..............  D.................  5,000 (2,270)
Ammonium sulfide................  B.................  100 (45.4)
Ammonium sulfite................  D.................  5,000 (2,270)
Ammonium tartrate...............  D.................  5,000 (2,270)
Ammonium thiocyanate............  D.................  5,000 (2,270)
Amyl acetate....................  D.................  5,000 (2,270)
Aniline.........................  D.................  5,000 (2,270)
Antimony pentachloride..........  C.................  1,000 (454)
Antimony potassium tartrate.....  B.................  100 (45.4)
Antimony tribromide.............  C.................  1,000 (454)
Antimony trichloride............  C.................  1,000 (454)
Antimony trifluoride............  C.................  1,000 (454)
Antimony trioxide...............  C.................  1,000 (454)
Arsenic disulfide...............  X.................  1 (0.454)
Arsenic pentoxide...............  X.................  1 (0.454)
Arsenic trichloride.............  X.................  1 (0.454)
Arsenic trioxide................  X.................  1 (0.454)
Arsenic trisulfide..............  X.................  1 (0.454)
Barium cyanide..................  A.................  10 (4.54)
Benzene.........................  A.................  10 (4.54)
Benzoic acid....................  D.................  5,000 (2,270)
Benzonitrile....................  D.................  5,000 (2,270)
Benzoyl chloride................  C.................  1,000 (454)
Benzyl chloride.................  B.................  100 (45.4)
Beryllium chloride..............  X.................  1 (0.454)
Beryllium fluoride..............  X.................  1 (0.454)
Beryllium nitrate...............  X.................  1 (0.454)
Butyl acetate...................  D.................  5,000 (2,270)
Butylamine......................  C.................  1,000 (454)
n-Butyl phthalate...............  A.................  10 (4.54)
Butyric acid....................  D.................  5,000 (2,270)
Cadmium acetate.................  A.................  10 (4.54)
Cadmium bromide.................  A.................  10 (4.54)
Cadmium chloride................  A.................  10 (4.54)
Calcium arsenate................  X.................  1 (0.454)
Calcium arsenite................  X.................  1 (0.454)
Calcium carbide.................  A.................  10 (4.54)

[[Page 148]]

 
Calcium chromate................  A.................  10 (4.54)
Calcium cyanide.................  A.................  10 (4.54)
Calcium dodecylbenzenesulfonate.  C.................  1,000 (454)
Calcium hypochlorite............  A.................  10 (4.54)
Captan..........................  A.................  10 (4.54)
Carbaryl........................  B.................  100 (45.4)
Carbofuran......................  A.................  10 (4.54)
Carbon disulfide................  B.................  100 (45.4)
Carbon tetrachloride............  A.................  10 (4.54)
Chlordane.......................  X.................  1 (0.454)
Chlorine........................  A.................  10 (4.54)
Chlorobenzene...................  B.................  100 (45.4)
Chloroform......................  A.................  10 (4.54)
Chlorosulfonic acid.............  C.................  1,000 (454)
Chlorpyrifos....................  X.................  1 (0.454)
Chromic acetate.................  C.................  1,000 (454)
Chromic acid....................  A.................  10 (4.54)
Chromic sulfate.................  C.................  1,000 (454)
Chromous chloride...............  C.................  1,000 (454)
Cobaltous bromide...............  C.................  1,000 (454)
Cobaltous formate...............  C.................  1,000 (454)
Cobaltous sulfamate.............  C.................  1,000 (454)
Coumaphos.......................  A.................  10 (4.54)
Cresol..........................  B.................  100 (45.4)
Crotonaldehyde..................  B.................  100 (45.4)
Cupric acetate..................  B.................  100 (45.4)
Cupric acetoarsenite............  X.................  1 (0.454)
Cupric chloride.................  A.................  10 (4.54)
Cupric nitrate..................  B.................  100 (45.4)
Cupric oxalate..................  B.................  100 (45.4)
Cupric sulfate..................  A.................  10 (4.54)
Cupric sulfate, ammoniated......  B.................  100 (45.4)
Cupric tartrate.................  B.................  100 (45.4)
Cyanogen chloride...............  A.................  10 (4.54)
Cyclohexane.....................  C.................  1,000 (454)
2,4-D Acid......................  B.................  100 (45.4)
2,4-D Esters....................  B.................  100 (45.4)
DDT.............................  X.................  1 (0.454)
Diazinon........................  X.................  1 (0.454)
Dicamba.........................  C.................  1,000 (454)
Dichlobenil.....................  B.................  100 (45.4)
Dichlone........................  X.................  1 (0.454)
Dichlorobenzene.................  B.................  100 (45.4)
Dichloropropane.................  C.................  1,000 (454)
Dichloropropene.................  B.................  100 (45.4)
Dichloropropene-Dichloropropane   B.................  100 (45.4)
 (mixture).
2,2-Dichloropropionic acid......  D.................  5,000 (2,270)
Dichlorvos......................  A.................  10 (4.54)
Dicofol.........................  A.................  10 (4.54)
Dieldrin........................  X.................  1 (0.454)
Diethylamine....................  B.................  100 (45.4)
Dimethylamine...................  C.................  1,000 (454)
Dinitrobenzene (mixed)..........  B.................  100 (45.4)
Dinitrophenol...................  A.................  10 (45.4)
Dinitrotoluene..................  A.................  10 (4.54)
Diquat..........................  C.................  1,000 (454)
Disulfoton......................  X.................  1 (0.454)
Diuron..........................  B.................  100 (45.4)
Dodecylbenzenesulfonic acid.....  C.................  1,000 (454)
Endosulfan......................  X.................  1 (0.454)
Endrin..........................  X.................  1 (0.454)
Epichlorohydrin.................  B.................  100 (45.4)
Ethion..........................  A.................  10 (4.54)
Ethylbenzene....................  C.................  1,000 (454)
Ethylenediamine.................  D.................  5,000 (2,270)
Ethylenediamine-tetraacetic acid  D.................  5,000 (2,270)
 (EDTA).
Ethylene dibromide..............  X.................  1 (0.454)
Ethylene dichloride.............  B.................  100 (45.4)
Ferric ammonium citrate.........  C.................  1,000 (454)
Ferric ammonium oxalate.........  C.................  1,000 (454)
Ferric chloride.................  C.................  1,000 (454)

[[Page 149]]

 
Ferric fluoride.................  B.................  100 (45.4)
Ferric nitrate..................  C.................  1,000 (454)
Ferric sulfate..................  C.................  1,000 (454)
Ferrous ammonium sulfate........  C.................  1,000 (454)
Ferrous chloride................  B.................  100 (45.4)
Ferrous sulfate.................  C.................  1,000 (454)
Formaldehyde....................  B.................  100 (45.4)
Formic acid.....................  D.................  5,000 (2,270)
Fumaric acid....................  D.................  5,000 (2,270)
Furfural........................  D.................  5,000 (2,270)
Guthion.........................  X.................  1 (0.454)
Heptachlor......................  X.................  1 (0.454)
Hexachlorocyclopentadiene.......  A.................  10 (4.54)
Hydrochloric acid...............  D.................  5,000 (2,270)
Hydrofluoric acid...............  B.................  100 (45.4)
Hydrogen cyanide................  A.................  10 (4.54)
Hydrogen sulfide................  B.................  100 (45.4)
Isoprene........................  B.................  100 (45.4)
Isopropanolamine                  C.................  1,000 (454)
 dodecylbenzenesulfonate.
Kepone..........................  X.................  1 (0.454)
Lead acetate....................  A.................  10 (4.54)
Lead arsenate...................  X.................  1 (0.454)
Lead chloride...................  A.................  10 (4.54)
Lead fluoborate.................  A.................  10 (4.54)
Lead fluoride...................  A.................  10 (4.54)
Lead iodide.....................  A.................  10 (4.54)
Lead nitrate....................  A.................  10 (4.54)
Lead stearate...................  A.................  10 (4.54)
Lead sulfate....................  A.................  10 (4.54)
Lead sulfide....................  A.................  10 (4.54)
Lead thiocyanate................  A.................  10 (4.54)
Lindane.........................  X.................  1 (0.454)
Lithium chromate................  A.................  10 (4.54)
Malathion.......................  B.................  100 (45.4)
Maleic acid.....................  D.................  5,000 (2,270)
Maleic anhydride................  D.................  5,000 (2,270)
Mercaptodimethur................  A.................  10 (4.54)
Mercuric cyanide................  X.................  1 (0.454)
Mercuric nitrate................  A.................  10 (4.54)
Mercuric sulfate................  A.................  10 (4.54)
Mercuric thiocyanate............  A.................  10 (4.54)
Mercurous nitrate...............  A.................  10 (4.54)
Methoxychlor....................  X.................  1 (0.454)
Methyl mercaptan................  B.................  100 (45.4)
Methyl methacrylate.............  C.................  1,000 (454)
Methyl parathion................  B.................  100 (45.4)
Mevinphos.......................  A.................  10 (4.54)
Mexacarbate.....................  C.................  1,000 (454)
Monoethylamine..................  B.................  100 (45.4)
Monomethylamine.................  B.................  100 (45.4)
Naled...........................  A.................  10 (4.54)
Naphthalene.....................  B.................  100 (45.4)
Naphthenic acid.................  B.................  100 (45.4)
Nickel ammonium sulfate.........  B.................  100 (45.4)
Nickel chloride.................  B.................  100 (45.4)
Nickel hydroxide................  A.................  10 (4.54)
Nickel nitrate..................  B.................  100 (45.4)
Nickel sulfate..................  B.................  100 (45.4)
Nitric acid.....................  C.................  1,000 (454)
Nitrobenzene....................  C.................  1,000 (454)
Nitrogen dioxide................  A.................  10 (4.54)
Nitrophenol (mixed).............  B.................  100 (45.4)
Nitrotoluene....................  C.................  1,000 (454)
Paraformaldehyde................  C.................  1,000 (454)
Parathion.......................  A.................  10 (4.54)
Pentachlorophenol...............  A.................  10 (4.54)
Phenol..........................  C.................  1,000 (454)
Phosgene........................  A.................  10 (4.54)
Phosphoric acid.................  D.................  5,000 (2,270)
Phosphorus......................  X.................  1 (0.454)
Phosphorus oxychloride..........  C.................  1,000 (454)

[[Page 150]]

 
Phosphorus pentasulfide.........  B.................  100 (45.4)
Phosphorus trichloride..........  C.................  1,000 (454)
Polychlorinated biphenyls.......  X.................  1 (0.454)
Potassium arsenate..............  X.................  1 (0.454)
Potassium arsenite..............  X.................  1 (0.454)
Potassium bichromate............  A.................  10 (4.54)
Potassium chromate..............  A.................  10 (4.54)
Potassium cyanide...............  A.................  10 (4.54)
Potassium hydroxide.............  C.................  1,000 (454)
Potassium permanganate..........  B.................  100 (45.4)
Propargite......................  A.................  10 (4.54)
Propionic acid..................  D.................  5,000 (2,270)
Propionic anhydride.............  D.................  5,000 (2,270)
Propylene oxide.................  B.................  100 (45.4)
Pyrethrins......................  X.................  1 (0.454)
Quinoline.......................  D.................  5,000 (2,270)
Resorcinol......................  D.................  5,000 (2,270)
Selenium oxide..................  A.................  10 (4.54)
Silver nitrate..................  X.................  1 (0.454)
Sodium..........................  A.................  10 (4.54)
Sodium arsenate.................  X.................  1 (0.454)
Sodium arsenite.................  X.................  1 (0.454)
Sodium bichromate...............  A.................  10 (4.54)
Sodium bifluoride...............  B.................  100 (45.4)
Sodium bisulfite................  D.................  5,000 (2,270)
Sodium chromate.................  A.................  10 (4.54)
Sodium cyanide..................  A.................  10 (4.54)
Sodium dodecylbenzenesulfonate..  C.................  1,000 (454)
Sodium fluoride.................  C.................  1,000 (454)
Sodium hydrosulfide.............  D.................  5,000 (2,270)
Sodium hydroxide................  C.................  1,000 (454)
Sodium hypochlorite.............  B.................  100 (45.4)
Sodium methylate................  C.................  1,000 (454)
Sodium nitrite..................  B.................  100 (45.4)
Sodium phosphate, dibasic.......  D.................  5,000 (2,270)
Sodium phosphate, tribasic......  D.................  5,000 (2,270)
Sodium selenite.................  B.................  100 (45.4)
Strontium chromate..............  A.................  10 (4.54)
Strychnine......................  A.................  10 (4.54)
Styrene.........................  C.................  1,000 (454)
Sulfuric acid...................  C.................  1,000 (454)
Sulfur monochloride.............  C.................  1,000 (454)
2,4,5-T acid....................  C.................  1,000 (454)
2,4,5-T amines..................  D.................  5,000 (2,270)
2,4,5-T esters..................  C.................  1,000 (454)
2,4,5-T salts...................  C.................  1,000 (454)
TDE.............................  X.................  1 (0.454)
2,4,5-TP acid...................  B.................  100 (45.4)
2,4,5-TP acid esters............  B.................  100 (45.4)
Tetraethyl lead.................  A.................  10 (4.54)
Tetraethyl pyrophosphate........  A.................  10 (4.54)
Thallium sulfate................  B.................  100 (45.4)
Toluene.........................  C.................  1,000 (454)
Toxaphene.......................  X.................  1 (0.454)
Trichlorfon.....................  B.................  100 (45.4)
Trichloroethylene...............  B.................  100 (45.4)
Trichlorophenol.................  A.................  10 (4.54)
Triethanolamine                   C.................  1,000 (454)
 dodecylbenzenesulfonate.
Triethylamine...................  D.................  5,000 (2,270)
Trimethylamine..................  B.................  100 (45.4)
Uranyl acetate..................  B.................  100 (45.4)
Uranyl nitrate..................  B.................  100 (45.4)
Vanadium pentoxide..............  C.................  1,000 (454)
Vanadyl sulfate.................  C.................  1,000 (454)
Vinyl acetate...................  D.................  5,000 (2,270)
Vinylidene chloride.............  B.................  100 (45.4)
Xylene (mixed)..................  B.................  100 (45.4)
Xylenol.........................  C.................  1,000 (454)
Zinc acetate....................  C.................  1,000 (454)
Zinc ammonium chloride..........  C.................  1,000 (454)
Zinc borate.....................  C.................  1,000 (454)

[[Page 151]]

 
Zinc bromide....................  C.................  1,000 (454)
Zinc carbonate..................  C.................  1,000 (454)
Zinc chloride...................  C.................  1,000 (454)
Zinc cyanide....................  A.................  10 (4.54)
Zinc fluoride...................  C.................  1,000 (454)
Zinc formate....................  C.................  1,000 (454)
Zinc hydrosulfite...............  C.................  1,000 (454)
Zinc nitrate....................  C.................  1,000 (454)
Zinc phenolsulfonate............  D.................  5,000 (2,270)
Zinc phosphide..................  B.................  100 (45.4)
Zinc silicofluoride.............  D.................  5,000 (2,270)
Zinc sulfate....................  C.................  1,000 (454)
Zirconium nitrate...............  D.................  5,000 (2,270)
Zirconium potassium fluoride....  C.................  1,000 (454)
Zirconium sulfate...............  D.................  5,000 (2,270)
Zirconium tetrachloride.........  D.................  5,000 (2,270)
------------------------------------------------------------------------


[50 FR 13513, Apr. 4, 1985, as amended at 51 FR 34547, Sept. 29, 1986; 
54 FR 33482, Aug. 14, 1989; 58 FR 35327, June 30, 1993; 60 FR 30937, 
June 12, 1995]



                         Subpart B_Applicability



Sec. 117.11  General applicability.

    This regulation sets forth a determination of the reportable 
quantity for each substance designated as hazardous in 40 CFR part 116. 
The regulation applies to quantities of designated substances equal to 
or greater than the reportable quantities, when discharged into or upon 
the navigable waters of the United States, adjoining shorelines, into or 
upon the contiguous zone, or beyond the contiguous zone as provided in 
section 311(b)(3) of the Act, except to the extent that the owner or 
operator can show such that discharges are made:
    (a) In compliance with a permit issued under the Marine Protection, 
Research and Sanctuaries Act of 1972 (33 U.S.C. 1401 et seq.);
    (b) In compliance with approved water treatment plant operations as 
specified by local or State regulations pertaining to safe drinking 
water;
    (c) Pursuant to the label directions for application of a pesticide 
product registered under section 3 or section 24 of the Federal 
Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended (7 
U.S.C. 136 et seq.), or pursuant to the terms and conditions of an 
experimental use permit issued under section 5 of FIFRA, or pursuant to 
an exemption granted under section 18 of FIFRA;
    (d) In compliance with the regulations issued under section 3004 or 
with permit conditions issued pursuant to section 3005 of the Resource 
Conservation and Recovery Act (90 Stat. 2795; 42 U.S.C. 6901);
    (e) In compliance with instructions of the On-Scene Coordinator 
pursuant to 40 CFR part 1510 (the National Oil and Hazardous Substances 
Pollution Plan) or 33 CFR 153.10(e) (Pollution by Oil and Hazardous 
Substances) or in accordance with applicable removal regulations as 
required by section 311(j)(1)(A);
    (f) In compliance with a permit issued under Sec. 165.7 of Title 14 
of the State of California Administrative Code;
    (g) From a properly functioning inert gas system when used to 
provide inert gas to the cargo tanks of a vessel;
    (h) From a permitted source and are excluded by Sec. 117.12 of this 
regulation;
    (i) To a POTW and are specifically excluded or reserved in Sec. 
117.13; or
    (j) In compliance with a permit issued under section 404(a) of the 
Clean Water Act or when the discharges are exempt from such requirements 
by section 404(f) or 404(r) of the Act (33 U.S.C. 1344(a), (f), (r)).



Sec. 117.12  Applicability to discharges from facilities with NPDES permits.

    (a) This regulation does not apply to:

[[Page 152]]

    (1) Discharges in compliance with a permit under section 402 of this 
Act;
    (2) Discharges resulting from circumstances identified, reviewed and 
made a part of the public record with respect to a permit issued or 
modified under section 402 of this Act, and subject to a condition in 
such permit;
    (3) Continuous or anticipated intermittent discharges from a point 
source, identified in a permit or permit application under section 402 
of this Act, which are caused by events occurring within the scope of 
the relevant operating or treatment systems; or
    (b) A discharge is ``in compliance with a permit issued under 
section 402 of this Act'' if the permit contains an effluent limitation 
specifically applicable to the substance discharged or an effluent 
limitation applicable to another waste parameter which has been 
specifically identified in the permit as intended to limit such 
substance, and the discharge is in compliance with the effluent 
limitation.
    (c) A discharge results ``from circumstances identified, reviewed 
and made a part of the public record with respect to a permit issued or 
modified under section 402 of the Act, and subject to a condition in 
such permit,'' whether or not the discharge is in compliance with the 
permit, where:
    (1) The permit application, the permit, or another portion of the 
public record contains documents that specifically identify:
    (i) The substance and the amount of the substance; and
    (ii) The origin and source of the substance; and
    (iii) The treatment which is to be provided for the discharge either 
by:
    (A) An on-site treatment system separate from any treatment system 
treating the permittee's normal discharge; or
    (B) A treatment system designed to treat the permittee's normal 
discharge and which is additionally capable of treating the identified 
amount of the identified substance; or
    (C) Any combination of the above; and
    (2) The permit contains a requirement that the substance and amounts 
of the substance, as identified in Sec. 117.12(c)(1)(i) and Sec. 
117.12(c)(1)(ii) be treated pursuant to Sec. 117.12(c)(1)(iii) in the 
event of an on-site release; and
    (3) The treatment to be provided is in place.
    (d) A discharge is a ``continuous or anticipated intermittent 
discharge from a point source, identified in a permit or permit 
application under section 402 of this Act, and caused by events 
occurring within the scope of the relevant operating or treatment 
systems,'' whether or not the discharge is in compliance with the 
permit, if:
    (1) The hazardous substance is discharged from a point source for 
which a valid permit exists or for which a permit application has been 
submitted; and
    (2) The discharge of the hazardous substance results from:
    (i) The contamination of noncontact cooling water or storm water, 
provided that such cooling water or storm water is not contaminated by 
an on-site spill of a hazardous substance; or
    (ii) A continuous or anticipated intermittent discharge of process 
waste water, and the discharge originates within the manufacturing or 
treatment systems; or
    (iii) An upset or failure of a treatment system or of a process 
producing a continuous or anticipated intermittent discharge where the 
upset or failure results from a control problem, an operator error, a 
system failure or malfunction, an equipment or system startup or 
shutdown, an equipment wash, or a production schedule change, provided 
that such upset or failure is not caused by an on-site spill of a 
hazardous substance.

[44 FR 50776, Aug. 29, 1979, as amended at 44 FR 58910, Oct. 12, 1979]



Sec. 117.13  Applicability to discharges from publicly owned treatment works 

and their users.

    (a) [Reserved]
    (b) These regulations apply to all discharges of reportable 
quantities to a POTW, where the discharge originates from a mobile 
source, except where such source has contracted with, or otherwise 
received written permission from the owners or operators of the POTW to 
discharge that quantity, and the mobile source can show that prior

[[Page 153]]

to accepting the substance from an industrial discharger, the substance 
had been treated to comply with any effluent limitation under sections 
301, 302 or 306 or pretreatment standard under section 307 applicable to 
that facility.



Sec. 117.14  Demonstration projects.

    Notwithstanding any other provision of this part, the Administrator 
of the Environmental Protection Agency may, on a case-by-case basis, 
allow the discharge of designated hazardous substances in connection 
with research or demonstration projects relating to the prevention, 
control, or abatement of hazardous substance pollution. The 
Administrator will allow such a discharge only where he determines that 
the expected environmental benefit from such a discharge will outweigh 
the potential hazard associated with the discharge.



         Subpart C_Notice of Discharge of a Reportable Quantity



Sec. 117.21  Notice.

    Any person in charge of a vessel or an onshore or an offshore 
facility shall, as soon as he has knowledge of any discharge of a 
designated hazardous substance from such vessel or facility in 
quantities equal to or exceeding in any 24-hour period the reportable 
quantity determined by this part, immediately notify the appropriate 
agency of the United States Government of such discharge. Notice shall 
be given in accordance with such procedures as the Secretary of 
Transportation has set forth in 33 CFR 153.203. This provision applies 
to all discharges not specifically excluded or reserved by another 
section of these regulations.



Sec. 117.23  Liabilities for removal.

    In any case where a substance designated as hazardous in 40 CFR part 
116 is discharged from any vessel or onshore or offshore facility in a 
quantity equal to or exceeding the reportable quantity determined by 
this part, the owner, operator or person in charge will be liable, 
pursuant to section 311 (f) and (g) of the Act, to the United States 
Government for the actual costs incurred in the removal of such 
substance, subject only to the defenses and monetary limitations 
enumerated in section 311 (f) and (g) of the Act.

The Administrator may act to mitigate the damage to the public health or 
welfare caused by a discharge and the cost of such mitigation shall be 
considered a cost incurred under section 311(c) for the removal of that 
substance by the United States Government.



PART 121_STATE CERTIFICATION OF ACTIVITIES REQUIRING A FEDERAL LICENSE OR 

PERMIT--Table of Contents



                            Subpart A_General

Sec.
121.1 Definitions.
121.2 Contents of certification.
121.3 Contents of application.

            Subpart B_Determination of Effect on Other States

121.11 Copies of documents.
121.12 Supplemental information.
121.13 Review by Regional Administrator and notification.
121.14 Forwarding to affected State.
121.15 Hearings on objection of affected State.
121.16 Waiver.

              Subpart C_Certification by the Administrator

121.21 When Administrator certifies.
121.22 Applications.
121.23 Notice and hearing.
121.24 Certification.
121.25 Adoption of new water quality standards.
121.26 Inspection of facility or activity before operation.
121.27 Notification to licensing or permitting agency.
121.28 Termination of suspension.

                         Subpart D_Consultations

121.30 Review and advice.

    Authority: Sec. 21 (b) and (c), 84 Stat. 91 (33 U.S.C. 1171(b) 
(1970)); Reorganization Plan No. 3 of 1970.

    Source: 36 FR 22487, Nov. 25, 1971, unless otherwise noted. 
Redesignated at 37 FR 21441, Oct. 11, 1972, and further redesignated at 
44 FR 32899, June 7, 1979.

[[Page 154]]



                            Subpart A_General



Sec. 121.1  Definitions.

    As used in this part, the following terms shall have the meanings 
indicated below:
    (a) License or permit means any license or permit granted by an 
agency of the Federal Government to conduct any activity which may 
result in any discharge into the navigable waters of the United States.
    (b) Licensing or permitting agency means any agency of the Federal 
Government to which application is made for a license or permit.
    (c) Administrator means the Administrator, Environmental Protection 
Agency.
    (d) Regional Administrator means the Regional designee appointed by 
the Administrator, Environmental Protection Agency.
    (e) Certifying agency means the person or agency designated by the 
Governor of a State, by statute, or by other governmental act, to 
certify compliance with applicable water quality standards. If an 
interstate agency has sole authority to so certify for the area within 
its jurisdiction, such interstate agency shall be the certifying agency. 
Where a State agency and an interstate agency have concurrent authority 
to certify, the State agency shall be the certifying agency. Where water 
quality standards have been promulgated by the Administrator pursuant to 
section 10(c)(2) of the Act, or where no State or interstate agency has 
authority to certify, the Administrator shall be the certifying agency.
    (f) Act means the Federal Water Pollution Control Act, 33 U.S.C. 
1151 et seq.
    (g) Water quality standards means standards established pursuant to 
section 10(c) of the Act, and State-adopted water quality standards for 
navigable waters which are not interstate waters.



Sec. 121.2  Contents of certification.

    (a) A certification made by a certifying agency shall include the 
following:
    (1) The name and address of the applicant;
    (2) A statement that the certifying agency has either (i) examined 
the application made by the applicant to the licensing or permitting 
agency (specifically identifying the number or code affixed to such 
application) and bases its certification upon an evaluation of the 
information contained in such application which is relevant to water 
quality considerations, or (ii) examined other information furnished by 
the applicant sufficient to permit the certifying agency to make the 
statement described in paragraph (a)(3) of this section;
    (3) A statement that there is a reasonable assurance that the 
activity will be conducted in a manner which will not violate applicable 
water quality standards;
    (4) A statement of any conditions which the certifying agency deems 
necessary or desirable with respect to the discharge of the activity; 
and
    (5) Such other information as the certifying agency may determine to 
be appropriate.
    (b) The certifying agency may modify the certification in such 
manner as may be agreed upon by the certifying agency, the licensing or 
permitting agency, and the Regional Administrator.



Sec. 121.3  Contents of application.

    A licensing or permitting agency shall require an applicant for a 
license or permit to include in the form of application such information 
relating to water quality considerations as may be agreed upon by the 
licensing or permitting agency and the Administrator.



            Subpart B_Determination of Effect on Other States



Sec. 121.11  Copies of documents.

    (a) Upon receipt from an applicant of an application for a license 
or permit without an accompanying certification, the licensing or 
permitting agency shall either: (1) Forward one copy of the application 
to the appropriate certifying agency and two copies to the Regional 
Administrator, or (2) forward three copies of the application to the 
Regional Administrator, pursuant to an agreement between the licensing 
or permitting agency and the Administrator that the Regional 
Administrator will transmit a copy of the

[[Page 155]]

application to the appropriate certifying agency. Upon subsequent 
receipt from an applicant of a certification, the licensing or 
permitting agency shall forward a copy of such certification to the 
Regional Administrator, unless such certification shall have been made 
by the Regional Administrator pursuant to Sec. 121.24.
    (b) Upon receipt from an applicant of an application for a license 
or permit with an accompanying certification, the licensing or 
permitting agency shall forward two copies of the application and 
certification to the Regional Administrator.
    (c) Only those portions of the application which relate to water 
quality considerations shall be forwarded to the Regional Administrator.



Sec. 121.12  Supplemental information.

    If the documents forwarded to the Regional Administrator by the 
licensing or permitting agency pursuant to Sec. 121.11 do not contain 
sufficient information for the Regional Administrator to make the 
determination provided for in Sec. 121.13, the Regional Administrator 
may request, and the licensing or permitting agency shall obtain from 
the applicant and forward to the Regional Administrator, any 
supplemental information as may be required to make such determination.



Sec. 121.13  Review by Regional Administrator and notification.

    The Regional Administrator shall review the application, 
certification, and any supplemental information provided in accordance 
with Sec. Sec. 121.11 and 121.12 and if the Regional Administrator 
determines there is reason to believe that a discharge may affect the 
quality of the waters of any State or States other than the State in 
which the discharge originates, the Regional Administrator shall, no 
later than 30 days of the date of receipt of the application and 
certification from the licensing or permitting agency as provided in 
Sec. 121.11, so notify each affected State, the licensing or permitting 
agency, and the applicant.



Sec. 121.14  Forwarding to affected State.

    The Regional Administrator shall forward to each affected State a 
copy of the material provided in accordance with Sec. 121.11.



Sec. 121.15  Hearings on objection of affected State.

    When a licensing or permitting agency holds a public hearing on the 
objection of an affected State, notice of such objection, including the 
grounds for such objection, shall be forwarded to the Regional 
Administrator by the licensing or permitting agency no later than 30 
days prior to such hearing. The Regional Administrator shall at such 
hearing submit his evaluation with respect to such objection and his 
recommendations as to whether and under what conditions the license or 
permit should be issued.



Sec. 121.16  Waiver.

    The certification requirement with respect to an application for a 
license or permit shall be waived upon:
    (a) Written notification from the State or interstate agency 
concerned that it expressly waives its authority to act on a request for 
certification; or
    (b) Written notification from the licensing or permitting agency to 
the Regional Administrator of the failure of the State or interstate 
agency concerned to act on such request for certification within a 
reasonable period of time after receipt of such request, as determined 
by the licensing or permitting agency (which period shall generally be 
considered to be 6 months, but in any event shall not exceed 1 year).

In the event of a waiver hereunder, the Regional Administrator shall 
consider such waiver as a substitute for a certification, and as 
appropriate, shall conduct the review, provide the notices, and perform 
the other functions identified in Sec. Sec. 121.13, 121.14, and 121.15. 
The notices required by Sec. 121.13 shall be provided not later than 30 
days after the date of receipt by the Regional Administrator of either 
notification referred to herein.

[[Page 156]]



              Subpart C_Certification by the Administrator



Sec. 121.21  When Administrator certifies.

    Certification by the Administrator that the discharge resulting from 
an activity requiring a license or permit will not violate applicable 
water quality standards will be required where:
    (a) Standards have been promulgated, in whole or in part, by the 
Administrator pursuant to section 10(c)(2) of the Act: Provided, 
however, That the Administrator will certify compliance only with 
respect to those water quality standards promulgated by him; or
    (b) Water quality standards have been established, but no State or 
interstate agency has authority to give such a certification.



Sec. 121.22  Applications.

    An applicant for certification from the Administrator shall submit 
to the Regional Administrator a complete description of the discharge 
involved in the activity for which certification is sought, with a 
request for certification signed by the applicant. Such description 
shall include the following:
    (a) The name and address of the applicant;
    (b) A description of the facility or activity, and of any discharge 
into navigable waters which may result from the conduct of any activity 
including, but not limited to, the construction or operation of the 
facility, including the biological, chemical, thermal, and other 
characteristics of the discharge, and the location or locations at which 
such discharge may enter navigable waters;
    (c) A description of the function and operation of equipment or 
facilities to treat wastes or other effluents which may be discharged, 
including specification of the degree of treatment expected to be 
attained;
    (d) The date or dates on which the activity will begin and end, if 
known, and the date or dates on which the discharge will take place;
    (e) A description of the methods and means being used or proposed to 
monitor the quality and characteristics of the discharge and the 
operation of equipment or facilities employed in the treatment or 
control of wastes or other effluents.



Sec. 121.23  Notice and hearing.

    The Regional Administrator will provide public notice of each 
request for certification by mailing to State, County, and municipal 
authorities, heads of State agencies responsible for water quality 
improvement, and other parties known to be interested in the matter, 
including adjacent property owners and conservation organizations, or 
may provide such notice in a newspaper of general circulation in the 
area in which the activity is proposed to be conducted if the Regional 
Administrator deems mailed notice to be impracticable. Interested 
parties shall be provided an opportunity to comment on such request in 
such manner as the Regional Administrator deems appropriate. All 
interested and affected parties will be given reasonable opportunity to 
present evidence and testimony at a public hearing on the question 
whether to grant or deny certification if the Regional Administrator 
determines that such a hearing is necessary or appropriate.



Sec. 121.24  Certification.

    If, after considering the complete description, the record of a 
hearing, if any, held pursuant to Sec. 121.23, and such other 
information and data as the Regional Administrator deems relevant, the 
Regional Administrator determines that there is reasonable assurance 
that the proposed activity will not result in a violation of applicable 
water quality standards, he shall so certify. If the Regional 
Administrator determines that no water quality standards are applicable 
to the waters which might be affected by the proposed activity, he shall 
so notify the applicant and the licensing or permitting agency in 
writing and shall provide the licensing or permitting agency with 
advice, suggestions, and recommendations with respect to conditions to 
be incorporated in any license or permit to achieve compliance with the 
purpose of this Act. In such case, no certification shall be required.

[[Page 157]]



Sec. 121.25  Adoption of new water quality standards.

    (a) In any case where:
    (1) A license or permit was issued without certification due to the 
absence of applicable water quality standards; and
    (2) Water quality standards applicable to the waters into which the 
licensed or permitted activity may discharge are subsequently 
established; and
    (3) The Administrator is the certifying agency because:
    (i) No State or interstate agency has authority to certify; or
    (ii) Such new standards were promulgated by the Administrator 
pursuant to section 10(c)(2) of the Act; and
    (4) The Regional Administrator determines that such uncertified 
activity is violating water quality standards;

Then the Regional Administrator shall notify the licensee or permittee 
of such violation, including his recommendations as to actions necessary 
for compliance. If the licensee or permittee fails within 6 months of 
the date of such notice to take action which in the opinion of the 
Regional Administrator will result in compliance with applicable water 
quality standards, the Regional Administrator shall notify the licensing 
or permitting agency that the licensee or permittee has failed, after 
reasonable notice, to comply with such standards and that suspension of 
the applicable license or permit is required by section 21(b)(9)(B) of 
the Act.
    (b) Where a license or permit is suspended pursuant to paragraph (a) 
of this section, and where the licensee or permittee subsequently takes 
action which in the Regional Administrator's opinion will result in 
compliance with applicable water quality standards, the Regional 
Administrator shall then notify the licensing or permitting agency that 
there is reasonable assurance that the licensed or permitted activity 
will comply with applicable water quality standards.



Sec. 121.26  Inspection of facility or activity before operation.

    Where any facility or activity has received certification pursuant 
to Sec. 121.24 in connection with the issuance of a license or permit 
for construction, and where such facility or activity is not required to 
obtain an operating license or permit, the Regional Administrator or his 
representative, prior to the initial operation of such facility or 
activity, shall be afforded the opportunity to inspect such facility or 
activity for the purpose of determining if the manner in which such 
facility or activity will be operated or conducted will violate 
applicable water quality standards.



Sec. 121.27  Notification to licensing or permitting agency.

    If the Regional Administrator, after an inspection pursuant to Sec. 
121.26, determines that operation of the proposed facility or activity 
will violate applicable water quality standards, he shall so notify the 
applicant and the licensing or permitting agency, including his 
recommendations as to remedial measures necessary to bring the operation 
of the proposed facility into compliance with such standards.



Sec. 121.28  Termination of suspension.

    Where a licensing or permitting agency, following a public hearing, 
suspends a license or permit after receiving the Regional 
Administrator's notice and recommendation pursuant to Sec. 121.27, the 
applicant may submit evidence to the Regional Administrator that the 
facility or activity or the operation or conduct thereof has been 
modified so as not to violate water quality standards. If the Regional 
Administrator determines that water quality standards will not be 
violated, he shall so notify the licensing or permitting agency.



                         Subpart D_Consultations



Sec. 121.30  Review and advice.

    The Regional Administrator may, and upon request shall, provide 
licensing and permitting agencies with determinations, definitions and 
interpretations with respect to the meaning and content of water quality 
standards where they have been federally approved under section 10 of 
the Act, and findings with respect to the application of all applicable 
water quality standards in particular cases and in specific 
circumstances relative to an activity

[[Page 158]]

for which a license or permit is sought. The Regional Administrator may, 
and upon request shall, also advise licensing and permitting agencies as 
to the status of compliance by dischargers with the conditions and 
requirements of applicable water quality standards. In cases where an 
activity for which a license or permit is sought will affect water 
quality, but for which there are no applicable water quality standards, 
the Regional Administrator may advise licensing or permitting agencies 
with respect to conditions of such license or permit to achieve 
compliance with the purpose of the Act.



PART 122_EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT DISCHARGE 

ELIMINATION SYSTEM--Table of Contents



         Subpart A_Definitions and General Program Requirements

Sec.
122.1 Purpose and scope.
122.2 Definitions.
122.3 Exclusions.
122.4 Prohibitions (applicable to State NPDES Programs, see Sec. 
          123.25).
122.5 Effect of a permit.
122.6 Continuation of expiring permits.
122.7 Confidentiality of information.

   Subpart B_Permit Application and Special NPDES Program Requirements

122.21 Application for a permit (applicable to State programs, see Sec. 
          123.25).
122.22 Signatories to permit applications and reports (applicable to 
          State programs, see Sec. 123.25).
122.23 Concentrated animal feeding operations (applicable to State NPDES 
          programs, see Sec. 123.25).
122.24 Concentrated aquatic animal production facilities (applicable to 
          State NPDES programs, see Sec. 123.25).
122.25 Aquaculture projects (applicable to State NPDES programs, see 
          Sec. 123.25).
122.26 Storm water discharges (applicable to State NPDES programs, see 
          Sec. 123.25).
122.27 Silvicultural activities (applicable to State NPDES programs, see 
          Sec. 123.25).
122.28 General permits (applicable to State NPDES programs, see Sec. 
          123.25).
122.29 New sources and new dischargers.
122.30 What are the objectives of the storm water regulations for small 
          MS4s?
122.31 As a Tribe, what is my role under the NPDES storm water program?
122.32 As an operator of a small MS4, am I regulated under the NPDES 
          storm water program?
122.33 If I am an operator of a regulated small MS4, how do I apply for 
          an NPDES permit and when do I have to apply?
122.34 As an operator of a regulated small MS4, what will my NPDES MS4 
          storm water permit require?
122.35 As an operator of a regulated small MS4, may I share the 
          responsibility to implement the minimum control measures with 
          other entities?
122.36 As an operator of a regulated small MS4, what happens if I don't 
          comply with the application or permit requirements in 
          Sec. Sec. 122.33 through 122.35?
122.37 Will the small MS4 storm water program regulations at Sec. Sec. 
          122.32 through 122.36 and Sec. 123.35 of this chapter change 
          in the future?

                       Subpart C_Permit Conditions

122.41 Conditions applicable to all permits (applicable to State 
          programs, see Sec. 123.25).
122.42 Additional conditions applicable to specified categories of NPDES 
          permits (applicable to State NPDES programs, see Sec. 
          123.25).
122.43 Establishing permit conditions (applicable to State programs, see 
          Sec. 123.25).
122.44 Establishing limitations, standards and other permit conditions 
          (applicable to State NPDES programs, see Sec. 123.25).
122.45 Calculating NPDES permit conditions (applicable to State NPDES 
          programs, see Sec. 123.25).
122.46 Duration of permits (applicable to State programs, see Sec. 
          123.25).
122.47 Schedules of compliance.
122.48 Requirements for recording and reporting of monitoring results 
          (applicable to State programs, see Sec. 123.25).
122.49 Considerations under Federal law.
122.50 Disposal of pollutants into wells, into publicly owned treatment 
          works or by land application (applicable to State NPDES 
          programs, see Sec. 123.25).

    Subpart D_Transfer, Modification, Revocation and Reissuance, and 
                         Termination of Permits

122.61 Transfer of permits (applicable to State programs, see Sec. 
          123.25).
122.62 Modification or revocation and reissuance of permits (applicable 
          to State programs, see Sec. 123.25).
122.63 Minor modifications of permits.
122.64 Termination of permits (applicable to State programs, see Sec. 
          123.25).

Appendix A to Part 122--NPDES Primary Industry Categories
Appendix B to Part 122 [Reserved]

[[Page 159]]

Appendix C to Part 122--Criteria for Determining a Concentrated Aquatic 
          Animal Production Facility (Sec. 122.24)
Appendix D to Part 122--NPDES Permit Application Testing Requirements 
          (Sec. 122.21)
Appendix E to Part 122--Rainfall Zones of the United States
Appendix F to Part 122--Incorporated Places With Populations Greater 
          Than 250,000 According to the 1990 Decennial Census by the 
          Bureau of the Census
Appendix G to Part 122--Incorporated Places With Populations Greater 
          Than 100,000 But Less Than 250,000 According to the 1990 
          Decennial Census by the Bureau of the Census
Appendix H to Part 122--Counties with Unincorporated Urbanized Areas 
          With a Population of 250,000 or More According to the 1990 
          Decennial Census by the Bureau of the Census
Appendix I to Part 122--Counties With Unincorporated Urbanized Areas 
          Greater Than 100,000, But Less Than 250,000 According to the 
          1990 Decennial Census by the Bureau of the Census
Appendix J to Part 122--NPDES Permit Testing Requirements for Publicly 
          Owned Treatment Works (Sec. 122.21(j))

    Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.

    Source: 48 FR 14153, Apr. 1, 1983, unless otherwise noted.



         Subpart A_Definitions and General Program Requirements



Sec. 122.1  Purpose and scope.

    (a) Coverage. (1) The regulatory provisions contained in this part 
and parts 123, and 124 of this chapter implement the National Pollutant 
Discharge Elimination System (NPDES) Program under sections 318, 402, 
and 405 of the Clean Water Act (CWA) (Public Law 92-500, as amended, 33 
U.S.C. 1251 et seq.)
    (2) These provisions cover basic EPA permitting requirements (this 
part 122), what a State must do to obtain approval to operate its 
program in lieu of a Federal program and minimum requirements for 
administering the approved State program (part 123 of this chapter), and 
procedures for EPA processing of permit applications and appeals (part 
124 of this chapter).
    (3) These provisions also establish the requirements for public 
participation in EPA and State permit issuance and enforcement and 
related variance proceedings, and in the approval of State NPDES 
programs. These provisions carry out the purposes of the public 
participation requirements of part 25 of this chapter, and supersede the 
requirements of that part as they apply to actions covered under this 
part and parts 123, and 124 of this chapter.
    (4) Regulatory provisions in Parts 125, 129, 133, 136 of this 
chapter and 40 CFR subchapter N and subchapter O of this chapter also 
implement the NPDES permit program.
    (5) Certain requirements set forth in parts 122 and 124 of this 
chapter are made applicable to approved State programs by reference in 
part 123 of this chapter. These references are set forth in Sec. 123.25 
of this chapter. If a section or paragraph of part 122 or 124 of this 
chapter is applicable to States, through reference in Sec. 123.25 of 
this chapter, that fact is signaled by the following words at the end of 
the section or paragraph heading: (Applicable to State programs, see 
Sec. 123.25 of this chapter). If these words are absent, the section 
(or paragraph) applies only to EPA administered permits. Nothing in this 
part and parts 123, or 124 of this chapter precludes more stringent 
State regulation of any activity covered by the regulations in 40 CFR 
parts 122, 123, and 124, whether or not under an approved State program.
    (b) Scope of the NPDES permit requirement. (1) The NPDES program 
requires permits for the discharge of ``pollutants'' from any ``point 
source'' into ``waters of the United States.'' The terms ``pollutant'', 
``point source'' and ``waters of the United States'' are defined at 
Sec. 122.2.
    (2) The permit program established under this part also applies to 
owners or operators of any treatment works treating domestic sewage, 
whether or not the treatment works is otherwise required to obtain an 
NPDES permit, unless all requirements implementing section 405(d) of the 
CWA applicable to the treatment works treating domestic sewage are 
included in a permit issued under the appropriate provisions of subtitle 
C of the Solid Waste Disposal Act, Part C of the Safe Drinking Water 
Act, the Marine Protection, Research, and Sanctuaries Act of 1972, or 
the Clean Air Act, or under State permit

[[Page 160]]

programs approved by the Administrator as adequate to assure compliance 
with section 405 of the CWA.
    (3) The Regional Administrator may designate any person subject to 
the standards for sewage sludge use and disposal as a ``treatment works 
treating domestic sewage'' as defined in Sec. 122.2, where the Regional 
Administrator finds that a permit is necessary to protect public health 
and the environment from the adverse effects of sewage sludge or to 
ensure compliance with the technical standards for sludge use and 
disposal developed under CWA section 405(d). Any person designated as a 
``treatment works treating domestic sewage'' shall submit an application 
for a permit under Sec. 122.21 within 180 days of being notified by the 
Regional Administrator that a permit is required. The Regional 
Administrator's decision to designate a person as a ``treatment works 
treating domestic sewage'' under this paragraph shall be stated in the 
fact sheet or statement of basis for the permit.

    [Note to Sec. 122.1: Information concerning the NPDES program and 
its regulations can be obtained by contacting the Water Permits 
Division(4203), Office of Wastewater Management, U.S.E.P.A., Ariel Rios 
Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 at (202) 
260-9545 and by visiting the homepage at http://www.epa.gov/owm/]

[65 FR 30904, May 15, 2000, as amended at 72 FR 11211, Mar. 12, 2007]



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,'' 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

[[Page 161]]

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. 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.

[[Page 162]]

    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 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,

[[Page 163]]

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 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

[[Page 164]]

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.
    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).

[[Page 165]]

    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. 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

[[Page 166]]

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 . . .'' 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]



Sec. 122.3  Exclusions.

    The following discharges do not require NPDES permits:
    (a) Any discharge of sewage from vessels, effluent from properly 
functioning marine engines, laundry, shower, and galley sink wastes, or 
any other discharge incidental to the normal operation of a vessel. This 
exclusion does not apply to rubbish, trash, garbage, or other such 
materials discharged overboard; nor to other discharges when the vessel 
is operating in a capacity other than as a means of transportation such 
as when used as an energy or mining facility, a storage facility or a 
seafood processing facility, or when secured to a storage facility or a 
seafood processing facility, or when secured to the bed of the ocean, 
contiguous zone or waters of the United States for the purpose of 
mineral or oil exploration or development.
    (b) Discharges of dredged or fill material into waters of the United 
States which are regulated under section 404 of CWA.
    (c) The introduction of sewage, industrial wastes or other 
pollutants into publicly owned treatment works by indirect dischargers. 
Plans or agreements to switch to this method of disposal in the future 
do not relieve dischargers of the obligation to have and comply with 
permits until all discharges of pollutants to waters of the United 
States are eliminated. (See also Sec. 122.47(b)). This

[[Page 167]]

exclusion does not apply to the introduction of pollutants to privately 
owned treatment works or to other discharges through pipes, sewers, or 
other conveyances owned by a State, municipality, or other party not 
leading to treatment works.
    (d) Any discharge in compliance with the instructions of an On-Scene 
Coordinator pursuant to 40 CFR part 300 (The National Oil and Hazardous 
Substances Pollution Contingency Plan) or 33 CFR 153.10(e) (Pollution by 
Oil and Hazardous Substances).
    (e) Any introduction of pollutants from non point-source 
agricultural and silvicultural activities, including storm water runoff 
from orchards, cultivated crops, pastures, range lands, and forest 
lands, but not discharges from concentrated animal feeding operations as 
defined in Sec. 122.23, discharges from concentrated aquatic animal 
production facilities as defined in Sec. 122.24, discharges to 
aquaculture projects as defined in Sec. 122.25, and discharges from 
silvicultural point sources as defined in Sec. 122.27.
    (f) Return flows from irrigated agriculture.
    (g) Discharges into a privately owned treatment works, except as the 
Director may otherwise require under Sec. 122.44(m).
    (h) The application of pesticides consistent with all relevant 
requirements under FIFRA (i.e., those relevant to protecting water 
quality), in the following two circumstances:
    (1) The application of pesticides directly to waters of the United 
States in order to control pests. Examples of such applications include 
applications to control mosquito larvae, aquatic weeds, or other pests 
that are present in waters of the United States.
    (2) The application of pesticides to control pests that are present 
over waters of the United States, including near such waters, where a 
portion of the pesticides will unavoidably be deposited to waters of the 
United States in order to target the pests effectively; for example, 
when insecticides are aerially applied to a forest canopy where waters 
of the United States may be present below the canopy or when pesticides 
are applied over or near water for control of adult mosquitoes or other 
pests.
    (i) Discharges from a water transfer. Water transfer means an 
activity that conveys or connects waters of the United States without 
subjecting the transferred water to intervening industrial, municipal, 
or commercial use. This exclusion does not apply to pollutants 
introduced by the water transfer activity itself to the water being 
transferred.

[48 FR 14153, Apr. 1, 1983, as amended at 54 FR 254, 258, Jan. 4, 1989; 
71 FR 68492, Nov. 27, 2006; 73 FR 33708, June 13, 2008]



Sec. 122.4  Prohibitions (applicable to State NPDES programs, see Sec. 

123.25).

    No permit may be issued:
    (a) When the conditions of the permit do not provide for compliance 
with the applicable requirements of CWA, or regulations promulgated 
under CWA;
    (b) When the applicant is required to obtain a State or other 
appropriate certification under section 401 of CWA and Sec. 124.53 and 
that certification has not been obtained or waived;
    (c) By the State Director where the Regional Administrator has 
objected to issuance of the permit under Sec. 123.44;
    (d) When the imposition of conditions cannot ensure compliance with 
the applicable water quality requirements of all affected States;
    (e) When, in the judgment of the Secretary, anchorage and navigation 
in or on any of the waters of the United States would be substantially 
impaired by the discharge;
    (f) For the discharge of any radiological, chemical, or biological 
warfare agent or high-level radioactive waste;
    (g) For any discharge inconsistent with a plan or plan amendment 
approved under section 208(b) of CWA;
    (h) For any discharge to the territorial sea, the waters of the 
contiguous zone, or the oceans in the following circumstances:
    (1) Before the promulgation of guidelines under section 403(c) of 
CWA (for determining degradation of the waters of the territorial seas, 
the contiguous zone, and the oceans) unless the Director determines 
permit issuance to be in the public interest; or

[[Page 168]]

    (2) After promulgation of guidelines under section 403(c) of CWA, 
when insufficient information exists to make a reasonable judgment 
whether the discharge complies with them.
    (i) To a new source or a new discharger, if the discharge from its 
construction or operation will cause or contribute to the violation of 
water quality standards. The owner or operator of a new source or new 
discharger proposing to discharge into a water segment which does not 
meet applicable water quality standards or is not expected to meet those 
standards even after the application of the effluent limitations 
required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for which 
the State or interstate agency has performed a pollutants load 
allocation for the pollutant to be discharged, must demonstrate, before 
the close of the public comment period, that:
    (1) There are sufficient remaining pollutant load allocations to 
allow for the discharge; and
    (2) The existing dischargers into that segment are subject to 
compliance schedules designed to bring the segment into compliance with 
applicable water quality standards. The Director may waive the 
submission of information by the new source or new discharger required 
by paragraph (i) of this section if the Director determines that the 
Director already has adequate information to evaluate the request. An 
explanation of the development of limitations to meet the criteria of 
this paragraph (i)(2) is to be included in the fact sheet to the permit 
under Sec. 124.56(b)(1) of this chapter.

[48 FR 14153, Apr. 1, 1983, as amended at 50 FR 6940, Feb. 19, 1985; 65 
FR 30905, May 15, 2000]



Sec. 122.5  Effect of a permit.

    (a) Applicable to State programs, see Sec. 123.25. (1) Except for 
any toxic effluent standards and prohibitions imposed under section 307 
of the CWA and ``standards for sewage sludge use or disposal'' under 
405(d) of the CWA, compliance with a permit during its term constitutes 
compliance, for purposes of enforcement, with sections 301, 302, 306, 
307, 318, 403, and 405 (a)-(b) of CWA. However, a permit may be 
modified, revoked and reissued, or terminated during its term for cause 
as set forth in Sec. Sec. 122.62 and 122.64.
    (2) Compliance with a permit condition which implements a particular 
``standard for sewage sludge use or disposal'' shall be an affirmative 
defense in any enforcement action brought for a violation of that 
``standard for sewage sludge use or disposal'' pursuant to sections 
405(e) and 309 of the CWA.
    (b) Applicable to State programs, See Sec. 123.25. The issuance of 
a permit does not convey any property rights of any sort, or any 
exclusive privilege.
    (c) The issuance of a permit does not authorize any injury to 
persons or property or invasion of other private rights, or any 
infringement of State or local law or regulations.

[48 FR 14153, Apr. 1, 1983, as amended at 54 FR 18782, May 2, 1989]



Sec. 122.6  Continuation of expiring permits.

    (a) EPA permits. When EPA is the permit-issuing authority, the 
conditions of an expired permit continue in force under 5 U.S.C. 558(c) 
until the effective date of a new permit (see Sec. 124.15) if:
    (1) The permittee has submitted a timely application under Sec. 
122.21 which is a complete (under Sec. 122.21(e)) application for a new 
permit; and
    (2) The Regional Administrator, through no fault of the permittee 
does not issue a new permit with an effective date under Sec. 124.15 on 
or before the expiration date of the previous permit (for example, when 
issuance is impracticable due to time or resource constraints).
    (b) Effect. Permits continued under this section remain fully 
effective and enforceable.
    (c) Enforcement. When the permittee is not in compliance with the 
conditions of the expiring or expired permit the Regional Administrator 
may choose to do any or all of the following:
    (1) Initiate enforcement action based upon the permit which has been 
continued;
    (2) Issue a notice of intent to deny the new permit under Sec. 
124.6. If the permit is denied, the owner or operator would then be 
required to cease the activities authorized by the continued

[[Page 169]]

permit or be subject to enforcement action for operating without a 
permit;
    (3) Issue a new permit under part 124 with appropriate conditions; 
or
    (4) Take other actions authorized by these regulations.
    (d) State continuation. (1) An EPA-issued permit does not continue 
in force beyond its expiration date under Federal law if at that time a 
State is the permitting authority. States authorized to administer the 
NPDES program may continue either EPA or State-issued permits until the 
effective date of the new permits, if State law allows. Otherwise, the 
facility or activity is operating without a permit from the time of 
expiration of the old permit to the effective date of the State-issued 
new permit.

[48 FR 14153, Apr. 1, 1983, as amended at 50 FR 6940, Feb. 19, 1985]



Sec. 122.7  Confidentiality of information.

    (a) In accordance with 40 CFR part 2, any information submitted to 
EPA pursuant to these regulations may be claimed as confidential by the 
submitter. Any such claim must be asserted at the time of submission in 
the manner prescribed on the application form or instructions or, in the 
case of other submissions, by stamping the words ``confidential business 
information'' on each page containing such information. If no claim is 
made at the time of submission, EPA may make the information available 
to the public without further notice. If a claim is asserted, the 
information will be treated in accordance with the procedures in 40 CFR 
part 2 (Public Information).
    (b) Applicable to State programs, see Sec. 123.25. Claims of 
confidentiality for the following information will be denied:
    (1) The name and address of any permit applicant or permittee;
    (2) Permit applications, permits, and effluent data.
    (c) Applicable to State programs, see Sec. 123.25. Information 
required by NPDES application forms provided by the Director under Sec. 
122.21 may not be claimed confidential. This includes information 
submitted on the forms themselves and any attachments used to supply 
information required by the forms.



   Subpart B_Permit Application and Special NPDES Program Requirements



Sec. 122.21  Application for a permit (applicable to State programs, see Sec. 

123.25).

    (a) Duty to apply. (1) Any person who discharges or proposes to 
discharge pollutants or who owns or operates a ``sludge-only facility'' 
whose sewage sludge use or disposal practice is regulated by part 503 of 
this chapter, and who does not have an effective permit, except persons 
covered by general permits under Sec. 122.28, excluded under Sec. 
122.3, or a user of a privately owned treatment works unless the 
Director requires otherwise under Sec. 122.44(m), must submit a 
complete application to the Director in accordance with this section and 
part 124 of this chapter. The requirements for concentrated animal 
feeding operations are described in Sec. 122.23(d).
    (2) Application Forms: (i) All applicants for EPA-issued permits 
must submit applications on EPA permit application forms. More than one 
application form may be required from a facility depending on the number 
and types of discharges or outfalls found there. Application forms may 
be obtained by contacting the EPA water resource center at (202) 260-
7786 or Water Resource Center, U.S. EPA, Mail Code 4100, 1200 
Pennsylvania Ave., NW., Washington, DC 20460 or at the EPA Internet site 
www.epa.gov/owm/npdes.htm. Applications for EPA-issued permits must be 
submitted as follows:
    (A) All applicants, other than POTWs and TWTDS, must submit Form 1.
    (B) Applicants for new and existing POTWs must submit the 
information contained in paragraph (j) of this section using Form 2A or 
other form provided by the director.
    (C) Applicants for concentrated animal feeding operations or aquatic 
animal production facilities must submit Form 2B.
    (D) Applicants for existing industrial facilities (including 
manufacturing facilities, commercial facilities, mining activities, and 
silvicultural activities), must submit Form 2C.

[[Page 170]]

    (E) Applicants for new industrial facilities that discharge process 
wastewater must submit Form 2D.
    (F) Applicants for new and existing industrial facilities that 
discharge only nonprocess wastewater must submit Form 2E.
    (G) Applicants for new and existing facilities whose discharge is 
composed entirely of storm water associated with industrial activity 
must submit Form 2F, unless exempted by Sec. 122.26(c)(1)(ii). If the 
discharge is composed of storm water and non-storm water, the applicant 
must also submit, Forms 2C, 2D, and/or 2E, as appropriate (in addition 
to Form 2F).
    (H) Applicants for new and existing TWTDS, subject to paragraph 
(c)(2)(i) of this section must submit the application information 
required by paragraph (q) of this section, using Form 2S or other form 
provided by the director.
    (ii) The application information required by paragraph (a)(2)(i) of 
this section may be electronically submitted if such method of submittal 
is approved by EPA or the Director.
    (iii) Applicants can obtain copies of these forms by contacting the 
Water Management Divisions (or equivalent division which contains the 
NPDES permitting function) of the EPA Regional Offices. The Regional 
Offices' addresses can be found at Sec. 1.7 of this chapter.
    (iv) Applicants for State-issued permits must use State forms which 
must require at a minimum the information listed in the appropriate 
paragraphs of this section.
    (b) Who applies? When a facility or activity is owned by one person 
but is operated by another person, it is the operator's duty to obtain a 
permit.
    (c) Time to apply. (1) Any person proposing a new discharge, shall 
submit an application at least 180 days before the date on which the 
discharge is to commence, unless permission for a later date has been 
granted by the Director. Facilities proposing a new discharge of storm 
water associated with industrial activity shall submit an application 
180 days before that facility commences industrial activity which may 
result in a discharge of storm water associated with that industrial 
activity. Facilities described under Sec. 122.26(b)(14)(x) or 
(b)(15)(i) shall submit applications at least 90 days before the date on 
which construction is to commence. Different submittal dates may be 
required under the terms of applicable general permits. Persons 
proposing a new discharge are encouraged to submit their applications 
well in advance of the 90 or 180 day requirements to avoid delay. See 
also paragraph (k) of this section and Sec. 122.26(c)(1)(i)(G) and 
(c)(1)(ii).
    (2) Permits under section 405(f) of CWA. All TWTDS whose sewage 
sludge use or disposal practices are regulated by part 503 of this 
chapter must submit permit applications according to the applicable 
schedule in paragraphs (c)(2)(i) or (ii) of this section.
    (i) A TWTDS with a currently effective NPDES permit must submit a 
permit application at the time of its next NPDES permit renewal 
application. Such information must be submitted in accordance with 
paragraph (d) of this section.
    (ii) Any other TWTDS not addressed under paragraph (c)(2)(i) of this 
section must submit the information listed in paragraphs (c)(2)(ii)(A) 
through (E) of this section to the Director within 1 year after 
publication of a standard applicable to its sewage sludge use or 
disposal practice(s), using Form 2S or another form provided by the 
Director. The Director will determine when such TWTDS must submit a full 
permit application.
    (A) The TWTDS's name, mailing address, location, and status as 
federal, State, private, public or other entity;
    (B) The applicant's name, address, telephone number, and ownership 
status;
    (C) A description of the sewage sludge use or disposal practices. 
Unless the sewage sludge meets the requirements of paragraph (q)(8)(iv) 
of this section, the description must include the name and address of 
any facility where sewage sludge is sent for treatment or disposal, and 
the location of any land application sites;
    (D) Annual amount of sewage sludge generated, treated, used or 
disposed (estimated dry weight basis); and
    (E) The most recent data the TWTDS may have on the quality of the 
sewage sludge.

[[Page 171]]

    (iii) Notwithstanding paragraphs (c)(2)(i) or (ii) of this section, 
the Director may require permit applications from any TWTDS at any time 
if the Director determines that a permit is necessary to protect public 
health and the environment from any potential adverse effects that may 
occur from toxic pollutants in sewage sludge.
    (iv) Any TWTDS that commences operations after promulgation of an 
applicable ``standard for sewage sludge use or disposal'' must submit an 
application to the Director at least 180 days prior to the date proposed 
for commencing operations.
    (d) Duty to reapply. (1) Any POTW with a currently effective permit 
shall submit a new application at least 180 days before the expiration 
date of the existing permit, unless permission for a later date has been 
granted by the Director. (The Director shall not grant permission for 
applications to be submitted later than the expiration date of the 
existing permit.)
    (2) All other permittees with currently effective permits shall 
submit a new application 180 days before the existing permit expires, 
except that:
    (i) The Regional Administrator may grant permission to submit an 
application later than the deadline for submission otherwise applicable, 
but no later than the permit expiration date; and
    (3) [Reserved]
    (e) Completeness. (1) The Director shall not issue a permit before 
receiving a complete application for a permit except for NPDES general 
permits. An application for a permit is complete when the Director 
receives an application form and any supplemental information which are 
completed to his or her satisfaction. The completeness of any 
application for a permit shall be judged independently of the status of 
any other permit application or permit for the same facility or 
activity. For EPA administered NPDES programs, an application which is 
reviewed under Sec. 124.3 of this chapter is complete when the Director 
receives either a complete application or the information listed in a 
notice of deficiency.
    (2) A permit application shall not be considered complete if a 
permitting authority has waived application requirements under 
paragraphs (j) or (q) of this section and EPA has disapproved the waiver 
application. If a waiver request has been submitted to EPA more than 210 
days prior to permit expiration and EPA has not disapproved the waiver 
application 181 days prior to permit expiration, the permit application 
lacking the information subject to the waiver application shall be 
considered complete.
    (f) Information requirements. All applicants for NPDES permits, 
other than POTWs and other TWTDS, must provide the following information 
to the Director, using the application form provided by the Director. 
Additional information required of applicants is set forth in paragraphs 
(g) through (k) of this section.
    (1) The activities conducted by the applicant which require it to 
obtain an NPDES permit.
    (2) Name, mailing address, and location of the facility for which 
the application is submitted.
    (3) Up to four SIC codes which best reflect the principal products 
or services provided by the facility.
    (4) The operator's name, address, telephone number, ownership 
status, and status as Federal, State, private, public, or other entity.
    (5) Whether the facility is located on Indian lands.
    (6) A listing of all permits or construction approvals received or 
applied for under any of the following programs:
    (i) Hazardous Waste Management program under RCRA.
    (ii) UIC program under SDWA.
    (iii) NPDES program under CWA.
    (iv) Prevention of Significant Deterioration (PSD) program under the 
Clean Air Act.
    (v) Nonattainment program under the Clean Air Act.
    (vi) National Emission Standards for Hazardous Pollutants (NESHAPS) 
preconstruction approval under the Clean Air Act.
    (vii) Ocean dumping permits under the Marine Protection Research and 
Sanctuaries Act.
    (viii) Dredge or fill permits under section 404 of CWA.
    (ix) Other relevant environmental permits, including State permits.

[[Page 172]]

    (7) A topographic map (or other map if a topographic map is 
unavailable) extending one mile beyond the property boundaries of the 
source, depicting the facility and each of its intake and discharge 
structures; each of its hazardous waste treatment, storage, or disposal 
facilities; each well where fluids from the facility are injected 
underground; and those wells, springs, other surface water bodies, and 
drinking water wells listed in public records or otherwise known to the 
applicant in the map area.
    (8) A brief description of the nature of the business.
    (g) Application requirements for existing manufacturing, commercial, 
mining, and silvicultural dischargers. Existing manufacturing, 
commercial mining, and silvicultural dischargers applying for NPDES 
permits, except for those facilities subject to the requirements of 
Sec. 122.21(h), shall provide the following information to the 
Director, using application forms provided by the Director.
    (1) Outfall location. The latitude and longitude to the nearest 15 
seconds and the name of the receiving water.
    (2) Line drawing. A line drawing of the water flow through the 
facility with a water balance, showing operations contributing 
wastewater to the effluent and treatment units. Similar processes, 
operations, or production areas may be indicated as a single unit, 
labeled to correspond to the more detailed identification under 
paragraph (g)(3) of this section. The water balance must show 
approximate average flows at intake and discharge points and between 
units, including treatment units. If a water balance cannot be 
determined (for example, for certain mining activities), the applicant 
may provide instead a pictorial description of the nature and amount of 
any sources of water and any collection and treatment measures.
    (3) Average flows and treatment. A narrative identification of each 
type of process, operation, or production area which contributes 
wastewater to the effluent for each outfall, including process 
wastewater, cooling water, and stormwater runoff; the average flow which 
each process contributes; and a description of the treatment the 
wastewater receives, including the ultimate disposal of any solid or 
fluid wastes other than by discharge. Processes, operations, or 
production areas may be described in general terms (for example, ``dye-
making reactor'', ``distillation tower''). For a privately owned 
treatment works, this information shall include the identity of each 
user of the treatment works. The average flow of point sources composed 
of storm water may be estimated. The basis for the rainfall event and 
the method of estimation must be indicated.
    (4) Intermittent flows. If any of the discharges described in 
paragraph (g)(3) of this section are intermittent or seasonal, a 
description of the frequency, duration and flow rate of each discharge 
occurrence (except for stormwater runoff, spillage or leaks).
    (5) Maximum production. If an effluent guideline promulgated under 
section 304 of CWA applies to the applicant and is expressed in terms of 
production (or other measure of operation), a reasonable measure of the 
applicant's actual production reported in the units used in the 
applicable effluent guideline. The reported measure must reflect the 
actual production of the facility as required by Sec. 122.45(b)(2).
    (6) Improvements. If the applicant is subject to any present 
requirements or compliance schedules for construction, upgrading or 
operation of waste treatment equipment, an identification of the 
abatement requirement, a description of the abatement project, and a 
listing of the required and projected final compliance dates.
    (7) Effluent characteristics. (i) Information on the discharge of 
pollutants specified in this paragraph (g)(7) (except information on 
storm water discharges which is to be provided as specified in Sec. 
122.26). When ``quantitative data'' for a pollutant are required, the 
applicant must collect a sample of effluent and analyze it for the 
pollutant in accordance with analytical methods approved under Part 136 
of this chapter unless use of another method is required for the 
pollutant under 40 CFR subchapters N or O. When no analytical method is 
approved under Part 136 or required under subchapters N or O, the 
applicant may use any suitable method

[[Page 173]]

but must provide a description of the method. When an applicant has two 
or more outfalls with substantially identical effluents, the Director 
may allow the applicant to test only one outfall and report that 
quantitative data as applying to the substantially identical outfall. 
The requirements in paragraphs (g)(7)(vi) and (vii) of this section 
state that an applicant must provide quantitative data for certain 
pollutants known or believed to be present do not apply to pollutants 
present in a discharge solely as the result of their presence in intake 
water; however, an applicant must report such pollutants as present. 
When paragraph (g)(7) of this section requires analysis of pH, 
temperature, cyanide, total phenols, residual chlorine, oil and grease, 
fecal coliform (including E. coli), and Enterococci (previously known as 
fecal streptococcus at Sec. 122.26 (d)(2)(iii)(A)(3)), or volatile 
organics, grab samples must be collected for those pollutants. For all 
other pollutants, a 24-hour composite sample, using a minimum of four 
(4) grab samples, must be used unless specified otherwise at 40 CFR Part 
136. However, a minimum of one grab sample may be taken for effluents 
from holding ponds or other impoundments with a retention period greater 
than 24 hours. In addition, for discharges other than storm water 
discharges, the Director may waive composite sampling for any outfall 
for which the applicant demonstrates that the use of an automatic 
sampler is infeasible and that the minimum of four (4) grab samples will 
be a representative sample of the effluent being discharged. Results of 
analyses of individual grab samples for any parameter may be averaged to 
obtain the daily average. Grab samples that are not required to be 
analyzed immediately (see Table II at 40 CFR 136.3 (e)) may be 
composited in the laboratory, provided that container, preservation, and 
holding time requirements are met (see Table II at 40 CFR 136.3 (e)) and 
that sample integrity is not compromised by compositing.
    (ii) Storm water discharges. For storm water discharges, all samples 
shall be collected from the discharge resulting from a storm event that 
is greater than 0.1 inch and at least 72 hours from the previously 
measurable (greater than 0.1 inch rainfall) storm event. Where feasible, 
the variance in the duration of the event and the total rainfall of the 
event should not exceed 50 percent from the average or median rainfall 
event in that area. For all applicants, a flow-weighted composite shall 
be taken for either the entire discharge or for the first three hours of 
the discharge. The flow-weighted composite sample for a storm water 
discharge may be taken with a continuous sampler or as a combination of 
a minimum of three sample aliquots taken in each hour of discharge for 
the entire discharge or for the first three hours of the discharge, with 
each aliquot being separated by a minimum period of fifteen minutes 
(applicants submitting permit applications for storm water discharges 
under Sec. 122.26(d) may collect flow-weighted composite samples using 
different protocols with respect to the time duration between the 
collection of sample aliquots, subject to the approval of the Director). 
However, a minimum of one grab sample may be taken for storm water 
discharges from holding ponds or other impoundments with a retention 
period greater than 24 hours. For a flow-weighted composite sample, only 
one analysis of the composite of aliquots is required. For storm water 
discharge samples taken from discharges associated with industrial 
activities, quantitative data must be reported for the grab sample taken 
during the first thirty minutes (or as soon thereafter as practicable) 
of the discharge for all pollutants specified in Sec. 122.26(c)(1). For 
all storm water permit applicants taking flow-weighted composites, 
quantitative data must be reported for all pollutants specified in Sec. 
122.26 except pH, temperature, cyanide, total phenols, residual 
chlorine, oil and grease, fecal coliform, and fecal streptococcus. The 
Director may allow or establish appropriate site-specific sampling 
procedures or requirements, including sampling locations, the season in 
which the sampling takes place, the minimum duration between the 
previous measurable storm event and the storm event sampled, the minimum 
or maximum level of precipitation required for an appropriate storm 
event, the form of precipitation sampled

[[Page 174]]

(snow melt or rain fall), protocols for collecting samples under part 
136 of this chapter, and additional time for submitting data on a case-
by-case basis. An applicant is expected to ``know or have reason to 
believe'' that a pollutant is present in an effluent based on an 
evaluation of the expected use, production, or storage of the pollutant, 
or on any previous analyses for the pollutant. (For example, any 
pesticide manufactured by a facility may be expected to be present in 
contaminated storm water runoff from the facility.)
    (iii) Reporting requirements. Every applicant must report 
quantitative data for every outfall for the following pollutants:

    Biochemical Oxygen Demand (BOD5)
    Chemical Oxygen Demand
    Total Organic Carbon
    Total Suspended Solids
    Ammonia (as N)
    Temperature (both winter and summer)
    pH

    (iv) The Director may waive the reporting requirements for 
individual point sources or for a particular industry category for one 
or more of the pollutants listed in paragraph (g)(7)(iii) of this 
section if the applicant has demonstrated that such a waiver is 
appropriate because information adequate to support issuance of a permit 
can be obtained with less stringent requirements.
    (v) Each applicant with processes in one or more primary industry 
category (see appendix A of this part) contributing to a discharge must 
report quantitative data for the following pollutants in each outfall 
containing process wastewater:
    (A) The organic toxic pollutants in the fractions designated in 
table I of appendix D of this part for the applicant's industrial 
category or categories unless the applicant qualifies as a small 
business under paragraph (g)(8) of this section. Table II of appendix D 
of this part lists the organic toxic pollutants in each fraction. The 
fractions result from the sample preparation required by the analytical 
procedure which uses gas chromatography/mass spectrometry. A 
determination that an applicant falls within a particular industrial 
category for the purposes of selecting fractions for testing is not 
conclusive as to the applicant's inclusion in that category for any 
other purposes. See Notes 2, 3, and 4 of this section.
    (B) The pollutants listed in table III of appendix D of this part 
(the toxic metals, cyanide, and total phenols).
    (vi)(A) Each applicant must indicate whether it knows or has reason 
to believe that any of the pollutants in table IV of appendix D of this 
part (certain conventional and nonconventional pollutants) is discharged 
from each outfall. If an applicable effluent limitations guideline 
either directly limits the pollutant or, by its express terms, 
indirectly limits the pollutant through limitations on an indicator, the 
applicant must report quantitative data. For every pollutant discharged 
which is not so limited in an effluent limitations guideline, the 
applicant must either report quantitative data or briefly describe the 
reasons the pollutant is expected to be discharged.
    (B) Each applicant must indicate whether it knows or has reason to 
believe that any of the pollutants listed in table II or table III of 
appendix D of this part (the toxic pollutants and total phenols) for 
which quantitative data are not otherwise required under paragraph 
(g)(7)(v) of this section are discharged from each outfall. For every 
pollutant expected to be discharged in concentrations of 10 ppb or 
greater the applicant must report quantitative data. For acrolein, 
acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4, 6 dinitrophenol, where 
any of these four pollutants are expected to be discharged in 
concentrations of 100 ppb or greater the applicant must report 
quantitative data. For every pollutant expected to be discharged in 
concentrations less than 10 ppb, or in the case of acrolein, 
acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4, 6 dinitrophenol, in 
concentrations less than 100 ppb, the applicant must either submit 
quantitative data or briefly describe the reasons the pollutant is 
expected to be discharged. An applicant qualifying as a small business 
under paragraph (g)(8) of this section is not required to analyze for 
pollutants listed in table II of appendix D of this part (the organic 
toxic pollutants).

[[Page 175]]

    (vii) Each applicant must indicate whether it knows or has reason to 
believe that any of the pollutants in table V of appendix D of this part 
(certain hazardous substances and asbestos) are discharged from each 
outfall. For every pollutant expected to be discharged, the applicant 
must briefly describe the reasons the pollutant is expected to be 
discharged, and report any quantitative data it has for any pollutant.
    (viii) Each applicant must report qualitative data, generated using 
a screening procedure not calibrated with analytical standards, for 
2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) if it:
    (A) Uses or manufactures 2,4,5-trichlorophenoxy acetic acid (2,4,5,-
T); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5,-TP); 2-
(2,4,5-trichlorophenoxy) ethyl, 2,2-dichloropropionate (Erbon); O,O-
dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-
trichlorophenol (TCP); or hexachlorophene (HCP); or
    (B) Knows or has reason to believe that TCDD is or may be present in 
an effluent.
    (8) Small business exemption. An application which qualifies as a 
small business under one of the following criteria is exempt from the 
requirements in paragraph (g)(7)(v)(A) or (g)(7)(vi)(A) of this section 
to submit quantitative data for the pollutants listed in table II of 
appendix D of this part (the organic toxic pollutants):
    (i) For coal mines, a probable total annual production of less than 
100,000 tons per year.
    (ii) For all other applicants, gross total annual sales averaging 
less than $100,000 per year (in second quarter 1980 dollars).
    (9) Used or manufactured toxics. A listing of any toxic pollutant 
which the applicant currently uses or manufactures as an intermediate or 
final product or byproduct. The Director may waive or modify this 
requirement for any applicant if the applicant demonstrates that it 
would be unduly burdensome to identify each toxic pollutant and the 
Director has adequate information to issue the permit.
    (10) [Reserved]
    (11) Biological toxicity tests. An identification of any biological 
toxicity tests which the applicant knows or has reason to believe have 
been made within the last 3 years on any of the applicant's discharges 
or on a receiving water in relation to a discharge.
    (12) Contract analyses. If a contract laboratory or consulting firm 
performed any of the analyses required by paragraph (g)(7) of this 
section, the identity of each laboratory or firm and the analyses 
performed.
    (13) Additional information. In addition to the information reported 
on the application form, applicants shall provide to the Director, at 
his or her request, such other information as the Director may 
reasonably require to assess the discharges of the facility and to 
determine whether to issue an NPDES permit. The additional information 
may include additional quantitative data and bioassays to assess the 
relative toxicity of discharges to aquatic life and requirements to 
determine the cause of the toxicity.
    (h) Application requirements for manufacturing, commercial, mining 
and silvicultural facilities which discharge only non-process 
wastewater. Except for stormwater discharges, all manufacturing, 
commercial, mining and silvicultural dischargers applying for NPDES 
permits which discharge only non-process wastewater not regulated by an 
effluent limitations guideline or new source performance standard shall 
provide the following information to the Director, using application 
forms provided by the Director:
    (1) Outfall location. Outfall number, latitude and longitude to the 
nearest 15 seconds, and the name of the receiving water.
    (2) Discharge date (for new dischargers). Date of expected 
commencement of discharge.
    (3) Type of waste. An identification of the general type of waste 
discharged, or expected to be discharged upon commencement of 
operations, including sanitary wastes, restaurant or cafeteria wastes, 
or noncontact cooling water. An identification of cooling water 
additives (if any) that are used or expected to be used upon 
commencement of operations, along with their

[[Page 176]]

composition if existing composition is available.
    (4) Effluent characteristics. (i) Quantitative data for the 
pollutants or parameters listed below, unless testing is waived by the 
Director. The quantitative data may be data collected over the past 365 
days, if they remain representative of current operations, and must 
include maximum daily value, average daily value, and number of 
measurements taken. The applicant must collect and analyze samples in 
accordance with 40 CFR Part 136. When analysis of pH, temperature, 
residual chlorine, oil and grease, or fecal coliform (including E. 
coli), and Enterococci (previously known as fecal streptococcus) and 
volatile organics is required in paragraphs (h)(4)(i)(A) through (K) of 
this section, grab samples must be collected for those pollutants. For 
all other pollutants, a 24-hour composite sample, using a minimum of 
four (4) grab samples, must be used unless specified otherwise at 40 CFR 
Part 136. For a composite sample, only one analysis of the composite of 
aliquots is required. New dischargers must include estimates for the 
pollutants or parameters listed below instead of actual sampling data, 
along with the source of each estimate. All levels must be reported or 
estimated as concentration and as total mass, except for flow, pH, and 
temperature.
    (A) Biochemical Oxygen Demand (BOD5).
    (B) Total Suspended Solids (TSS).
    (C) Fecal Coliform (if believed present or if sanitary waste is or 
will be discharged).
    (D) Total Residual Chlorine (if chlorine is used).
    (E) Oil and Grease.
    (F) Chemical Oxygen Demand (COD) (if non-contact cooling water is or 
will be discharged).
    (G) Total Organic Carbon (TOC) (if non-contact cooling water is or 
will be discharged).
    (H) Ammonia (as N).
    (I) Discharge Flow.
    (J) pH.
    (K) Temperature (Winter and Summer).
    (ii) The Director may waive the testing and reporting requirements 
for any of the pollutants or flow listed in paragraph (h)(4)(i) of this 
section if the applicant submits a request for such a waiver before or 
with his application which demonstrates that information adequate to 
support issuance of a permit can be obtained through less stringent 
requirements.
    (iii) If the applicant is a new discharger, he must complete and 
submit Item IV of Form 2e (see Sec. 122.21(h)(4)) by providing 
quantitative data in accordance with that section no later than two 
years after commencement of discharge. However, the applicant need not 
complete those portions of Item IV requiring tests which he has already 
performed and reported under the discharge monitoring requirements of 
his NPDES permit.
    (iv) The requirements of parts i and iii of this section that an 
applicant must provide quantitative data or estimates of certain 
pollutants do not apply to pollutants present in a discharge solely as a 
result of their presence in intake water. However, an applicant must 
report such pollutants as present. Net credit may be provided for the 
presence of pollutants in intake water if the requirements of Sec. 
122.45(g) are met.
    (5) Flow. A description of the frequency of flow and duration of any 
seasonal or intermittent discharge (except for stormwater runoff, leaks, 
or spills).
    (6) Treatment system. A brief description of any system used or to 
be used.
    (7) Optional information. Any additional information the applicant 
wishes to be considered, such as influent data for the purpose of 
obtaining ``net'' credits pursuant to Sec. 122.45(g).
    (8) Certification. Signature of certifying official under Sec. 
122.22.
    (i) Application requirements for new and existing concentrated 
animal feeding operations and aquatic animal production facilities. New 
and existing concentrated animal feeding operations (defined in Sec. 
122.23) and concentrated aquatic animal production facilities (defined 
in Sec. 122.24) shall provide the following information to the 
Director, using the application form provided by the Director:
    (1) For concentrated animal feeding operations:
    (i) The name of the owner or operator;

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    (ii) The facility location and mailing addresses;
    (iii) Latitude and longitude of the production area (entrance to 
production area);
    (iv) A topographic map of the geographic area in which the CAFO is 
located showing the specific location of the production area, in lieu of 
the requirements of paragraph (f)(7) of this section;
    (v) Specific information about the number and type of animals, 
whether in open confinement or housed under roof (beef cattle, broilers, 
layers, swine weighing 55 pounds or more, swine weighing less than 55 
pounds, mature dairy cows, dairy heifers, veal calves, sheep and lambs, 
horses, ducks, turkeys, other);
    (vi) The type of containment and storage (anaerobic lagoon, roofed 
storage shed, storage ponds, underfloor pits, above ground storage 
tanks, below ground storage tanks, concrete pad, impervious soil pad, 
other) and total capacity for manure, litter, and process wastewater 
storage(tons/gallons);
    (vii) The total number of acres under control of the applicant 
available for land application of manure, litter, or process wastewater;
    (viii) Estimated amounts of manure, litter, and process wastewater 
generated per year (tons/gallons);
    (ix) Estimated amounts of manure, litter and process wastewater 
transferred to other persons per year (tons/gallons); and
    (x) A nutrient management plan that at a minimum satisfies the 
requirements specified in Sec. 122.42(e), including, for all CAFOs 
subject to 40 CFR part 412, subpart C or subpart D, the requirements of 
40 CFR 412.4(c), as applicable.
    (2) For concentrated aquatic animal production facilities:
    (i) The maximum daily and average monthly flow from each outfall.
    (ii) The number of ponds, raceways, and similar structures.
    (iii) The name of the receiving water and the source of intake 
water.
    (iv) For each species of aquatic animals, the total yearly and 
maximum harvestable weight.
    (v) The calendar month of maximum feeding and the total mass of food 
fed during that month.
    (j) Application requirements for new and existing POTWs. Unless 
otherwise indicated, all POTWs and other dischargers designated by the 
Director must provide, at a minimum, the information in this paragraph 
to the Director, using Form 2A or another application form provided by 
the Director. Permit applicants must submit all information available at 
the time of permit application. The information may be provided by 
referencing information previously submitted to the Director. The 
Director may waive any requirement of this paragraph if he or she has 
access to substantially identical information. The Director may also 
waive any requirement of this paragraph that is not of material concern 
for a specific permit, if approved by the Regional Administrator. The 
waiver request to the Regional Administrator must include the State's 
justification for the waiver. A Regional Administrator's disapproval of 
a State's proposed waiver does not constitute final Agency action, but 
does provide notice to the State and permit applicant(s) that EPA may 
object to any State-issued permit issued in the absence of the required 
information.
    (1) Basic application information. All applicants must provide the 
following information:
    (i) Facility information. Name, mailing address, and location of the 
facility for which the application is submitted;
    (ii) Applicant information. Name, mailing address, and telephone 
number of the applicant, and indication as to whether the applicant is 
the facility's owner, operator, or both;
    (iii) Existing environmental permits. Identification of all 
environmental permits or construction approvals received or applied for 
(including dates) under any of the following programs:
    (A) Hazardous Waste Management program under the Resource 
Conservation and Recovery Act (RCRA), Subpart C;
    (B) Underground Injection Control program under the Safe Drinking 
Water Act (SDWA);
    (C) NPDES program under Clean Water Act (CWA);

[[Page 178]]

    (D) Prevention of Significant Deterioration (PSD) program under the 
Clean Air Act;
    (E) Nonattainment program under the Clean Air Act;
    (F) National Emission Standards for Hazardous Air Pollutants 
(NESHAPS) preconstruction approval under the Clean Air Act;
    (G) Ocean dumping permits under the Marine Protection Research and 
Sanctuaries Act;
    (H) Dredge or fill permits under section 404 of the CWA; and
    (I) Other relevant environmental permits, including State permits;
    (iv) Population. The name and population of each municipal entity 
served by the facility, including unincorporated connector districts. 
Indicate whether each municipal entity owns or maintains the collection 
system and whether the collection system is separate sanitary or 
combined storm and sanitary, if known;
    (v) Indian country. Information concerning whether the facility is 
located in Indian country and whether the facility discharges to a 
receiving stream that flows through Indian country;
    (vi) Flow rate. The facility's design flow rate (the wastewater flow 
rate the plant was built to handle), annual average daily flow rate, and 
maximum daily flow rate for each of the previous 3 years;
    (vii) Collection system. Identification of type(s) of collection 
system(s) used by the treatment works (i.e., separate sanitary sewers or 
combined storm and sanitary sewers) and an estimate of the percent of 
sewer line that each type comprises; and
    (viii) Outfalls and other discharge or disposal methods. The 
following information for outfalls to waters of the United States and 
other discharge or disposal methods:
    (A) For effluent discharges to waters of the United States, the 
total number and types of outfalls (e.g, treated effluent, combined 
sewer overflows, bypasses, constructed emergency overflows);
    (B) For wastewater discharged to surface impoundments:
    (1) The location of each surface impoundment;
    (2) The average daily volume discharged to each surface impoundment; 
and
    (3) Whether the discharge is continuous or intermittent;
    (C) For wastewater applied to the land:
    (1) The location of each land application site;
    (2) The size of each land application site, in acres;
    (3) The average daily volume applied to each land application site, 
in gallons per day; and
    (4) Whether land application is continuous or intermittent;
    (D) For effluent sent to another facility for treatment prior to 
discharge:
    (1) The means by which the effluent is transported;
    (2) The name, mailing address, contact person, and phone number of 
the organization transporting the discharge, if the transport is 
provided by a party other than the applicant;
    (3) The name, mailing address, contact person, phone number, and 
NPDES permit number (if any) of the receiving facility; and
    (4) The average daily flow rate from this facility into the 
receiving facility, in millions of gallons per day; and
    (E) For wastewater disposed of in a manner not included in 
paragraphs (j)(1)(viii)(A) through (D) of this section (e.g., 
underground percolation, underground injection):
    (1) A description of the disposal method, including the location and 
size of each disposal site, if applicable;
    (2) The annual average daily volume disposed of by this method, in 
gallons per day; and
    (3) Whether disposal through this method is continuous or 
intermittent;
    (2) Additional Information. All applicants with a design flow 
greater than or equal to 0.1 mgd must provide the following information:
    (i) Inflow and infiltration. The current average daily volume of 
inflow and infiltration, in gallons per day, and steps the facility is 
taking to minimize inflow and infiltration;
    (ii) Topographic map. A topographic map (or other map if a 
topographic map is unavailable) extending at least one mile beyond 
property boundaries of

[[Page 179]]

the treatment plant, including all unit processes, and showing:
    (A) Treatment plant area and unit processes;
    (B) The major pipes or other structures through which wastewater 
enters the treatment plant and the pipes or other structures through 
which treated wastewater is discharged from the treatment plant. Include 
outfalls from bypass piping, if applicable;
    (C) Each well where fluids from the treatment plant are injected 
underground;
    (D) Wells, springs, and other surface water bodies listed in public 
records or otherwise known to the applicant within \1/4\ mile of the 
treatment works' property boundaries;
    (E) Sewage sludge management facilities (including on-site 
treatment, storage, and disposal sites); and
    (F) Location at which waste classified as hazardous under RCRA 
enters the treatment plant by truck, rail, or dedicated pipe;
    (iii) Process flow diagram or schematic. (A) A diagram showing the 
processes of the treatment plant, including all bypass piping and all 
backup power sources or redundancy in the system. This includes a water 
balance showing all treatment units, including disinfection, and showing 
daily average flow rates at influent and discharge points, and 
approximate daily flow rates between treatment units; and
    (B) A narrative description of the diagram; and
    (iv) Scheduled improvements, schedules of implementation. The 
following information regarding scheduled improvements:
    (A) The outfall number of each outfall affected;
    (B) A narrative description of each required improvement;
    (C) Scheduled or actual dates of completion for the following:
    (1) Commencement of construction;
    (2) Completion of construction;
    (3) Commencement of discharge; and
    (4) Attainment of operational level;
    (D) A description of permits and clearances concerning other Federal 
and/or State requirements;
    (3) Information on effluent discharges. Each applicant must provide 
the following information for each outfall, including bypass points, 
through which effluent is discharged, as applicable:
    (i) Description of outfall. The following information about each 
outfall:
    (A) Outfall number;
    (B) State, county, and city or town in which outfall is located;
    (C) Latitude and longitude, to the nearest second;
    (D) Distance from shore and depth below surface;
    (E) Average daily flow rate, in million gallons per day;
    (F) The following information for each outfall with a seasonal or 
periodic discharge:
    (1) Number of times per year the discharge occurs;
    (2) Duration of each discharge;
    (3) Flow of each discharge; and
    (4) Months in which discharge occurs; and
    (G) Whether the outfall is equipped with a diffuser and the type 
(e.g., high-rate) of diffuser used;
    (ii) Description of receiving waters. The following information (if 
known) for each outfall through which effluent is discharged to waters 
of the United States:
    (A) Name of receiving water;
    (B) Name of watershed/river/stream system and United States Soil 
Conservation Service 14-digit watershed code;
    (C) Name of State Management/River Basin and United States 
Geological Survey 8-digit hydrologic cataloging unit code; and
    (D) Critical flow of receiving stream and total hardness of 
receiving stream at critical low flow (if applicable);
    (iii) Description of treatment. The following information describing 
the treatment provided for discharges from each outfall to waters of the 
United States:
    (A) The highest level of treatment (e.g., primary, equivalent to 
secondary, secondary, advanced, other) that is provided for the 
discharge for each outfall and:
    (1) Design biochemical oxygen demand (BOD5 or 
CBOD5) removal (percent);
    (2) Design suspended solids (SS) removal (percent); and, where 
applicable,
    (3) Design phosphorus (P) removal (percent);

[[Page 180]]

    (4) Design nitrogen (N) removal (percent); and
    (5) Any other removals that an advanced treatment system is designed 
to achieve.
    (B) A description of the type of disinfection used, and whether the 
treatment plant dechlorinates (if disinfection is accomplished through 
chlorination);
    (4) Effluent monitoring for specific parameters. (i) As provided in 
paragraphs (j)(4)(ii) through (x) of this section, all applicants must 
submit to the Director effluent monitoring information for samples taken 
from each outfall through which effluent is discharged to waters of the 
United States, except for CSOs. The Director may allow applicants to 
submit sampling data for only one outfall on a case-by-case basis, where 
the applicant has two or more outfalls with substantially identical 
effluent. The Director may also allow applicants to composite samples 
from one or more outfalls that discharge into the same mixing zone;
    (ii) All applicants must sample and analyze for the pollutants 
listed in Appendix J, Table 1A of this part;
    (iii) All applicants with a design flow greater than or equal to 0.1 
mgd must sample and analyze for the pollutants listed in Appendix J, 
Table 1 of this part. Facilities that do not use chlorine for 
disinfection, do not use chlorine elsewhere in the treatment process, 
and have no reasonable potential to discharge chlorine in their effluent 
may delete chlorine from Table 1;
    (iv) The following applicants must sample and analyze for the 
pollutants listed in Appendix J, Table 2 of this part, and for any other 
pollutants for which the State or EPA have established water quality 
standards applicable to the receiving waters:
    (A) All POTWs with a design flow rate equal to or greater than one 
million gallons per day;
    (B) All POTWs with approved pretreatment programs or POTWs required 
to develop a pretreatment program;
    (C) Other POTWs, as required by the Director;
    (v) The Director should require sampling for additional pollutants, 
as appropriate, on a case-by-case basis;
    (vi) Applicants must provide data from a minimum of three samples 
taken within four and one-half years prior to the date of the permit 
application. Samples must be representative of the seasonal variation in 
the discharge from each outfall. Existing data may be used, if 
available, in lieu of sampling done solely for the purpose of this 
application. The Director should require additional samples, as 
appropriate, on a case-by-case basis.
    (vii) All existing data for pollutants specified in paragraphs 
(j)(4)(ii) through (v) of this section that is collected within four and 
one-half years of the application must be included in the pollutant data 
summary submitted by the applicant. If, however, the applicant samples 
for a specific pollutant on a monthly or more frequent basis, it is only 
necessary, for such pollutant, to summarize all data collected within 
one year of the application.
    (viii) Applicants must collect samples of effluent and analyze such 
samples for pollutants in accordance with analytical methods approved 
under 40 CFR Part 136 unless an alternative is specified in the existing 
NPDES permit. When analysis of pH, temperature, cyanide, total phenols, 
residual chlorine, oil and grease, fecal coliform (including E. coli), 
or volatile organics is required in paragraphs (j)(4)(ii) through (iv) 
of this section, grab samples must be collected for those pollutants. 
For all other pollutants, 24-hour composite samples must be used. For a 
composite sample, only one analysis of the composite of aliquots is 
required.
    (ix) The effluent monitoring data provided must include at least the 
following information for each parameter:
    (A) Maximum daily discharge, expressed as concentration or mass, 
based upon actual sample values;
    (B) Average daily discharge for all samples, expressed as 
concentration or mass, and the number of samples used to obtain this 
value;
    (C) The analytical method used; and
    (D) The threshold level (i.e., method detection limit, minimum 
level, or other designated method endpoints) for the analytical method 
used.
    (x) Unless otherwise required by the Director, metals must be 
reported as total recoverable.

[[Page 181]]

    (5) Effluent monitoring for whole effluent toxicity. (i) All 
applicants must provide an identification of any whole effluent toxicity 
tests conducted during the four and one-half years prior to the date of 
the application on any of the applicant's discharges or on any receiving 
water near the discharge.
    (ii) As provided in paragraphs (j)(5)(iii)-(ix) of this section, the 
following applicants must submit to the Director the results of valid 
whole effluent toxicity tests for acute or chronic toxicity for samples 
taken from each outfall through which effluent is discharged to surface 
waters, except for combined sewer overflows:
    (A) All POTWs with design flow rates greater than or equal to one 
million gallons per day;
    (B) All POTWs with approved pretreatment programs or POTWs required 
to develop a pretreatment program;
    (C) Other POTWs, as required by the Director, based on consideration 
of the following factors:
    (1) The variability of the pollutants or pollutant parameters in the 
POTW effluent (based on chemical-specific information, the type of 
treatment plant, and types of industrial contributors);
    (2) The ratio of effluent flow to receiving stream flow;
    (3) Existing controls on point or non-point sources, including total 
maximum daily load calculations for the receiving stream segment and the 
relative contribution of the POTW;
    (4) Receiving stream characteristics, including possible or known 
water quality impairment, and whether the POTW discharges to a coastal 
water, one of the Great Lakes, or a water designated as an outstanding 
natural resource water; or
    (5) Other considerations (including, but not limited to, the history 
of toxic impacts and compliance problems at the POTW) that the Director 
determines could cause or contribute to adverse water quality impacts.
    (iii) Where the POTW has two or more outfalls with substantially 
identical effluent discharging to the same receiving stream segment, the 
Director may allow applicants to submit whole effluent toxicity data for 
only one outfall on a case-by-case basis. The Director may also allow 
applicants to composite samples from one or more outfalls that discharge 
into the same mixing zone.
    (iv) Each applicant required to perform whole effluent toxicity 
testing pursuant to paragraph (j)(5)(ii) of this section must provide:
    (A) Results of a minimum of four quarterly tests for a year, from 
the year preceding the permit application; or
    (B) Results from four tests performed at least annually in the four 
and one half year period prior to the application, provided the results 
show no appreciable toxicity using a safety factor determined by the 
permitting authority.
    (v) Applicants must conduct tests with multiple species (no less 
than two species; e.g., fish, invertebrate, plant), and test for acute 
or chronic toxicity, depending on the range of receiving water dilution. 
EPA recommends that applicants conduct acute or chronic testing based on 
the following dilutions:
    (A) Acute toxicity testing if the dilution of the effluent is 
greater than 1000:1 at the edge of the mixing zone;
    (B) Acute or chronic toxicity testing if the dilution of the 
effluent is between 100:1 and 1000:1 at the edge of the mixing zone. 
Acute testing may be more appropriate at the higher end of this range 
(1000:1), and chronic testing may be more appropriate at the lower end 
of this range (100:1); and
    (C) Chronic testing if the dilution of the effluent is less than 
100:1 at the edge of the mixing zone.
    (vi) Each applicant required to perform whole effluent toxicity 
testing pursuant to paragraph (j)(5)(ii) of this section must provide 
the number of chronic or acute whole effluent toxicity tests that have 
been conducted since the last permit reissuance.
    (vii) Applicants must provide the results using the form provided by 
the Director, or test summaries if available and comprehensive, for each 
whole effluent toxicity test conducted pursuant to paragraph (j)(5)(ii) 
of this section for which such information has not been reported 
previously to the Director.

[[Page 182]]

    (viii) Whole effluent toxicity testing conducted pursuant to 
paragraph (j)(5)(ii) of this section must be conducted using methods 
approved under 40 CFR part 136. West coast facilities in Washington, 
Oregon, California, Alaska, Hawaii, and the Pacific Territories are 
exempted from 40 CFR part 136 chronic methods and must use alternative 
guidance as directed by the permitting authority.
    (ix) For whole effluent toxicity data submitted to the Director 
within four and one-half years prior to the date of the application, 
applicants must provide the dates on which the data were submitted and a 
summary of the results.
    (x) Each POTW required to perform whole effluent toxicity testing 
pursuant to paragraph (j)(5)(ii) of this section must provide any 
information on the cause of toxicity and written details of any toxicity 
reduction evaluation conducted, if any whole effluent toxicity test 
conducted within the past four and one-half years revealed toxicity.
    (6) Industrial discharges. Applicants must submit the following 
information about industrial discharges to the POTW:
    (i) Number of significant industrial users (SIUs) and categorical 
industrial users (CIUs) discharging to the POTW; and
    (ii) POTWs with one or more SIUs shall provide the following 
information for each SIU, as defined at 40 CFR 403.3(v), that discharges 
to the POTW:
    (A) Name and mailing address;
    (B) Description of all industrial processes that affect or 
contribute to the SIU's discharge;
    (C) Principal products and raw materials of the SIU that affect or 
contribute to the SIU's discharge;
    (D) Average daily volume of wastewater discharged, indicating the 
amount attributable to process flow and non-process flow;
    (E) Whether the SIU is subject to local limits;
    (F) Whether the SIU is subject to categorical standards, and if so, 
under which category(ies) and subcategory(ies); and
    (G) Whether any problems at the POTW (e.g., upsets, pass through, 
interference) have been attributed to the SIU in the past four and one-
half years.
    (iii) The information required in paragraphs (j)(6)(i) and (ii) of 
this section may be waived by the Director for POTWs with pretreatment 
programs if the applicant has submitted either of the following that 
contain information substantially identical to that required in 
paragraphs (j)(6)(i) and (ii) of this section.
    (A) An annual report submitted within one year of the application; 
or
    (B) A pretreatment program;
    (7) Discharges from hazardous waste generators and from waste 
cleanup or remediation sites. POTWs receiving Resource Conservation and 
Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, 
and Liability Act (CERCLA), or RCRA Corrective Action wastes or wastes 
generated at another type of cleanup or remediation site must provide 
the following information:
    (i) If the POTW receives, or has been notified that it will receive, 
by truck, rail, or dedicated pipe any wastes that are regulated as RCRA 
hazardous wastes pursuant to 40 CFR part 261, the applicant must report 
the following:
    (A) The method by which the waste is received (i.e., whether by 
truck, rail, or dedicated pipe); and
    (B) The hazardous waste number and amount received annually of each 
hazardous waste;
    (ii) If the POTW receives, or has been notified that it will 
receive, wastewaters that originate from remedial activities, including 
those undertaken pursuant to CERCLA and sections 3004(u) or 3008(h) of 
RCRA, the applicant must report the following:
    (A) The identity and description of the site(s) or facility(ies) at 
which the wastewater originates;
    (B) The identities of the wastewater's hazardous constituents, as 
listed in Appendix VIII of part 261 of this chapter; if known; and
    (C) The extent of treatment, if any, the wastewater receives or will 
receive before entering the POTW;
    (iii) Applicants are exempt from the requirements of paragraph 
(j)(7)(ii) of this section if they receive no more than fifteen 
kilograms per month of hazardous wastes, unless the wastes are

[[Page 183]]

acute hazardous wastes as specified in 40 CFR 261.30(d) and 261.33(e).
    (8) Combined sewer overflows. Each applicant with combined sewer 
systems must provide the following information:
    (i) Combined sewer system information. The following information 
regarding the combined sewer system:
    (A) System map. A map indicating the location of the following:
    (1) All CSO discharge points;
    (2) Sensitive use areas potentially affected by CSOs (e.g., beaches, 
drinking water supplies, shellfish beds, sensitive aquatic ecosystems, 
and outstanding national resource waters); and
    (3) Waters supporting threatened and endangered species potentially 
affected by CSOs; and
    (B) System diagram. A diagram of the combined sewer collection 
system that includes the following information:
    (1) The location of major sewer trunk lines, both combined and 
separate sanitary;
    (2) The locations of points where separate sanitary sewers feed into 
the combined sewer system;
    (3) In-line and off-line storage structures;
    (4) The locations of flow-regulating devices; and
    (5) The locations of pump stations;
    (ii) Information on CSO outfalls. The following information for each 
CSO discharge point covered by the permit application:
    (A) Description of outfall. The following information on each 
outfall:
    (1) Outfall number;
    (2) State, county, and city or town in which outfall is located;
    (3) Latitude and longitude, to the nearest second; and
    (4) Distance from shore and depth below surface;
    (5) Whether the applicant monitored any of the following in the past 
year for this CSO:
    (i) Rainfall;
    (ii) CSO flow volume;
    (iii) CSO pollutant concentrations;
    (iv) Receiving water quality;
    (v) CSO frequency; and
    (6) The number of storm events monitored in the past year;
    (B) CSO events. The following information about CSO overflows from 
each outfall:
    (1) The number of events in the past year;
    (2) The average duration per event, if available;
    (3) The average volume per CSO event, if available; and
    (4) The minimum rainfall that caused a CSO event, if available, in 
the last year;
    (C) Description of receiving waters. The following information about 
receiving waters:
    (1) Name of receiving water;
    (2) Name of watershed/stream system and the United States Soil 
Conservation Service watershed (14-digit) code (if known); and
    (3) Name of State Management/River Basin and the United States 
Geological Survey hydrologic cataloging unit (8-digit) code (if known); 
and
    (D) CSO operations. A description of any known water quality impacts 
on the receiving water caused by the CSO (e.g., permanent or 
intermittent beach closings, permanent or intermittent shellfish bed 
closings, fish kills, fish advisories, other recreational loss, or 
exceedance of any applicable State water quality standard);
    (9) Contractors. All applicants must provide the name, mailing 
address, telephone number, and responsibilities of all contractors 
responsible for any operational or maintenance aspects of the facility; 
and
    (10) Signature. All applications must be signed by a certifying 
official in compliance with Sec. 122.22.
    (k) Application requirements for new sources and new discharges. New 
manufacturing, commercial, mining and silvicultural dischargers applying 
for NPDES permits (except for new discharges of facilities subject to 
the requirements of paragraph (h) of this section or new discharges of 
storm water associated with industrial activity which are subject to the 
requirements of Sec. 122.26(c)(1) and this section (except as provided 
by Sec. 122.26(c)(1)(ii)) shall provide the following information to 
the Director, using the application forms provided by the Director:
    (1) Expected outfall location. The latitude and longitude to the 
nearest 15

[[Page 184]]

seconds and the name of the receiving water.
    (2) Discharge dates. The expected date of commencement of discharge.
    (3) Flows, sources of pollution, and treatment technologies--(i) 
Expected treatment of wastewater. Description of the treatment that the 
wastewater will receive, along with all operations contributing 
wastewater to the effluent, average flow contributed by each operation, 
and the ultimate disposal of any solid or liquid wastes not discharged.
    (ii) Line drawing. A line drawing of the water flow through the 
facility with a water balance as described in Sec. 122.21(g)(2).
    (iii) Intermittent flows. If any of the expected discharges will be 
intermittent or seasonal, a description of the frequency, duration and 
maximum daily flow rate of each discharge occurrence (except for 
stormwater runoff, spillage, or leaks).
    (4) Production. If a new source performance standard promulgated 
under section 306 of CWA or an effluent limitation guideline applies to 
the applicant and is expressed in terms of production (or other measure 
of operation), a reasonable measure of the applicant's expected actual 
production reported in the units used in the applicable effluent 
guideline or new source performance standard as required by Sec. 
122.45(b)(2) for each of the first three years. Alternative estimates 
may also be submitted if production is likely to vary.
    (5) Effluent characteristics. The requirements in paragraphs 
(h)(4)(i), (ii), and (iii) of this section that an applicant must 
provide estimates of certain pollutants expected to be present do not 
apply to pollutants present in a discharge solely as a result of their 
presence in intake water; however, an applicant must report such 
pollutants as present. Net credits may be provided for the presence of 
pollutants in intake water if the requirements of Sec. 122.45(g) are 
met. All levels (except for discharge flow, temperature, and pH) must be 
estimated as concentration and as total mass.
    (i) Each applicant must report estimated daily maximum, daily 
average, and source of information for each outfall for the following 
pollutants or parameters. The Director may waive the reporting 
requirements for any of these pollutants and parameters if the applicant 
submits a request for such a waiver before or with his application which 
demonstrates that information adequate to support issuance of the permit 
can be obtained through less stringent reporting requirements.
    (A) Biochemical Oxygen Demand (BOD).
    (B) Chemical Oxygen Demand (COD).
    (C) Total Organic Carbon (TOC).
    (D) Total Suspended Solids (TSS).
    (E) Flow.
    (F) Ammonia (as N).
    (G) Temperature (winter and summer).
    (H) pH.
    (ii) Each applicant must report estimated daily maximum, daily 
average, and source of information for each outfall for the following 
pollutants, if the applicant knows or has reason to believe they will be 
present or if they are limited by an effluent limitation guideline or 
new source performance standard either directly or indirectly through 
limitations on an indicator pollutant: all pollutants in table IV of 
appendix D of part 122 (certain conventional and nonconventional 
pollutants).
    (iii) Each applicant must report estimated daily maximum, daily 
average and source of information for the following pollutants if he 
knows or has reason to believe that they will be present in the 
discharges from any outfall:
    (A) The pollutants listed in table III of appendix D (the toxic 
metals, in the discharge from any outfall: Total cyanide, and total 
phenols);
    (B) The organic toxic pollutants in table II of appendix D (except 
bis (chloromethyl) ether, dichlorofluoromethane and 
trichlorofluoromethane). This requirement is waived for applicants with 
expected gross sales of less than $100,000 per year for the next three 
years, and for coal mines with expected average production of less than 
100,000 tons of coal per year.
    (iv) The applicant is required to report that 2,3,7,8 
Tetrachlorodibenzo-P-Dioxin (TCDD) may be discharged if he

[[Page 185]]

uses or manufactures one of the following compounds, or if he knows or 
has reason to believe that TCDD will or may be present in an effluent:
    (A) 2,4,5-trichlorophenoxy acetic acid (2,4,5-T) (CAS 93-
76-5);
    (B) 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP) 
(CAS 93-72-1);
    (C) 2-(2,4,5-trichlorophenoxy) ethyl 2,2-dichloropropionate (Erbon) 
(CAS 136-25-4);
    (D) 0,0-dimethyl 0-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel) 
(CAS 299-84-3);
    (E) 2,4,5-trichlorophenol (TCP) (CAS 95-95-4); or
    (F) Hexachlorophene (HCP) (CAS 70-30-4);
    (v) Each applicant must report any pollutants listed in table V of 
appendix D (certain hazardous substances) if he believes they will be 
present in any outfall (no quantitative estimates are required unless 
they are already available).
    (vi) No later than two years after the commencement of discharge 
from the proposed facility, the applicant is required to complete and 
submit Items V and VI of NPDES application Form 2c (see Sec. 
122.21(g)). However, the applicant need not complete those portions of 
Item V requiring tests which he has already performed and reported under 
the discharge monitoring requirements of his NPDES permit.
    (6) Engineering Report. Each applicant must report the existence of 
any technical evaluation concerning his wastewater treatment, along with 
the name and location of similar plants of which he has knowledge.
    (7) Other information. Any optional information the permittee wishes 
to have considered.
    (8) Certification. Signature of certifying official under Sec. 
122.22.
    (l) Special provisions for applications from new sources. (1) The 
owner or operator of any facility which may be a new source (as defined 
in Sec. 122.2 ) and which is located in a State without an approved 
NPDES program must comply with the provisions of this paragraph (l)(1).
    (2)(i) Before beginning any on-site construction as defined in Sec. 
122.29, the owner or operator of any facility which may be a new source 
must submit information to the Regional Administrator so that he or she 
can determine if the facility is a new source. The Regional 
Administrator may request any additional information needed to determine 
whether the facility is a new source.
    (ii) The Regional Administrator shall make an initial determination 
whether the facility is a new source within 30 days of receiving all 
necessary information under paragraph (l)(2)(i) of this section.
    (3) The Regional Administrator shall issue a public notice in 
accordance with Sec. 124.10 of this chapter of the new source 
determination under paragraph (l)(2) of this section. If the Regional 
Administrator has determined that the facility is a new source, the 
notice shall state that the applicant must comply with the environmental 
review requirements of 40 CFR 6.600 through 6.607.
    (4) Any interested party may challenge the Regional Administrator's 
initial new source determination by requesting review of the 
determination under Sec. 124.19 of this chapter within 30 days of the 
public notice of the initial determination. If all interested parties 
agree, the Environmental Appeals Board may defer review until after a 
final permit decision is made, and consolidate review of the 
determination with any review of the permit decision.
    (m) Variance requests by non-POTWs. A discharger which is not a 
publicly owned treatment works (POTW) may request a variance from 
otherwise applicable effluent limitations under any of the following 
statutory or regulatory provisions within the times specified in this 
paragraph:
    (1) Fundamentally different factors. (i) A request for a variance 
based on the presence of ``fundamentally different factors'' from those 
on which the effluent limitations guideline was based shall be filed as 
follows:
    (A) For a request from best practicable control technology currently 
available (BPT), by the close of the public comment period under Sec. 
124.10.
    (B) For a request from best available technology economically 
achievable

[[Page 186]]

(BAT) and/or best conventional pollutant control technology (BCT), by no 
later than:
    (1) July 3, 1989, for a request based on an effluent limitation 
guideline promulgated before February 4, 1987, to the extent July 3, 
1989 is not later than that provided under previously promulgated 
regulations; or
    (2) 180 days after the date on which an effluent limitation 
guideline is published in the Federal Register for a request based on an 
effluent limitation guideline promulgated on or after February 4, 1987.
    (ii) The request shall explain how the requirements of the 
applicable regulatory and/or statutory criteria have been met.
    (2) Non-conventional pollutants. A request for a variance from the 
BAT requirements for CWA section 301(b)(2)(F) pollutants (commonly 
called ``non-conventional'' pollutants) pursuant to section 301(c) of 
CWA because of the economic capability of the owner or operator, or 
pursuant to section 301(g) of the CWA (provided however that a Sec. 
301(g) variance may only be requested for ammonia; chlorine; color; 
iron; total phenols (4AAP) (when determined by the Administrator to be a 
pollutant covered by section 301(b)(2)(F)) and any other pollutant which 
the Administrator lists under section 301(g)(4) of the CWA) must be made 
as follows:
    (i) For those requests for a variance from an effluent limitation 
based upon an effluent limitation guideline by:
    (A) Submitting an initial request to the Regional Administrator, as 
well as to the State Director if applicable, stating the name of the 
discharger, the permit number, the outfall number(s), the applicable 
effluent guideline, and whether the discharger is requesting a section 
301(c) or section 301(g) modification or both. This request must have 
been filed not later than:
    (1) September 25, 1978, for a pollutant which is controlled by a BAT 
effluent limitation guideline promulgated before December 27, 1977; or
    (2) 270 days after promulgation of an applicable effluent limitation 
guideline for guidelines promulgated after December 27, 1977; and
    (B) Submitting a completed request no later than the close of the 
public comment period under Sec. 124.10 demonstrating that the 
requirements of Sec. 124.13 and the applicable requirements of part 125 
have been met. Notwithstanding this provision, the complete application 
for a request under section 301(g) shall be filed 180 days before EPA 
must make a decision (unless the Regional Division Director establishes 
a shorter or longer period).
    (ii) For those requests for a variance from effluent limitations not 
based on effluent limitation guidelines, the request need only comply 
with paragraph (m)(2)(i)(B) of this section and need not be preceded by 
an initial request under paragraph (m)(2)(i)(A) of this section.
    (3)-(4) [Reserved]
    (5) Water quality related effluent limitations. A modification under 
section 302(b)(2) of requirements under section 302(a) for achieving 
water quality related effluent limitations may be requested no later 
than the close of the public comment period under Sec. 124.10 on the 
permit from which the modification is sought.
    (6) Thermal discharges. A variance under CWA section 316(a) for the 
thermal component of any discharge must be filed with a timely 
application for a permit under this section, except that if thermal 
effluent limitations are established under CWA section 402(a)(1) or are 
based on water quality standards the request for a variance may be filed 
by the close of the public comment period under Sec. 124.10. A copy of 
the request as required under 40 CFR part 125, subpart H, shall be sent 
simultaneously to the appropriate State or interstate certifying agency 
as required under 40 CFR part 125. (See Sec. 124.65 for special 
procedures for section 316(a) thermal variances.)
    (n) Variance requests by POTWs. A discharger which is a publicly 
owned treatment works (POTW) may request a variance from otherwise 
applicable effluent limitations under any of the following statutory 
provisions as specified in this paragraph:
    (1) Discharges into marine waters. A request for a modification 
under CWA section 301(h) of requirements of CWA section 301(b)(1)(B) for 
discharges into marine waters must be filed in accordance with the 
requirements of 40 CFR part 125, subpart G.

[[Page 187]]

    (2) [Reserved]
    (3) Water quality based effluent limitation. A modification under 
CWA section 302(b)(2) of the requirements under section 302(a) for 
achieving water quality based effluent limitations shall be requested no 
later than the close of the public comment period under Sec. 124.10 on 
the permit from which the modification is sought.
    (o) Expedited variance procedures and time extensions. (1) 
Notwithstanding the time requirements in paragraphs (m) and (n) of this 
section, the Director may notify a permit applicant before a draft 
permit is issued under Sec. 124.6 that the draft permit will likely 
contain limitations which are eligible for variances. In the notice the 
Director may require the applicant as a condition of consideration of 
any potential variance request to submit a request explaining how the 
requirements of part 125 applicable to the variance have been met and 
may require its submission within a specified reasonable time after 
receipt of the notice. The notice may be sent before the permit 
application has been submitted. The draft or final permit may contain 
the alternative limitations which may become effective upon final grant 
of the variance.
    (2) A discharger who cannot file a timely complete request required 
under paragraph (m)(2)(i)(B) or (m)(2)(ii) of this section may request 
an extension. The extension may be granted or denied at the discretion 
of the Director. Extensions shall be no more than 6 months in duration.
    (p) Recordkeeping. Except for information required by paragraph 
(d)(3)(ii) of this section, which shall be retained for a period of at 
least five years from the date the application is signed (or longer as 
required by 40 CFR part 503), applicants shall keep records of all data 
used to complete permit applications and any supplemental information 
submitted under this section for a period of at least 3 years from the 
date the application is signed.
    (q) Sewage sludge management. All TWTDS subject to paragraph 
(c)(2)(i) of this section must provide the information in this paragraph 
to the Director, using Form 2S or another application form approved by 
the Director. New applicants must submit all information available at 
the time of permit application. The information may be provided by 
referencing information previously submitted to the Director. The 
Director may waive any requirement of this paragraph if he or she has 
access to substantially identical information. The Director may also 
waive any requirement of this paragraph that is not of material concern 
for a specific permit, if approved by the Regional Administrator. The 
waiver request to the Regional Administrator must include the State's 
justification for the waiver. A Regional Administrator's disapproval of 
a State's proposed waiver does not constitute final Agency action, but 
does provide notice to the State and permit applicant(s) that EPA may 
object to any State-issued permit issued in the absence of the required 
information.
    (1) Facility information. All applicants must submit the following 
information:
    (i) The name, mailing address, and location of the TWTDS for which 
the application is submitted;
    (ii) Whether the facility is a Class I Sludge Management Facility;
    (iii) The design flow rate (in million gallons per day);
    (iv) The total population served; and
    (v) The TWTDS's status as Federal, State, private, public, or other 
entity;
    (2) Applicant information. All applicants must submit the following 
information:
    (i) The name, mailing address, and telephone number of the 
applicant; and
    (ii) Indication whether the applicant is the owner, operator, or 
both;
    (3) Permit information. All applicants must submit the facility's 
NPDES permit number, if applicable, and a listing of all other Federal, 
State, and local permits or construction approvals received or applied 
for under any of the following programs:
    (i) Hazardous Waste Management program under the Resource 
Conservation and Recovery Act (RCRA);
    (ii) UIC program under the Safe Drinking Water Act (SDWA);
    (iii) NPDES program under the Clean Water Act (CWA);

[[Page 188]]

    (iv) Prevention of Significant Deterioration (PSD) program under the 
Clean Air Act;
    (v) Nonattainment program under the Clean Air Act;
    (vi) National Emission Standards for Hazardous Air Pollutants 
(NESHAPS) preconstruction approval under the Clean Air Act;
    (vii) Dredge or fill permits under section 404 of CWA;
    (viii) Other relevant environmental permits, including State or 
local permits;
    (4) Indian country. All applicants must identify any generation, 
treatment, storage, land application, or disposal of sewage sludge that 
occurs in Indian country;
    (5) Topographic map. All applicants must submit a topographic map 
(or other map if a topographic map is unavailable) extending one mile 
beyond property boundaries of the facility and showing the following 
information:
    (i) All sewage sludge management facilities, including on-site 
treatment, storage, and disposal sites; and
    (ii) Wells, springs, and other surface water bodies that are within 
\1/4\ mile of the property boundaries and listed in public records or 
otherwise known to the applicant;
    (6) Sewage sludge handling. All applicants must submit a line 
drawing and/or a narrative description that identifies all sewage sludge 
management practices employed during the term of the permit, including 
all units used for collecting, dewatering, storing, or treating sewage 
sludge, the destination(s) of all liquids and solids leaving each such 
unit, and all processes used for pathogen reduction and vector 
attraction reduction;
    (7) Sewage sludge quality. The applicant must submit sewage sludge 
monitoring data for the pollutants for which limits in sewage sludge 
have been established in 40 CFR part 503 for the applicant's use or 
disposal practices on the date of permit application.
    (i) The Director may require sampling for additional pollutants, as 
appropriate, on a case-by-case basis;
    (ii) Applicants must provide data from a minimum of three samples 
taken within four and one-half years prior to the date of the permit 
application. Samples must be representative of the sewage sludge and 
should be taken at least one month apart. Existing data may be used in 
lieu of sampling done solely for the purpose of this application;
    (iii) Applicants must collect and analyze samples in accordance with 
analytical methods approved under SW-846 unless an alternative has been 
specified in an existing sewage sludge permit;
    (iv) The monitoring data provided must include at least the 
following information for each parameter:
    (A) Average monthly concentration for all samples (mg/kg dry 
weight), based upon actual sample values;
    (B) The analytical method used; and
    (C) The method detection level.
    (8) Preparation of sewage sludge. If the applicant is a ``person who 
prepares'' sewage sludge, as defined at 40 CFR 503.9(r), the applicant 
must provide the following information:
    (i) If the applicant's facility generates sewage sludge, the total 
dry metric tons per 365-day period generated at the facility;
    (ii) If the applicant's facility receives sewage sludge from another 
facility, the following information for each facility from which sewage 
sludge is received:
    (A) The name, mailing address, and location of the other facility;
    (B) The total dry metric tons per 365-day period received from the 
other facility; and
    (C) A description of any treatment processes occurring at the other 
facility, including blending activities and treatment to reduce 
pathogens or vector attraction characteristics;
    (iii) If the applicant's facility changes the quality of sewage 
sludge through blending, treatment, or other activities, the following 
information:
    (A) Whether the Class A pathogen reduction requirements in 40 CFR 
503.32(a) or the Class B pathogen reduction requirements in 40 CFR 
503.32(b) are met, and a description of any treatment processes used to 
reduce pathogens in sewage sludge;
    (B) Whether any of the vector attraction reduction options of 40 CFR 
503.33(b)(1) through (b)(8) are met, and

[[Page 189]]

a description of any treatment processes used to reduce vector 
attraction properties in sewage sludge; and
    (C) A description of any other blending, treatment, or other 
activities that change the quality of sewage sludge;
    (iv) If sewage sludge from the applicant's facility meets the 
ceiling concentrations in 40 CFR 503.13(b)(1), the pollutant 
concentrations in Sec. 503.13(b)(3), the Class A pathogen requirements 
in Sec. 503.32(a), and one of the vector attraction reduction 
requirements in Sec. 503.33(b)(1) through (b)(8), and if the sewage 
sludge is applied to the land, the applicant must provide the total dry 
metric tons per 365-day period of sewage sludge subject to this 
paragraph that is applied to the land;
    (v) If sewage sludge from the applicant's facility is sold or given 
away in a bag or other container for application to the land, and the 
sewage sludge is not subject to paragraph (q)(8)(iv) of this section, 
the applicant must provide the following information:
    (A) The total dry metric tons per 365-day period of sewage sludge 
subject to this paragraph that is sold or given away in a bag or other 
container for application to the land; and
    (B) A copy of all labels or notices that accompany the sewage sludge 
being sold or given away;
    (vi) If sewage sludge from the applicant's facility is provided to 
another ``person who prepares,'' as defined at 40 CFR 503.9(r), and the 
sewage sludge is not subject to paragraph (q)(8)(iv) of this section, 
the applicant must provide the following information for each facility 
receiving the sewage sludge:
    (A) The name and mailing address of the receiving facility;
    (B) The total dry metric tons per 365-day period of sewage sludge 
subject to this paragraph that the applicant provides to the receiving 
facility;
    (C) A description of any treatment processes occurring at the 
receiving facility, including blending activities and treatment to 
reduce pathogens or vector attraction characteristic;
    (D) A copy of the notice and necessary information that the 
applicant is required to provide the receiving facility under 40 CFR 
503.12(g); and
    (E) If the receiving facility places sewage sludge in bags or 
containers for sale or give-away to application to the land, a copy of 
any labels or notices that accompany the sewage sludge;
    (9) Land application of bulk sewage sludge. If sewage sludge from 
the applicant's facility is applied to the land in bulk form, and is not 
subject to paragraphs (q)(8)(iv), (v), or (vi) of this section, the 
applicant must provide the following information:
    (i) The total dry metric tons per 365-day period of sewage sludge 
subject to this paragraph that is applied to the land;
    (ii) If any land application sites are located in States other than 
the State where the sewage sludge is prepared, a description of how the 
applicant will notify the permitting authority for the State(s) where 
the land application sites are located;
    (iii) The following information for each land application site that 
has been identified at the time of permit application:
    (A) The name (if any), and location for the land application site;
    (B) The site's latitude and longitude to the nearest second, and 
method of determination;
    (C) A topographic map (or other map if a topographic map is 
unavailable) that shows the site's location;
    (D) The name, mailing address, and telephone number of the site 
owner, if different from the applicant;
    (E) The name, mailing address, and telephone number of the person 
who applies sewage sludge to the site, if different from the applicant;
    (F) Whether the site is agricultural land, forest, a public contact 
site, or a reclamation site, as such site types are defined under 40 CFR 
503.11;
    (G) The type of vegetation grown on the site, if known, and the 
nitrogen requirement for this vegetation;
    (H) Whether either of the vector attraction reduction options of 40 
CFR 503.33(b)(9) or (b)(10) is met at the site, and a description of any 
procedures employed at the time of use to reduce vector attraction 
properties in sewage sludge; and
    (I) Other information that describes how the site will be managed, 
as specified by the permitting authority.
    (iv) The following information for each land application site that 
has

[[Page 190]]

been identified at the time of permit application, if the applicant 
intends to apply bulk sewage sludge subject to the cumulative pollutant 
loading rates in 40 CFR 503.13(b)(2) to the site:
    (A) Whether the applicant has contacted the permitting authority in 
the State where the bulk sewage sludge subject to Sec. 503.13(b)(2) 
will be applied, to ascertain whether bulk sewage sludge subject to 
Sec. 503.13(b)(2) has been applied to the site on or since July 20, 
1993, and if so, the name of the permitting authority and the name and 
phone number of a contact person at the permitting authority;
    (B) Identification of facilities other than the applicant's facility 
that have sent, or are sending, sewage sludge subject to the cumulative 
pollutant loading rates in Sec. 503.13(b)(2) to the site since July 20, 
1993, if, based on the inquiry in paragraph (q)(iv)(A), bulk sewage 
sludge subject to cumulative pollutant loading rates in Sec. 
503.13(b)(2) has been applied to the site since July 20, 1993;
    (v) If not all land application sites have been identified at the 
time of permit application, the applicant must submit a land application 
plan that, at a minimum:
    (A) Describes the geographical area covered by the plan;
    (B) Identifies the site selection criteria;
    (C) Describes how the site(s) will be managed;
    (D) Provides for advance notice to the permit authority of specific 
land application sites and reasonable time for the permit authority to 
object prior to land application of the sewage sludge; and
    (E) Provides for advance public notice of land application sites in 
the manner prescribed by State and local law. When State or local law 
does not require advance public notice, it must be provided in a manner 
reasonably calculated to apprize the general public of the planned land 
application.
    (10) Surface disposal. If sewage sludge from the applicant's 
facility is placed on a surface disposal site, the applicant must 
provide the following information:
    (i) The total dry metric tons of sewage sludge from the applicant's 
facility that is placed on surface disposal sites per 365-day period;
    (ii) The following information for each surface disposal site 
receiving sewage sludge from the applicant's facility that the applicant 
does not own or operate:
    (A) The site name or number, contact person, mailing address, and 
telephone number for the surface disposal site; and
    (B) The total dry metric tons from the applicant's facility per 365-
day period placed on the surface disposal site;
    (iii) The following information for each active sewage sludge unit 
at each surface disposal site that the applicant owns or operates:
    (A) The name or number and the location of the active sewage sludge 
unit;
    (B) The unit's latitude and longitude to the nearest second, and 
method of determination;
    (C) If not already provided, a topographic map (or other map if a 
topographic map is unavailable) that shows the unit's location;
    (D) The total dry metric tons placed on the active sewage sludge 
unit per 365-day period;
    (E) The total dry metric tons placed on the active sewage sludge 
unit over the life of the unit;
    (F) A description of any liner for the active sewage sludge unit, 
including whether it has a maximum permeability of 1 x 10-7 
cm/sec;
    (G) A description of any leachate collection system for the active 
sewage sludge unit, including the method used for leachate disposal, and 
any Federal, State, and local permit number(s) for leachate disposal;
    (H) If the active sewage sludge unit is less than 150 meters from 
the property line of the surface disposal site, the actual distance from 
the unit boundary to the site property line;
    (I) The remaining capacity (dry metric tons) for the active sewage 
sludge unit;
    (J) The date on which the active sewage sludge unit is expected to 
close, if such a date has been identified;
    (K) The following information for any other facility that sends 
sewage sludge to the active sewage sludge unit:

[[Page 191]]

    (1) The name, contact person, and mailing address of the facility; 
and
    (2) Available information regarding the quality of the sewage sludge 
received from the facility, including any treatment at the facility to 
reduce pathogens or vector attraction characteristics;
    (L) Whether any of the vector attraction reduction options of 40 CFR 
503.33(b)(9) through (b)(11) is met at the active sewage sludge unit, 
and a description of any procedures employed at the time of disposal to 
reduce vector attraction properties in sewage sludge;
    (M) The following information, as applicable to any ground-water 
monitoring occurring at the active sewage sludge unit:
    (1) A description of any ground-water monitoring occurring at the 
active sewage sludge unit;
    (2) Any available ground-water monitoring data, with a description 
of the well locations and approximate depth to ground water;
    (3) A copy of any ground-water monitoring plan that has been 
prepared for the active sewage sludge unit;
    (4) A copy of any certification that has been obtained from a 
qualified ground-water scientist that the aquifer has not been 
contaminated; and
    (N) If site-specific pollutant limits are being sought for the 
sewage sludge placed on this active sewage sludge unit, information to 
support such a request;
    (11) Incineration. If sewage sludge from the applicant's facility is 
fired in a sewage sludge incinerator, the applicant must provide the 
following information:
    (i) The total dry metric tons of sewage sludge from the applicant's 
facility that is fired in sewage sludge incinerators per 365-day period;
    (ii) The following information for each sewage sludge incinerator 
firing the applicant's sewage sludge that the applicant does not own or 
operate:
    (A) The name and/or number, contact person, mailing address, and 
telephone number of the sewage sludge incinerator; and
    (B) The total dry metric tons from the applicant's facility per 365-
day period fired in the sewage sludge incinerator;
    (iii) The following information for each sewage sludge incinerator 
that the applicant owns or operates:
    (A) The name and/or number and the location of the sewage sludge 
incinerator;
    (B) The incinerator's latitude and longitude to the nearest second, 
and method of determination;
    (C) The total dry metric tons per 365-day period fired in the sewage 
sludge incinerator;
    (D) Information, test data, and documentation of ongoing operating 
parameters indicating that compliance with the National Emission 
Standard for Beryllium in 40 CFR part 61 will be achieved;
    (E) Information, test data, and documentation of ongoing operating 
parameters indicating that compliance with the National Emission 
Standard for Mercury in 40 CFR part 61 will be achieved;
    (F) The dispersion factor for the sewage sludge incinerator, as well 
as modeling results and supporting documentation;
    (G) The control efficiency for parameters regulated in 40 CFR 
503.43, as well as performance test results and supporting 
documentation;
    (H) Information used to calculate the risk specific concentration 
(RSC) for chromium, including the results of incinerator stack tests for 
hexavalent and total chromium concentrations, if the applicant is 
requesting a chromium limit based on a site-specific RSC value;
    (I) Whether the applicant monitors total hydrocarbons (THC) or 
Carbon Monoxide (CO) in the exit gas for the sewage sludge incinerator;
    (J) The type of sewage sludge incinerator;
    (K) The maximum performance test combustion temperature, as obtained 
during the performance test of the sewage sludge incinerator to 
determine pollutant control efficiencies;
    (L) The following information on the sewage sludge feed rate used 
during the performance test:
    (1) Sewage sludge feed rate in dry metric tons per day;
    (2) Identification of whether the feed rate submitted is average use 
or maximum design; and

[[Page 192]]

    (3) A description of how the feed rate was calculated;
    (M) The incinerator stack height in meters for each stack, including 
identification of whether actual or creditable stack height was used;
    (N) The operating parameters for the sewage sludge incinerator air 
pollution control device(s), as obtained during the performance test of 
the sewage sludge incinerator to determine pollutant control 
efficiencies;
    (O) Identification of the monitoring equipment in place, including 
(but not limited to) equipment to monitor the following:
    (1) Total hydrocarbons or Carbon Monoxide;
    (2) Percent oxygen;
    (3) Percent moisture; and
    (4) Combustion temperature; and
    (P) A list of all air pollution control equipment used with this 
sewage sludge incinerator;
    (12) Disposal in a municipal solid waste landfill. If sewage sludge 
from the applicant's facility is sent to a municipal solid waste 
landfill (MSWLF), the applicant must provide the following information 
for each MSWLF to which sewage sludge is sent:
    (i) The name, contact person, mailing address, location, and all 
applicable permit numbers of the MSWLF;
    (ii) The total dry metric tons per 365-day period sent from this 
facility to the MSWLF;
    (iii) A determination of whether the sewage sludge meets applicable 
requirements for disposal of sewage sludge in a MSWLF, including the 
results of the paint filter liquids test and any additional requirements 
that apply on a site-specific basis; and
    (iv) Information, if known, indicating whether the MSWLF complies 
with criteria set forth in 40 CFR part 258;
    (13) Contractors. All applicants must provide the name, mailing 
address, telephone number, and responsibilities of all contractors 
responsible for any operational or maintenance aspects of the facility 
related to sewage sludge generation, treatment, use, or disposal;
    (14) Other information. At the request of the permitting authority, 
the applicant must provide any other information necessary to determine 
the appropriate standards for permitting under 40 CFR part 503, and must 
provide any other information necessary to assess the sewage sludge use 
and disposal practices, determine whether to issue a permit, or identify 
appropriate permit requirements; and
    (15) Signature. All applications must be signed by a certifying 
official in compliance with Sec. 122.22.

    [Note 1: At 46 FR 2046, Jan. 8, 1981, the Environmental Protection 
Agency suspended until further notice Sec. 122.21(g)(7)(v)(A) and the 
corresponding portions of Item V-C of the NPDES application Form 2C as 
they apply to coal mines. This suspension continues in effect.]
    [Note 2: At 46 FR 22585, Apr. 20, 1981, the Environmental Protection 
Agency suspended until further notice Sec. 122.21(g)(7)(v)(A) and the 
corresponding portions of Item V-C of the NPDES application Form 2C as 
they apply to:
    a. Testing and reporting for all four organic fractions in the 
Greige Mills Subcategory of the Textile Mills industry (subpart C--Low 
water use processing of 40 CFR part 410), and testing and reporting for 
the pesticide fraction in all other subcategories of this industrial 
category.
    b. Testing and reporting for the volatile, base/neutral and 
pesticide fractions in the Base and Precious Metals Subcategory of the 
Ore Mining and Dressing industry (subpart B of 40 CFR part 440), and 
testing and reporting for all four fractions in all other subcategories 
of this industrial category.
    c. Testing and reporting for all four GC/MS fractions in the 
Porcelain Enameling industry.

This revision continues that suspension.] \1\

    [Note 3: At 46 FR 35090, July 1, 1981, the Environmental Protection 
Agency suspended until further notice Sec. 122.21(g)(7)(v)(A) and the 
corresponding portions of Item V-C of the NPDES application Form 2C as 
they apply to:
    a. Testing and reporting for the pesticide fraction in the Tall Oil 
Rosin Subcategory (subpart D) and Rosin-Based Derivatives Subcategory 
(subpart F) of the Gum and Wood Chemicals industry (40 CFR part 454), 
and testing and reporting for the pesticide and base-neutral fractions 
in all other subcategories of this industrial category.
    b. Testing and reporting for the pesticide fraction in the Leather 
Tanning and Finishing, Paint and Ink Formulation, and Photographic 
Supplies industrial categories.
    c. Testing and reporting for the acid, base/neutral and pesticide 
fractions in the Petroleum Refining industrial category.
    d. Testing and reporting for the pesticide fraction in the 
Papergrade Sulfite subcategories (subparts J and U) of the Pulp and 
Paper industry (40 CFR part 430); testing and

[[Page 193]]

reporting for the base/neutral and pesticide fractions in the following 
subcategories: Deink (subpart Q), Dissolving Kraft (subpart F), and 
Paperboard from Waste Paper (subpart E); testing and reporting for the 
volatile, base/neutral and pesticide fractions in the following 
subcategories: BCT Bleached Kraft (subpart H), Semi-Chemical (subparts B 
and C), and Nonintegrated-Fine Papers (subpart R); and testing and 
reporting for the acid, base/neutral, and pesticide fractions in the 
following subcategories: Fine Bleached Kraft (subpart I), Dissolving 
Sulfite Pulp (subpart K), Groundwood-Fine Papers (subpart O), Market 
Bleached Kraft (subpart G), Tissue from Wastepaper (subpart T), and 
Nonintegrated-Tissue Papers (subpart S).
    e. Testing and reporting for the base/neutral fraction in the Once-
Through Cooling Water, Fly Ash and Bottom Ash Transport Water process 
wastestreams of the Steam Electric Power Plant industrial category.

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.
---------------------------------------------------------------------------

    (r) Application requirements for facilities with cooling water 
intake structures--(1)(i) New facilities with new or modified cooling 
water intake structures. New facilities (other than offshore oil and gas 
extraction facilities) with cooling water intake structures as defined 
in part 125, subpart I, of this chapter must submit to the Director for 
review the information required under paragraphs (r)(2) (except 
(r)(2)(iv)), (3), and (4) of this section and Sec. 125.86 of this 
chapter as part of their application. New offshore oil and gas 
extraction facilities with cooling water intake structures as defined in 
part 125, subpart N, of this chapter that are fixed facilities must 
submit to the Director for review the information required under 
paragraphs (r)(2) (except (r)(2)(iv)), (3), and (4) of this section and 
Sec. 125.136 of this chapter as part of their application. New offshore 
oil and gas extraction facilities that are not fixed facilities must 
submit to the Director for review only the information required under 
paragraphs (r)(2)(iv), (r)(3) (except (r)(3)(ii)), and Sec. 125.136 of 
this chapter as part of their application. Requests for alternative 
requirements under Sec. 125.85 or Sec. 125.135 of this chapter must be 
submitted with your permit application.
    (ii) Phase II existing facilities. Phase II existing facilities as 
defined in part 125, subpart J, of this chapter must submit to the 
Director for review the information required under paragraphs (r)(2), 
(3), and (5) of this section and all applicable provisions of Sec. 
125.95 of this chapter as part of their application except for the 
Proposal for Information Collection which must be provided in accordance 
with Sec. 125.95(b)(1).
    (2) Source water physical data. These include:
    (i) A narrative description and scaled drawings showing the physical 
configuration of all source water bodies used by your facility, 
including areal dimensions, depths, salinity and temperature regimes, 
and other documentation that supports your determination of the water 
body type where each cooling water intake structure is located;
    (ii) Identification and characterization of the source waterbody's 
hydrological and geomorphological features, as well as the methods you 
used to conduct any physical studies to determine your intake's area of 
influence within the waterbody and the results of such studies;
    (iii) Locational maps; and
    (iv) For new offshore oil and gas facilities that are not fixed 
facilities, a narrative description and/or locational maps providing 
information on predicted locations within the waterbody during the 
permit term in sufficient detail for the Director to determine the 
appropriateness of additional impingement requirements under Sec. 
125.134(b)(4).
    (3) Cooling water intake structure data. These include:
    (i) A narrative description of the configuration of each of your 
cooling water intake structures and where it is located in the water 
body and in the water column;
    (ii) Latitude and longitude in degrees, minutes, and seconds for 
each of your cooling water intake structures;
    (iii) A narrative description of the operation of each of your 
cooling water intake structures, including design intake flows, daily 
hours of operation, number of days of the year in operation and seasonal 
changes, if applicable;
    (iv) A flow distribution and water balance diagram that includes all 
sources of water to the facility, recirculating flows, and discharges; 
and
    (v) Engineering drawings of the cooling water intake structure.

[[Page 194]]

    (4) Source water baseline biological characterization data. This 
information is required to characterize the biological community in the 
vicinity of the cooling water intake structure and to characterize the 
operation of the cooling water intake structures. The Director may also 
use this information in subsequent permit renewal proceedings to 
determine if your Design and Construction Technology Plan as required in 
Sec. 125.86(b)(4) or Sec. 125.136(b)(3) of this chapter should be 
revised. This supporting information must include existing data (if they 
are available). However, you may supplement the data using newly 
conducted field studies if you choose to do so. The information you 
submit must include:
    (i) A list of the data in paragraphs (r)(4)(ii) through (vi) of this 
section that are not available and efforts made to identify sources of 
the data;
    (ii) A list of species (or relevant taxa) for all life stages and 
their relative abundance in the vicinity of the cooling water intake 
structure;
    (iii) Identification of the species and life stages that would be 
most susceptible to impingement and entrainment. Species evaluated 
should include the forage base as well as those most important in terms 
of significance to commercial and recreational fisheries;
    (iv) Identification and evaluation of the primary period of 
reproduction, larval recruitment, and period of peak abundance for 
relevant taxa;
    (v) Data representative of the seasonal and daily activities (e.g., 
feeding and water column migration) of biological organisms in the 
vicinity of the cooling water intake structure;
    (vi) Identification of all threatened, endangered, and other 
protected species that might be susceptible to impingement and 
entrainment at your cooling water intake structures;
    (vii) Documentation of any public participation or consultation with 
Federal or State agencies undertaken in development of the plan; and
    (viii) If you supplement the information requested in paragraph 
(r)(4)(i) of this section with data collected using field studies, 
supporting documentation for the Source Water Baseline Biological 
Characterization must include a description of all methods and quality 
assurance procedures for sampling, and data analysis including a 
description of the study area; taxonomic identification of sampled and 
evaluated biological assemblages (including all life stages of fish and 
shellfish); and sampling and data analysis methods. The sampling and/or 
data analysis methods you use must be appropriate for a quantitative 
survey and based on consideration of methods used in other biological 
studies performed within the same source water body. The study area 
should include, at a minimum, the area of influence of the cooling water 
intake structure.
    (5) Cooling water system data. Phase II existing facilities as 
defined in part 125, subpart J of this chapter must provide the 
following information for each cooling water intake structure they use:
    (i) A narrative description of the operation of the cooling water 
system, its relationship to cooling water intake structures, the 
proportion of the design intake flow that is used in the system, the 
number of days of the year the cooling water system is in operation and 
seasonal changes in the operation of the system, if applicable; and
    (ii) Design and engineering calculations prepared by a qualified 
professional and supporting data to support the description required by 
paragraph (r)(5)(i) of this section.

[48 FR 14153, Apr. 1, 1983]

    Editorial Note: For Federal Register citations affecting Sec. 
122.21, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

    Effective Date Note: At 72 FR 37109, July 9, 2007, Sec. 
122.21(r)(1)(ii) and (r)(5) were suspended.



Sec. 122.22  Signatories to permit applications and reports (applicable to 

State programs, see Sec. 123.25).

    (a) Applications. All permit applications shall be signed as 
follows:
    (1) For a corporation. By a responsible corporate officer. For the 
purpose of this section, a responsible corporate officer means: (i) A 
president, secretary, treasurer, or vice-president of the corporation in 
charge of a principal business function, or any other person who perfoms 
similar policy- or decision-

[[Page 195]]

making functions for the corporation, or (ii) the manager of one or more 
manufacturing, production, or operating facilities, provided, the 
manager is authorized to make management decisions which govern the 
operation of the regulated facility including having the explicit or 
implicit duty of making major capital investment recommendations, and 
initiating and directing other comprehensive measures to assure long 
term environmental compliance with environmental laws and regulations; 
the manager can ensure that the necessary systems are established or 
actions taken to gather complete and accurate information for permit 
application requirements; and where authority to sign documents has been 
assigned or delegated to the manager in accordance with corporate 
procedures.
    Note: EPA does not require specific assignments or delegations of 
authority to responsible corporate officers identified in Sec. 
122.22(a)(1)(i). The Agency will presume that these responsible 
corporate officers have the requisite authority to sign permit 
applications unless the corporation has notified the Director to the 
contrary. Corporate procedures governing authority to sign permit 
applications may provide for assignment or delegation to applicable 
corporate positions under Sec. 122.22(a)(1)(ii) rather than to specific 
individuals.
    (2) For a partnership or sole proprietorship. By a general partner 
or the proprietor, respectively; or
    (3) For a municipality, State, Federal, or other public agency. By 
either a principal executive officer or ranking elected official. For 
purposes of this section, a principal executive officer of a Federal 
agency includes: (i) The chief executive officer of the agency, or (ii) 
a senior executive officer having responsibility for the overall 
operations of a principal geographic unit of the agency (e.g., Regional 
Administrators of EPA).
    (b) All reports required by permits, and other information requested 
by the Director shall be signed by a person described in paragraph (a) 
of this section, or by a duly authorized representative of that person. 
A person is a duly authorized representative only if:
    (1) The authorization is made in writing by a person described in 
paragraph (a) of this section;
    (2) The authorization specifies either an individual or a position 
having responsibility for the overall operation of the regulated 
facility or activity such as the position of plant manager, operator of 
a well or a well field, superintendent, position of equivalent 
responsibility, or an individual or position having overall 
responsibility for environmental matters for the company, (A duly 
authorized representative may thus be either a named individual or any 
individual occupying a named position.) and,
    (3) The written authorization is submitted to the Director.
    (c) Changes to authorization. If an authorization under paragraph 
(b) of this section is no longer accurate because a different individual 
or position has responsibility for the overall operation of the 
facility, a new authorization satisfying the requirements of paragraph 
(b) of this section must be submitted to the Director prior to or 
together with any reports, information, or applications to be signed by 
an authorized representative.
    (d) Certification. Any person signing a document under paragraph (a) 
or (b) of this section shall make the following certification:

    I certify under penalty of law that this document and all 
attachments were prepared under my direction or supervision in 
accordance with a system designed to assure that qualified personnel 
properly gather and evaluate the information submitted. Based on my 
inquiry of the person or persons who manage the system, or those persons 
directly responsible for gathering the information, the information 
submitted is, to the best of my knowledge and belief, true, accurate, 
and complete. I am aware that there are significant penalties for 
submitting false information, including the possibility of fine and 
imprisonment for knowing violations.

(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; 49 
FR 38047, Sept. 29, 1984; 50 FR 6941, Feb. 19, 1985; 55 FR 48063, Nov. 
16, 1990; 65 FR 30907, May 15, 2000]



Sec. 122.23  Concentrated animal feeding operations (applicable to State NPDES 

programs, see Sec. 123.25).

    (a) Scope. Concentrated animal feeding operations (CAFOs), as 
defined in

[[Page 196]]

paragraph (b) of this section or designated in accordance with paragraph 
(c) of this section, are point sources, subject to NPDES permitting 
requirements as provided in this section. Once an animal feeding 
operation is defined as a CAFO for at least one type of animal, the 
NPDES requirements for CAFOs apply with respect to all animals in 
confinement at the operation and all manure, litter, and process 
wastewater generated by those animals or the production of those 
animals, regardless of the type of animal.
    (b) Definitions applicable to this section:
    (1) Animal feeding operation (``AFO'') means a lot or facility 
(other than an aquatic animal production facility) where the following 
conditions are met:
    (i) Animals (other than aquatic animals) have been, are, or will be 
stabled or confined and fed or maintained for a total of 45 days or more 
in any 12-month period, and
    (ii) Crops, vegetation, forage growth, or post-harvest residues are 
not sustained in the normal growing season over any portion of the lot 
or facility.
    (2) Concentrated animal feeding operation (``CAFO'') means an AFO 
that is defined as a Large CAFO or as a Medium CAFO by the terms of this 
paragraph, or that is designated as a CAFO in accordance with paragraph 
(c) of this section. Two or more AFOs under common ownership are 
considered to be a single AFO for the purposes of determining the number 
of animals at an operation, if they adjoin each other or if they use a 
common area or system for the disposal of wastes.
    (3) The term land application area means land under the control of 
an AFO owner or operator, whether it is owned, rented, or leased, to 
which manure, litter or process wastewater from the production area is 
or may be applied.
    (4) Large concentrated animal feeding operation (``Large CAFO''). An 
AFO is defined as a Large CAFO if it stables or confines as many as or 
more than the numbers of animals specified in any of the following 
categories:
    (i) 700 mature dairy cows, whether milked or dry;
    (ii) 1,000 veal calves;
    (iii) 1,000 cattle other than mature dairy cows or veal calves. 
Cattle includes but is not limited to heifers, steers, bulls and cow/
calf pairs;
    (iv) 2,500 swine each weighing 55 pounds or more;
    (v) 10,000 swine each weighing less than 55 pounds;
    (vi) 500 horses;
    (vii) 10,000 sheep or lambs;
    (viii) 55,000 turkeys;
    (ix) 30,000 laying hens or broilers, if the AFO uses a liquid manure 
handling system;
    (x) 125,000 chickens (other than laying hens), if the AFO uses other 
than a liquid manure handling system;
    (xi) 82,000 laying hens, if the AFO uses other than a liquid manure 
handling system;
    (xii) 30,000 ducks (if the AFO uses other than a liquid manure 
handling system); or
    (xiii) 5,000 ducks (if the AFO uses a liquid manure handling 
system).
    (5) The term manure is defined to include manure, bedding, compost 
and raw materials or other materials commingled with manure or set aside 
for disposal.
    (6) Medium concentrated animal feeding operation (``Medium CAFO''). 
The term Medium CAFO includes any AFO with the type and number of 
animals that fall within any of the ranges listed in paragraph (b)(6)(i) 
of this section and which has been defined or designated as a CAFO. An 
AFO is defined as a Medium CAFO if:
    (i) The type and number of animals that it stables or confines falls 
within any of the following ranges:
    (A) 200 to 699 mature dairy cows, whether milked or dry;
    (B) 300 to 999 veal calves;
    (C) 300 to 999 cattle other than mature dairy cows or veal calves. 
Cattle includes but is not limited to heifers, steers, bulls and cow/
calf pairs;
    (D) 750 to 2,499 swine each weighing 55 pounds or more;
    (E) 3,000 to 9,999 swine each weighing less than 55 pounds;
    (F) 150 to 499 horses;
    (G) 3,000 to 9,999 sheep or lambs;
    (H) 16,500 to 54,999 turkeys;
    (I) 9,000 to 29,999 laying hens or broilers, if the AFO uses a 
liquid manure handling system;

[[Page 197]]

    (J) 37,500 to 124,999 chickens (other than laying hens), if the AFO 
uses other than a liquid manure handling system;
    (K) 25,000 to 81,999 laying hens, if the AFO uses other than a 
liquid manure handling system;
    (L) 10,000 to 29,999 ducks (if the AFO uses other than a liquid 
manure handling system); or
    (M) 1,500 to 4,999 ducks (if the AFO uses a liquid manure handling 
system); and
    (ii) Either one of the following conditions are met:
    (A) Pollutants are discharged into waters of the United States 
through a man-made ditch, flushing system, or other similar man-made 
device; or
    (B) Pollutants are discharged directly into waters of the United 
States which originate outside of and pass over, across, or through the 
facility or otherwise come into direct contact with the animals confined 
in the operation.
    (7) Process wastewater means water directly or indirectly used in 
the operation of the AFO for any or all of the following: spillage or 
overflow from animal or poultry watering systems; washing, cleaning, or 
flushing pens, barns, manure pits, or other AFO facilities; direct 
contact swimming, washing, or spray cooling of animals; or dust control. 
Process wastewater also includes any water which comes into contact with 
any raw materials, products, or byproducts including manure, litter, 
feed, milk, eggs or bedding.
    (8) Production area means that part of an AFO that includes the 
animal confinement area, the manure storage area, the raw materials 
storage area, and the waste containment areas. The animal confinement 
area includes but is not limited to open lots, housed lots, feedlots, 
confinement houses, stall barns, free stall barns, milkrooms, milking 
centers, cowyards, barnyards, medication pens, walkers, animal walkways, 
and stables. The manure storage area includes but is not limited to 
lagoons, runoff ponds, storage sheds, stockpiles, under house or pit 
storages, liquid impoundments, static piles, and composting piles. The 
raw materials storage area includes but is not limited to feed silos, 
silage bunkers, and bedding materials. The waste containment area 
includes but is not limited to settling basins, and areas within berms 
and diversions which separate uncontaminated storm water. Also included 
in the definition of production area is any egg washing or egg 
processing facility, and any area used in the storage, handling, 
treatment, or disposal of mortalities.
    (9) Small concentrated animal feeding operation (``Small CAFO''). An 
AFO that is designated as a CAFO and is not a Medium CAFO.
    (c) How may an AFO be designated as a CAFO? The appropriate 
authority (i.e., State Director or Regional Administrator, or both, as 
specified in paragraph (c)(1) of this section) may designate any AFO as 
a CAFO upon determining that it is a significant contributor of 
pollutants to waters of the United States.
    (1) Who may designate?--(i) Approved States. In States that are 
approved or authorized by EPA under Part 123, CAFO designations may be 
made by the State Director. The Regional Administrator may also 
designate CAFOs in approved States, but only where the Regional 
Administrator has determined that one or more pollutants in the AFO's 
discharge contributes to an impairment in a downstream or adjacent State 
or Indian country water that is impaired for that pollutant.
    (ii) States with no approved program. The Regional Administrator may 
designate CAFOs in States that do not have an approved program and in 
Indian country where no entity has expressly demonstrated authority and 
has been expressly authorized by EPA to implement the NPDES program.
    (2) In making this designation, the State Director or the Regional 
Administrator shall consider the following factors:
    (i) The size of the AFO and the amount of wastes reaching waters of 
the United States;
    (ii) The location of the AFO relative to waters of the United 
States;
    (iii) The means of conveyance of animal wastes and process waste 
waters into waters of the United States;

[[Page 198]]

    (iv) The slope, vegetation, rainfall, and other factors affecting 
the likelihood or frequency of discharge of animal wastes manure and 
process waste waters into waters of the United States; and
    (v) Other relevant factors.
    (3) No AFO shall be designated under this paragraph unless the State 
Director or the Regional Administrator has conducted an on-site 
inspection of the operation and determined that the operation should and 
could be regulated under the permit program. In addition, no AFO with 
numbers of animals below those established in paragraph (b)(6) of this 
section may be designated as a CAFO unless:
    (i) Pollutants are discharged into waters of the United States 
through a manmade ditch, flushing system, or other similar manmade 
device; or
    (ii) Pollutants are discharged directly into waters of the United 
States which originate outside of the facility and pass over, across, or 
through the facility or otherwise come into direct contact with the 
animals confined in the operation.
    (d) Who must seek coverage under an NPDES permit?--(1) Permit 
Requirement. The owner or operator of a CAFO must seek coverage under an 
NPDES permit if the CAFO discharges or proposes to discharge. A CAFO 
proposes to discharge if it is designed, constructed, operated, or 
maintained such that a discharge will occur. Specifically, the CAFO 
owner or operator must either apply for an individual NPDES permit or 
submit a notice of intent for coverage under an NPDES general permit. If 
the Director has not made a general permit available to the CAFO, the 
CAFO owner or operator must submit an application for an individual 
permit to the Director.
    (2) Information to submit with permit application or notice of 
intent. An application for an individual permit must include the 
information specified in Sec. 122.21. A notice of intent for a general 
permit must include the information specified in Sec. Sec. 122.21 and 
122.28.
    (3) Information to submit with permit application. A permit 
application for an individual permit must include the information 
specified in Sec. 122.21. A notice of intent for a general permit must 
include the information specified in Sec. Sec. 122.21 and 122.28.
    (e) Land application discharges from a CAFO are subject to NPDES 
requirements. The discharge of manure, litter or process wastewater to 
waters of the United States from a CAFO as a result of the application 
of that manure, litter or process wastewater by the CAFO to land areas 
under its control is a discharge from that CAFO subject to NPDES permit 
requirements, except where it is an agricultural storm water discharge 
as provided in 33 U.S.C. 1362(14). For purposes of this paragraph, where 
the manure, litter or process wastewater has been applied in accordance 
with site specific nutrient management practices that ensure appropriate 
agricultural utilization of the nutrients in the manure, litter or 
process wastewater, as specified in Sec. 122.42(e)(1)(vi)-(ix), a 
precipitation-related discharge of manure, litter or process wastewater 
from land areas under the control of a CAFO is an agricultural 
stormwater discharge.
    (1) For unpermitted Large CAFOs, a precipitation-related discharge 
of manure, litter, or process wastewater from land areas under the 
control of a CAFO shall be considered an agricultural stormwater 
discharge only where the manure, litter, or process wastewater has been 
land applied in accordance with site-specific nutrient management 
practices that ensure appropriate agricultural utilization of the 
nutrients in the manure, litter, or process wastewater, as specified in 
Sec. 122.42(e)(1)(vi) through (ix).
    (2) Unpermitted Large CAFOs must maintain documentation specified in 
Sec. 122.42(e)(1)(ix) either on site or at a nearby office, or 
otherwise make such documentation readily available to the Director or 
Regional Administrator upon request.
    (f) When must the owner or operator of a CAFO seek coverage under an 
NPDES permit? Any CAFO that is required to seek permit coverage under 
paragraph (d)(1) of this section must seek coverage when the CAFO 
proposes to discharge, unless a later deadline is specified below.
    (1) Operations defined as CAFOs prior to April 14, 2003. For 
operations defined as CAFOs under regulations that were

[[Page 199]]

in effect prior to April 14, 2003, the owner or operator must have or 
seek to obtain coverage under an NPDES permit as of April 14, 2003, and 
comply with all applicable NPDES requirements, including the duty to 
maintain permit coverage in accordance with paragraph (g) of this 
section.
    (2) Operations defined as CAFOs as of April 14, 2003, that were not 
defined as CAFOs prior to that date. For all operations defined as CAFOs 
as of April 14, 2003, that were not defined as CAFOs prior to that date, 
the owner or operator of the CAFO must seek to obtain coverage under an 
NPDES permit by February 27, 2009.
    (3) Operations that become defined as CAFOs after April 14, 2003, 
but which are not new sources. For a newly constructed CAFO and for an 
AFO that makes changes to its operations that result in its becoming 
defined as a CAFO for the first time after April 14, 2003, but is not a 
new source, the owner or operator must seek to obtain coverage under an 
NPDES permit, as follows:
    (i) For newly constructed operations not subject to effluent 
limitations guidelines, 180 days prior to the time CAFO commences 
operation;
    (ii) For other operations (e.g., resulting from an increase in the 
number of animals), as soon as possible, but no later than 90 days after 
becoming defined as a CAFO; or
    (iii) If an operational change that makes the operation a CAFO would 
not have made it a CAFO prior to April 14, 2003, the operation has until 
February 27, 2009, or 90 days after becoming defined as a CAFO, 
whichever is later.
    (4) New sources. The owner or operator of a new source must seek to 
obtain coverage under a permit at least 180 days prior to the time that 
the CAFO commences operation.
    (5) Operations that are designated as CAFOs. For operations 
designated as a CAFO in accordance with paragraph (c) of this section, 
the owner or operator must seek to obtain coverage under a permit no 
later than 90 days after receiving notice of the designation.
    (g) Duty to maintain permit coverage. No later than 180 days before 
the expiration of the permit, or as provided by the Director, any 
permitted CAFO must submit an application to renew its permit, in 
accordance with Sec. 122.21(d), unless the CAFO will not discharge or 
propose to discharge upon expiration of the permit.
    (h) Procedures for CAFOs seeking coverage under a general permit. 
(1) CAFO owners or operators must submit a notice of intent when seeking 
authorization to discharge under a general permit in accordance with 
Sec. 122.28(b). The Director must review notices of intent submitted by 
CAFO owners or operators to ensure that the notice of intent includes 
the information required by Sec. 122.21(i)(1), including a nutrient 
management plan that meets the requirements of Sec. 122.42(e) and 
applicable effluent limitations and standards, including those specified 
in 40 CFR part 412. When additional information is necessary to complete 
the notice of intent or clarify, modify, or supplement previously 
submitted material, the Director may request such information from the 
owner or operator. If the Director makes a preliminary determination 
that the notice of intent meets the requirements of Sec. Sec. 
122.21(i)(1) and 122.42(e), the Director must notify the public of the 
Director's proposal to grant coverage under the permit to the CAFO and 
make available for public review and comment the notice of intent 
submitted by the CAFO, including the CAFO's nutrient management plan, 
and the draft terms of the nutrient management plan to be incorporated 
into the permit. The process for submitting public comments and hearing 
requests, and the hearing process if a request for a hearing is granted, 
must follow the procedures applicable to draft permits set forth in 40 
CFR 124.11 through 124.13. The Director may establish, either by 
regulation or in the general permit, an appropriate period of time for 
the public to comment and request a hearing that differs from the time 
period specified in 40 CFR 124.10. The Director must respond to 
significant comments received during the comment period, as provided in 
40 CFR 124.17, and, if necessary, require the CAFO owner or operator to 
revise the nutrient management plan in order to be granted permit 
coverage. When the Director authorizes coverage for the

[[Page 200]]

CAFO owner or operator under the general permit, the terms of the 
nutrient management plan shall become incorporated as terms and 
conditions of the permit for the CAFO. The Director shall notify the 
CAFO owner or operator and inform the public that coverage has been 
authorized and of the terms of the nutrient management plan incorporated 
as terms and conditions of the permit applicable to the CAFO.
    (2) For EPA-issued permits only. The Regional Administrator shall 
notify each person who has submitted written comments on the proposal to 
grant coverage and the draft terms of the nutrient management plan or 
requested notice of the final permit decision. Such notification shall 
include notice that coverage has been authorized and of the terms of the 
nutrient management plan incorporated as terms and conditions of the 
permit applicable to the CAFO.
    (3) Nothing in this paragraph (h) shall affect the authority of the 
Director to require an individual permit under Sec. 122.28(b)(3).
    (i) No discharge certification option. (1) The owner or operator of 
a CAFO that meets the eligibility criteria in paragraph (i)(2) of this 
section may certify to the Director that the CAFO does not discharge or 
propose to discharge. A CAFO owner or operator who certifies that the 
CAFO does not discharge or propose to discharge is not required to seek 
coverage under an NPDES permit pursuant to paragraph (d)(1) of this 
section, provided that the CAFO is designed, constructed, operated, and 
maintained in accordance with the requirements of paragraphs (i)(2) and 
(3) of this section, and subject to the limitations in paragraph (i)(4) 
of this section.
    (2)  Eligibility criteria. In order to certify that a CAFO does not 
discharge or propose to discharge, the owner or operator of a CAFO must 
document, based on an objective assessment of the conditions at the 
CAFO, that the CAFO is designed, constructed, operated, and maintained 
in a manner such that the CAFO will not discharge, as follows:
    (i) The CAFO's production area is designed, constructed, operated, 
and maintained so as not to discharge. The CAFO must maintain 
documentation that demonstrates that:
    (A) Any open manure storage structures are designed, constructed, 
operated, and maintained to achieve no discharge based on a technical 
evaluation in accordance with the elements of the technical evaluation 
set forth in 40 CFR 412.46(a)(1)(i) through (viii);
    (B) Any part of the CAFO's production area that is not addressed by 
paragraph (i)(2)(i)(A) of this section is designed, constructed, 
operated, and maintained such that there will be no discharge of manure, 
litter, or process wastewater; and
    (C) The CAFO implements the additional measures set forth in 40 CFR 
412.37(a) and (b);
    (ii) The CAFO has developed and is implementing an up-to-date 
nutrient management plan to ensure no discharge from the CAFO, including 
from all land application areas under the control of the CAFO, that 
addresses, at a minimum, the following:
    (A) The elements of Sec. 122.42(e)(1)(i) through (ix) and 40 CFR 
412.37(c); and
    (B) All site-specific operation and maintenance practices necessary 
to ensure no discharge, including any practices or conditions 
established by a technical evaluation pursuant to paragraph (i)(2)(i)(A) 
of this section; and
    (iii) The CAFO must maintain documentation required by this 
paragraph either on site or at a nearby office, or otherwise make such 
documentation readily available to the Director or Regional 
Administrator upon request.
    (3) Submission to the Director. In order to certify that a CAFO does 
not discharge or propose to discharge, the CAFO owner or operator must 
complete and submit to the Director, by certified mail or equivalent 
method of documentation, a certification that includes, at a minimum, 
the following information:
    (i) The legal name, address and phone number of the CAFO owner or 
operator (see Sec. 122.21(b));
    (ii) The CAFO name and address, the county name and the latitude and 
longitude where the CAFO is located;
    (iii) A statement that describes the basis for the CAFO's 
certification that it satisfies the eligibility requirements

[[Page 201]]

identified in paragraph (i)(2) of this section; and
    (iv) The following certification statement: ``I certify under 
penalty of law that I am the owner or operator of a concentrated animal 
feeding operation (CAFO), identified as [Name of CAFO], and that said 
CAFO meets the requirements of 40 CFR 122.23(i). I have read and 
understand the eligibility requirements of 40 CFR 122.23(i)(2) for 
certifying that a CAFO does not discharge or propose to discharge and 
further certify that this CAFO satisfies the eligibility requirements. 
As part of this certification, I am including the information required 
by 40 CFR 122.23(i)(3). I also understand the conditions set forth in 40 
CFR 122.23(i)(4), (5) and (6) regarding loss and withdrawal of 
certification. I certify under penalty of law that this document and all 
other documents required for this certification were prepared under my 
direction or supervision and that qualified personnel properly gathered 
and evaluated the information submitted. Based upon my inquiry of the 
person or persons directly involved in gathering and evaluating the 
information, the information submitted is to the best of my knowledge 
and belief true, accurate and complete. I am aware there are significant 
penalties for submitting false information, including the possibility of 
fine and imprisonment for knowing violations.''; and
    (v) The certification must be signed in accordance with the 
signatory requirements of 40 CFR 122.22.
    (4) Term of certification. A certification that meets the 
requirements of paragraphs (i)(2) and (i)(3) of this section shall 
become effective on the date it is submitted, unless the Director 
establishes an effective date of up to 30 days after the date of 
submission. Certification will remain in effect for five years or until 
the certification is no longer valid or is withdrawn, whichever occurs 
first. A certification is no longer valid when a discharge has occurred 
or when the CAFO ceases to meet the eligibility criteria in paragraph 
(i)(2) of this section.
    (5) Withdrawal of certification.(i) At any time, a CAFO may withdraw 
its certification by notifying the Director by certified mail or 
equivalent method of documentation. A certification is withdrawn on the 
date the notification is submitted to the Director. The CAFO does not 
need to specify any reason for the withdrawal in its notification to the 
Director.
    (ii) If a certification becomes invalid in accordance with paragraph 
(i)(4) of this section, the CAFO must withdraw its certification within 
three days of the date on which the CAFO becomes aware that the 
certification is invalid. Once a CAFO's certification is no longer 
valid, the CAFO is subject to the requirement in paragraph (d)(1) of 
this section to seek permit coverage if it discharges or proposes to 
discharge.
    (6) Recertification.A previously certified CAFO that does not 
discharge or propose to discharge may recertify in accordance with 
paragraph (i) of this section, except that where the CAFO has 
discharged, the CAFO may only recertify if the following additional 
conditions are met:
    (i) The CAFO had a valid certification at the time of the discharge;
    (ii) The owner or operator satisfies the eligibility criteria of 
paragraph (i)(2) of this section, including any necessary modifications 
to the CAFO's design, construction, operation, and/or maintenance to 
permanently address the cause of the discharge and ensure that no 
discharge from this cause occurs in the future;
    (iii) The CAFO has not previously recertified after a discharge from 
the same cause;
    (iv) The owner or operator submits to the Director for review the 
following documentation: a description of the discharge, including the 
date, time, cause, duration, and approximate volume of the discharge, 
and a detailed explanation of the steps taken by the CAFO to permanently 
address the cause of the discharge in addition to submitting a 
certification in accordance with paragraph (i)(3) of this section; and
    (v) Notwithstanding paragraph (i)(4) of this section, a 
recertification that meets the requirements of paragraphs (i)(6)(iii) 
and (i)(6)(iv) of this section shall only become effective 30 days from 
the date of submission of the recertification documentation.

[[Page 202]]

    (j) Effect of certification. (1) An unpermitted CAFO certified in 
accordance with paragraph (i) of this section is presumed not to propose 
to discharge. If such a CAFO does discharge, it is not in violation of 
the requirement that CAFOs that propose to discharge seek permit 
coverage pursuant to paragraphs (d)(1) and (f) of this section, with 
respect to that discharge. In all instances, the discharge of a 
pollutant without a permit is a violation of the Clean Water Act section 
301(a) prohibition against unauthorized discharges from point sources.
    (2) In any enforcement proceeding for failure to seek permit 
coverage under paragraphs (d)(1) or (f) of this section that is related 
to a discharge from an unpermitted CAFO, the burden is on the CAFO to 
establish that it did not propose to discharge prior to the discharge 
when the CAFO either did not submit certification documentation as 
provided in paragraph (i)(3) or (i)(6)(iv) of this section within at 
least five years prior to the discharge, or withdrew its certification 
in accordance with paragraph (i)(5) of this section. Design, 
construction, operation, and maintenance in accordance with the criteria 
of paragraph (i)(2) of this section satisfies this burden.

[68 FR 7265, Feb. 12, 2003, as amended at 71 FR 6984, Feb. 10, 2006; 72 
FR 40250, July 24, 2007; 73 FR 70480, Nov. 20, 2008]



Sec. 122.24  Concentrated aquatic animal production facilities (applicable to 

State NPDES programs, see Sec. 123.25).

    (a) Permit requirement. Concentrated aquatic animal production 
facilities, as defined in this section, are point sources subject to the 
NPDES permit program.
    (b) Definition. Concentrated aquatic animal production facility 
means a hatchery, fish farm, or other facility which meets the criteria 
in appendix C of this part, or which the Director designates under 
paragraph (c) of this section.
    (c) Case-by-case designation of concentrated aquatic animal 
production facilities. (1) The Director may designate any warm or cold 
water aquatic animal production facility as a concentrated aquatic 
animal production facility upon determining that it is a significant 
contributor of pollution to waters of the United States. In making this 
designation the Director shall consider the following factors:
    (i) The location and quality of the receiving waters of the United 
States;
    (ii) The holding, feeding, and production capacities of the 
facility;
    (iii) The quantity and nature of the pollutants reaching waters of 
the United States; and
    (iv) Other relevant factors.
    (2) A permit application shall not be required from a concentrated 
aquatic animal production facility designated under this paragraph until 
the Director has conducted on-site inspection of the facility and has 
determined that the facility should and could be regulated under the 
permit program.

[48 FR 14153, Apr. 1, 1983, as amended at 65 FR 30907, May 15, 2000]



Sec. 122.25  Aquaculture projects (applicable to State NPDES programs, see 

Sec. 123.25).

    (a) Permit requirement. Discharges into aquaculture projects, as 
defined in this section, are subject to the NPDES permit program through 
section 318 of CWA, and in accordance with 40 CFR part 125, subpart B.
    (b) Definitions. (1) Aquaculture project means a defined managed 
water area which uses discharges of pollutants into that designated area 
for the maintenance or production of harvestable freshwater, estuarine, 
or marine plants or animals.
    (2) Designated project area means the portions of the waters of the 
United States within which the permittee or permit applicant plans to 
confine the cultivated species, using a method or plan or operation 
(including, but not limited to, physical confinement) which, on the 
basis of reliable scientific evidence, is expected to ensure that 
specific individual organisms comprising an aquaculture crop will enjoy 
increased growth attributable to the discharge of pollutants, and be 
harvested within a defined geographic area.

[[Page 203]]



Sec. 122.26  Storm water discharges (applicable to State NPDES programs, see 

Sec. 123.25).

    (a) Permit requirement. (1) Prior to October 1, 1994, discharges 
composed entirely of storm water shall not be required to obtain a NPDES 
permit except:
    (i) A discharge with respect to which a permit has been issued prior 
to February 4, 1987;
    (ii) A discharge associated with industrial activity (see Sec. 
122.26(a)(4));
    (iii) A discharge from a large municipal separate storm sewer 
system;
    (iv) A discharge from a medium municipal separate storm sewer 
system;
    (v) A discharge which the Director, or in States with approved NPDES 
programs, either the Director or the EPA Regional Administrator, 
determines to contribute to a violation of a water quality standard or 
is a significant contributor of pollutants to waters of the United 
States. This designation may include a discharge from any conveyance or 
system of conveyances used for collecting and conveying storm water 
runoff or a system of discharges from municipal separate storm sewers, 
except for those discharges from conveyances which do not require a 
permit under paragraph (a)(2) of this section or agricultural storm 
water runoff which is exempted from the definition of point source at 
Sec. 122.2.

The Director may designate discharges from municipal separate storm 
sewers on a system-wide or jurisdiction-wide basis. In making this 
determination the Director may consider the following factors:
    (A) The location of the discharge with respect to waters of the 
United States as defined at 40 CFR 122.2.
    (B) The size of the discharge;
    (C) The quantity and nature of the pollutants discharged to waters 
of the United States; and
    (D) Other relevant factors.
    (2) The Director may not require a permit for discharges of storm 
water runoff from the following:
    (i) Mining operations composed entirely of flows which are from 
conveyances or systems of conveyances (including but not limited to 
pipes, conduits, ditches, and channels) used for collecting and 
conveying precipitation runoff and which are not contaminated by contact 
with or that have not come into contact with, any overburden, raw 
material, intermediate products, finished product, byproduct, or waste 
products located on the site of such operations, except in accordance 
with paragraph (c)(1)(iv) of this section.
    (ii) All field activities or operations associated with oil and gas 
exploration, production, processing, or treatment operations or 
transmission facilities, including activities necessary to prepare a 
site for drilling and for the movement and placement of drilling 
equipment, whether or not such field activities or operations may be 
considered to be construction activities, except in accordance with 
paragraph (c)(1)(iii) of this section. Discharges of sediment from 
construction activities associated with oil and gas exploration, 
production, processing, or treatment operations or transmission 
facilities are not subject to the provisions of paragraph (c)(1)(iii)(C) 
of this section.

    Note to paragraph (a)(2)(ii): EPA encourages operators of oil and 
gas field activities or operations to implement and maintain Best 
Management Practices (BMPs) to minimize discharges of pollutants, 
including sediment, in storm water both during and after construction 
activities to help ensure protection of surface water quality during 
storm events. Appropriate controls would be those suitable to the site 
conditions and consistent with generally accepted engineering design 
criteria and manufacturer specifications. Selection of BMPs could also 
be affected by seasonal or climate conditions.

    (3) Large and medium municipal separate storm sewer systems. (i) 
Permits must be obtained for all discharges from large and medium 
municipal separate storm sewer systems.
    (ii) The Director may either issue one system-wide permit covering 
all discharges from municipal separate storm sewers within a large or 
medium municipal storm sewer system or issue distinct permits for 
appropriate categories of discharges within a large or medium municipal 
separate storm sewer system including, but not limited to: all 
discharges owned or operated by the same municipality; located within 
the same jurisdiction; all discharges within a system that discharge to 
the same watershed; discharges

[[Page 204]]

within a system that are similar in nature; or for individual discharges 
from municipal separate storm sewers within the system.
    (iii) The operator of a discharge from a municipal separate storm 
sewer which is part of a large or medium municipal separate storm sewer 
system must either:
    (A) Participate in a permit application (to be a permittee or a co-
permittee) with one or more other operators of discharges from the large 
or medium municipal storm sewer system which covers all, or a portion of 
all, discharges from the municipal separate storm sewer system;
    (B) Submit a distinct permit application which only covers 
discharges from the municipal separate storm sewers for which the 
operator is responsible; or
    (C) A regional authority may be responsible for submitting a permit 
application under the following guidelines:
    (1) The regional authority together with co-applicants shall have 
authority over a storm water management program that is in existence, or 
shall be in existence at the time part 1 of the application is due;
    (2) The permit applicant or co-applicants shall establish their 
ability to make a timely submission of part 1 and part 2 of the 
municipal application;
    (3) Each of the operators of municipal separate storm sewers within 
the systems described in paragraphs (b)(4) (i), (ii), and (iii) or 
(b)(7) (i), (ii), and (iii) of this section, that are under the purview 
of the designated regional authority, shall comply with the application 
requirements of paragraph (d) of this section.
    (iv) One permit application may be submitted for all or a portion of 
all municipal separate storm sewers within adjacent or interconnected 
large or medium municipal separate storm sewer systems. The Director may 
issue one system-wide permit covering all, or a portion of all municipal 
separate storm sewers in adjacent or interconnected large or medium 
municipal separate storm sewer systems.
    (v) Permits for all or a portion of all discharges from large or 
medium municipal separate storm sewer systems that are issued on a 
system-wide, jurisdiction-wide, watershed or other basis may specify 
different conditions relating to different discharges covered by the 
permit, including different management programs for different drainage 
areas which contribute storm water to the system.
    (vi) Co-permittees need only comply with permit conditions relating 
to discharges from the municipal separate storm sewers for which they 
are operators.
    (4) Discharges through large and medium municipal separate storm 
sewer systems. In addition to meeting the requirements of paragraph (c) 
of this section, an operator of a storm water discharge associated with 
industrial activity which discharges through a large or medium municipal 
separate storm sewer system shall submit, to the operator of the 
municipal separate storm sewer system receiving the discharge no later 
than May 15, 1991, or 180 days prior to commencing such discharge: the 
name of the facility; a contact person and phone number; the location of 
the discharge; a description, including Standard Industrial 
Classification, which best reflects the principal products or services 
provided by each facility; and any existing NPDES permit number.
    (5) Other municipal separate storm sewers. The Director may issue 
permits for municipal separate storm sewers that are designated under 
paragraph (a)(1)(v) of this section on a system-wide basis, 
jurisdiction-wide basis, watershed basis or other appropriate basis, or 
may issue permits for individual discharges.
    (6) Non-municipal separate storm sewers. For storm water discharges 
associated with industrial activity from point sources which discharge 
through a non-municipal or non-publicly owned separate storm sewer 
system, the Director, in his discretion, may issue: a single NPDES 
permit, with each discharger a co-permittee to a permit issued to the 
operator of the portion of the system that discharges into waters of the 
United States; or, individual permits to each discharger of storm water 
associated with industrial activity through the non-municipal conveyance 
system.

[[Page 205]]

    (i) All storm water discharges associated with industrial activity 
that discharge through a storm water discharge system that is not a 
municipal separate storm sewer must be covered by an individual permit, 
or a permit issued to the operator of the portion of the system that 
discharges to waters of the United States, with each discharger to the 
non-municipal conveyance a co-permittee to that permit.
    (ii) Where there is more than one operator of a single system of 
such conveyances, all operators of storm water discharges associated 
with industrial activity must submit applications.
    (iii) Any permit covering more than one operator shall identify the 
effluent limitations, or other permit conditions, if any, that apply to 
each operator.
    (7) Combined sewer systems. Conveyances that discharge storm water 
runoff combined with municipal sewage are point sources that must obtain 
NPDES permits in accordance with the procedures of Sec. 122.21 and are 
not subject to the provisions of this section.
    (8) Whether a discharge from a municipal separate storm sewer is or 
is not subject to regulation under this section shall have no bearing on 
whether the owner or operator of the discharge is eligible for funding 
under title II, title III or title VI of the Clean Water Act. See 40 CFR 
part 35, subpart I, appendix A(b)H.2.j.
    (9)(i) On and after October 1, 1994, for discharges composed 
entirely of storm water, that are not required by paragraph (a)(1) of 
this section to obtain a permit, operators shall be required to obtain a 
NPDES permit only if:
    (A) The discharge is from a small MS4 required to be regulated 
pursuant to Sec. 122.32;
    (B) The discharge is a storm water discharge associated with small 
construction activity pursuant to paragraph (b)(15) of this section;
    (C) The Director, or in States with approved NPDES programs either 
the Director or the EPA Regional Administrator, determines that storm 
water controls are needed for the discharge based on wasteload 
allocations that are part of ``total maximum daily loads'' (TMDLs) that 
address the pollutant(s) of concern; or
    (D) The Director, or in States with approved NPDES programs either 
the Director or the EPA Regional Administrator, determines that the 
discharge, or category of discharges within a geographic area, 
contributes to a violation of a water quality standard or is a 
significant contributor of pollutants to waters of the United States.
    (ii) Operators of small MS4s designated pursuant to paragraphs 
(a)(9)(i)(A), (a)(9)(i)(C), and (a)(9)(i)(D) of this section shall seek 
coverage under an NPDES permit in accordance with Sec. Sec. 122.33 
through 122.35. Operators of non-municipal sources designated pursuant 
to paragraphs (a)(9)(i)(B), (a)(9)(i)(C), and (a)(9)(i)(D) of this 
section shall seek coverage under an NPDES permit in accordance with 
paragraph (c)(1) of this section.
    (iii) Operators of storm water discharges designated pursuant to 
paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) of this section shall apply to 
the Director for a permit within 180 days of receipt of notice, unless 
permission for a later date is granted by the Director (see Sec. 
124.52(c) of this chapter).
    (b) Definitions. (1) Co-permittee means a permittee to a NPDES 
permit that is only responsible for permit conditions relating to the 
discharge for which it is operator.
    (2) Illicit discharge means any discharge to a municipal separate 
storm sewer that is not composed entirely of storm water except 
discharges pursuant to a NPDES permit (other than the NPDES permit for 
discharges from the municipal separate storm sewer) and discharges 
resulting from fire fighting activities.
    (3) Incorporated place means the District of Columbia, or a city, 
town, township, or village that is incorporated under the laws of the 
State in which it is located.
    (4) Large municipal separate storm sewer system means all municipal 
separate storm sewers that are either:
    (i) Located in an incorporated place with a population of 250,000 or 
more as determined by the 1990 Decennial Census by the Bureau of the 
Census (Appendix F of this part); or
    (ii) Located in the counties listed in appendix H, except municipal 
separate

[[Page 206]]

storm sewers that are located in the incorporated places, townships or 
towns within such counties; or
    (iii) Owned or operated by a municipality other than those described 
in paragraph (b)(4) (i) or (ii) of this section and that are designated 
by the Director as part of the large or medium municipal separate storm 
sewer system due to the interrelationship between the discharges of the 
designated storm sewer and the discharges from municipal separate storm 
sewers described under paragraph (b)(4) (i) or (ii) of this section. In 
making this determination the Director may consider the following 
factors:
    (A) Physical interconnections between the municipal separate storm 
sewers;
    (B) The location of discharges from the designated municipal 
separate storm sewer relative to discharges from municipal separate 
storm sewers described in paragraph (b)(4)(i) of this section;
    (C) The quantity and nature of pollutants discharged to waters of 
the United States;
    (D) The nature of the receiving waters; and
    (E) Other relevant factors; or
    (iv) The Director may, upon petition, designate as a large municipal 
separate storm sewer system, municipal separate storm sewers located 
within the boundaries of a region defined by a storm water management 
regional authority based on a jurisdictional, watershed, or other 
appropriate basis that includes one or more of the systems described in 
paragraph (b)(4) (i), (ii), (iii) of this section.
    (5) Major municipal separate storm sewer outfall (or ``major 
outfall'') means a municipal separate storm sewer outfall that 
discharges from a single pipe with an inside diameter of 36 inches or 
more or its equivalent (discharge from a single conveyance other than 
circular pipe which is associated with a drainage area of more than 50 
acres); or for municipal separate storm sewers that receive storm water 
from lands zoned for industrial activity (based on comprehensive zoning 
plans or the equivalent), an outfall that discharges from a single pipe 
with an inside diameter of 12 inches or more or from its equivalent 
(discharge from other than a circular pipe associated with a drainage 
area of 2 acres or more).
    (6) Major outfall means a major municipal separate storm sewer 
outfall.
    (7) Medium municipal separate storm sewer system means all municipal 
separate storm sewers that are either:
    (i) Located in an incorporated place with a population of 100,000 or 
more but less than 250,000, as determined by the 1990 Decennial Census 
by the Bureau of the Census (Appendix G of this part); or
    (ii) Located in the counties listed in appendix I, except municipal 
separate storm sewers that are located in the incorporated places, 
townships or towns within such counties; or
    (iii) Owned or operated by a municipality other than those described 
in paragraph (b)(7) (i) or (ii) of this section and that are designated 
by the Director as part of the large or medium municipal separate storm 
sewer system due to the interrelationship between the discharges of the 
designated storm sewer and the discharges from municipal separate storm 
sewers described under paragraph (b)(7) (i) or (ii) of this section. In 
making this determination the Director may consider the following 
factors:
    (A) Physical interconnections between the municipal separate storm 
sewers;
    (B) The location of discharges from the designated municipal 
separate storm sewer relative to discharges from municipal separate 
storm sewers described in paragraph (b)(7)(i) of this section;
    (C) The quantity and nature of pollutants discharged to waters of 
the United States;
    (D) The nature of the receiving waters; or
    (E) Other relevant factors; or
    (iv) The Director may, upon petition, designate as a medium 
municipal separate storm sewer system, municipal separate storm sewers 
located within the boundaries of a region defined by a storm water 
management regional authority based on a jurisdictional, watershed, or 
other appropriate basis that includes one or more of the systems 
described in paragraphs (b)(7) (i), (ii), (iii) of this section.

[[Page 207]]

    (8) Municipal separate storm sewer means a conveyance or system of 
conveyances (including roads with drainage systems, municipal streets, 
catch basins, curbs, gutters, ditches, man-made channels, or storm 
drains):
    (i) Owned or operated by a State, city, town, borough, county, 
parish, district, association, or other public body (created by or 
pursuant to State law) having jurisdiction over disposal of sewage, 
industrial wastes, storm water, or other wastes, including special 
districts under State law such as a sewer district, flood control 
district or drainage district, or similar entity, or an Indian tribe or 
an authorized Indian tribal organization, or a designated and approved 
management agency under section 208 of the CWA that discharges to waters 
of the United States;
    (ii) Designed or used for collecting or conveying storm water;
    (iii) Which is not a combined sewer; and
    (iv) Which is not part of a Publicly Owned Treatment Works (POTW) as 
defined at 40 CFR 122.2.
    (9) Outfall means a point source as defined by 40 CFR 122.2 at the 
point where a municipal separate storm sewer discharges to waters of the 
United States and does not include open conveyances connecting two 
municipal separate storm sewers, or pipes, tunnels or other conveyances 
which connect segments of the same stream or other waters of the United 
States and are used to convey waters of the United States.
    (10) Overburden means any material of any nature, consolidated or 
unconsolidated, that overlies a mineral deposit, excluding topsoil or 
similar naturally-occurring surface materials that are not disturbed by 
mining operations.
    (11) Runoff coefficient means the fraction of total rainfall that 
will appear at a conveyance as runoff.
    (12) Significant materials includes, but is not limited to: raw 
materials; fuels; materials such as solvents, detergents, and plastic 
pellets; finished materials such as metallic products; raw materials 
used in food processing or production; hazardous substances designated 
under section 101(14) of CERCLA; any chemical the facility is required 
to report pursuant to section 313 of title III of SARA; fertilizers; 
pesticides; and waste products such as ashes, slag and sludge that have 
the potential to be released with storm water discharges.
    (13) Storm water means storm water runoff, snow melt runoff, and 
surface runoff and drainage.
    (14) Storm water discharge associated with industrial activity means 
the discharge from any conveyance that is used for collecting and 
conveying storm water and that is directly related to manufacturing, 
processing or raw materials storage areas at an industrial plant. The 
term does not include discharges from facilities or activities excluded 
from the NPDES program under this part 122. For the categories of 
industries identified in this section, the term includes, but is not 
limited to, storm water discharges from industrial plant yards; 
immediate access roads and rail lines used or traveled by carriers of 
raw materials, manufactured products, waste material, or by-products 
used or created by the facility; material handling sites; refuse sites; 
sites used for the application or disposal of process waste waters (as 
defined at part 401 of this chapter); sites used for the storage and 
maintenance of material handling equipment; sites used for residual 
treatment, storage, or disposal; shipping and receiving areas; 
manufacturing buildings; storage areas (including tank farms) for raw 
materials, and intermediate and final products; and areas where 
industrial activity has taken place in the past and significant 
materials remain and are exposed to storm water. For the purposes of 
this paragraph, material handling activities include storage, loading 
and unloading, transportation, or conveyance of any raw material, 
intermediate product, final product, by-product or waste product. The 
term excludes areas located on plant lands separate from the plant's 
industrial activities, such as office buildings and accompanying parking 
lots as long as the drainage from the excluded areas is not mixed with 
storm water drained from the above described areas. Industrial 
facilities (including industrial facilities that are federally, State, 
or municipally owned or operated that meet the description of the 
facilities listed in paragraphs (b)(14)(i) through (xi) of this

[[Page 208]]

section) include those facilities designated under the provisions of 
paragraph (a)(1)(v) of this section. The following categories of 
facilities are considered to be engaging in ``industrial activity'' for 
purposes of paragraph (b)(14):
    (i) Facilities subject to storm water effluent limitations 
guidelines, new source performance standards, or toxic pollutant 
effluent standards under 40 CFR subchapter N (except facilities with 
toxic pollutant effluent standards which are exempted under category 
(xi) in paragraph (b)(14) of this section);
    (ii) Facilities classified as Standard Industrial Classifications 24 
(except 2434), 26 (except 265 and 267), 28 (except 283), 29, 31l, 32 
(except 323), 33, 344l, 373;
    (iii) Facilities classified as Standard Industrial Classifications 
10 through 14 (mineral industry) including active or inactive mining 
operations (except for areas of coal mining operations no longer meeting 
the definition of a reclamation area under 40 CFR 434.11(1) because the 
performance bond issued to the facility by the appropriate SMCRA 
authority has been released, or except for areas of non-coal mining 
operations which have been released from applicable State or Federal 
reclamation requirements after December 17, 1990) and oil and gas 
exploration, production, processing, or treatment operations, or 
transmission facilities that discharge storm water contaminated by 
contact with or that has come into contact with, any overburden, raw 
material, intermediate products, finished products, byproducts or waste 
products located on the site of such operations; (inactive mining 
operations are mining sites that are not being actively mined, but which 
have an identifiable owner/operator; inactive mining sites do not 
include sites where mining claims are being maintained prior to 
disturbances associated with the extraction, beneficiation, or 
processing of mined materials, nor sites where minimal activities are 
undertaken for the sole purpose of maintaining a mining claim);
    (iv) Hazardous waste treatment, storage, or disposal facilities, 
including those that are operating under interim status or a permit 
under subtitle C of RCRA;
    (v) Landfills, land application sites, and open dumps that receive 
or have received any industrial wastes (waste that is received from any 
of the facilities described under this subsection) including those that 
are subject to regulation under subtitle D of RCRA;
    (vi) Facilities involved in the recycling of materials, including 
metal scrapyards, battery reclaimers, salvage yards, and automobile 
junkyards, including but limited to those classified as Standard 
Industrial Classification 5015 and 5093;
    (vii) Steam electric power generating facilities, including coal 
handling sites;
    (viii) Transportation facilities classified as Standard Industrial 
Classifications 40, 41, 42 (except 4221-25), 43, 44, 45, and 5171 which 
have vehicle maintenance shops, equipment cleaning operations, or 
airport deicing operations. Only those portions of the facility that are 
either involved in vehicle maintenance (including vehicle 
rehabilitation, mechanical repairs, painting, fueling, and lubrication), 
equipment cleaning operations, airport deicing operations, or which are 
otherwise identified under paragraphs (b)(14) (i)-(vii) or (ix)-(xi) of 
this section are associated with industrial activity;
    (ix) Treatment works treating domestic sewage or any other sewage 
sludge or wastewater treatment device or system, used in the storage 
treatment, recycling, and reclamation of municipal or domestic sewage, 
including land dedicated to the disposal of sewage sludge that are 
located within the confines of the facility, with a design flow of 1.0 
mgd or more, or required to have an approved pretreatment program under 
40 CFR part 403. Not included are farm lands, domestic gardens or lands 
used for sludge management where sludge is beneficially reused and which 
are not physically located in the confines of the facility, or areas 
that are in compliance with section 405 of the CWA;
    (x) Construction activity including clearing, grading and 
excavation, except operations that result in the disturbance of less 
than five acres of total land area. Construction activity also includes 
the disturbance of less than five acres of total land area that is a

[[Page 209]]

part of a larger common plan of development or sale if the larger common 
plan will ultimately disturb five acres or more;
    (xi) Facilities under Standard Industrial Classifications 20, 21, 
22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31 (except 311), 323, 34 
(except 3441), 35, 36, 37 (except 373), 38, 39, and 4221-25;
    (15) Storm water discharge associated with small construction 
activity means the discharge of storm water from:
    (i) Construction activities including clearing, grading, and 
excavating that result in land disturbance of equal to or greater than 
one acre and less than five acres. Small construction activity also 
includes the disturbance of less than one acre of total land area that 
is part of a larger common plan of development or sale if the larger 
common plan will ultimately disturb equal to or greater than one and 
less than five acres. Small construction activity does not include 
routine maintenance that is performed to maintain the original line and 
grade, hydraulic capacity, or original purpose of the facility. The 
Director may waive the otherwise applicable requirements in a general 
permit for a storm water discharge from construction activities that 
disturb less than five acres where:
    (A) The value of the rainfall erosivity factor (``R'' in the Revised 
Universal Soil Loss Equation) is less than five during the period of 
construction activity. The rainfall erosivity factor is determined in 
accordance with Chapter 2 of Agriculture Handbook Number 703, Predicting 
Soil Erosion by Water: A Guide to Conservation Planning With the Revised 
Universal Soil Loss Equation (RUSLE), pages 21-64, dated January 1997. 
The Director of the Federal Register approves this incorporation by 
reference in accordance with 5 U.S.C 552(a) and 1 CFR part 51. Copies 
may be obtained from EPA's Water Resource Center, Mail Code RC4100, 401 
M St. SW, Washington, DC 20460. A copy is also available for inspection 
at the U.S. EPA Water Docket , 401 M Street SW, Washington, DC 20460, or 
at the National Archives and Records Administration (NARA). For 
information on the availability of this material at NARA, call 202-741-
6030, or go to: http://www.archives.gov/federal--register/code--of--
federal--regulations/ibr--locations.html. An operator must certify to 
the Director that the construction activity will take place during a 
period when the value of the rainfall erosivity factor is less than 
five; or
    (B) Storm water controls are not needed based on a ``total maximum 
daily load'' (TMDL) approved or established by EPA that addresses the 
pollutant(s) of concern or, for non-impaired waters that do not require 
TMDLs, an equivalent analysis that determines allocations for small 
construction sites for the pollutant(s) of concern or that determines 
that such allocations are not needed to protect water quality based on 
consideration of existing in-stream concentrations, expected growth in 
pollutant contributions from all sources, and a margin of safety. For 
the purpose of this paragraph, the pollutant(s) of concern include 
sediment or a parameter that addresses sediment (such as total suspended 
solids, turbidity or siltation) and any other pollutant that has been 
identified as a cause of impairment of any water body that will receive 
a discharge from the construction activity. The operator must certify to 
the Director that the construction activity will take place, and storm 
water discharges will occur, within the drainage area addressed by the 
TMDL or equivalent analysis.
    (ii) Any other construction activity designated by the Director, or 
in States with approved NPDES programs either the Director or the EPA 
Regional Administrator, based on the potential for contribution to a 
violation of a water quality standard or for significant contribution of 
pollutants to waters of the United States.

 Exhibit 1 to Sec.  122.26(b)(15)--Summary of Coverage of ``Storm Water
Discharges Associated with Small Construction Activity'' Under the NPDES
                           Storm Water Program
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Automatic Designation:          Construction
 Required Nationwide Coverage.  activities that result in a land
                                disturbance of equal to or greater than
                                one acre and less than five acres.

[[Page 210]]

 
                                Construction
                                activities disturbing less than one acre
                                if part of a larger common plan of
                                development or sale with a planned
                                disturbance of equal to or greater than
                                one acre and less than five acres. (see
                                Sec.  122.26(b)(15)(i).)
Potential Designation:          Construction
 Optional Evaluation and        activities that result in a land
 Designation by the NPDES       disturbance of less than one acre based
 Permitting Authority or EPA    on the potential for contribution to a
 Regional Administrator.        violation of a water quality standard or
                                for significant contribution of
                                pollutants. (see Sec.
                                122.26(b)(15)(ii).)
Potential Waiver: Waiver from  Any automatically designated construction
 Requirements as Determined     activity where the operator certifies:
 by the NPDES Permitting        (1) A rainfall erosivity factor of less
 Authority..                    than five, or (2) That the activity will
                                occur within an area where controls are
                                not needed based on a TMDL or, for non-
                                impaired waters that do not require a
                                TMDL, an equivalent analysis for the
                                pollutant(s) of concern. (see Sec.
                                122.26(b)(15)(i).)
------------------------------------------------------------------------

    (16) Small municipal separate storm sewer system means all separate 
storm sewers that are:
    (i) Owned or operated by the United States, a State, city, town, 
borough, county, parish, district, association, or other public body 
(created by or pursuant to State law) having jurisdiction over disposal 
of sewage, industrial wastes, storm water, or other wastes, including 
special districts under State law such as a sewer district, flood 
control district or drainage district, or similar entity, or an Indian 
tribe or an authorized Indian tribal organization, or a designated and 
approved management agency under section 208 of the CWA that discharges 
to waters of the United States.
    (ii) Not defined as ``large'' or ``medium'' municipal separate storm 
sewer systems pursuant to paragraphs (b)(4) and (b)(7) of this section, 
or designated under paragraph (a)(1)(v) of this section.
    (iii) This term includes systems similar to separate storm sewer 
systems in municipalities, such as systems at military bases, large 
hospital or prison complexes, and highways and other thoroughfares. The 
term does not include separate storm sewers in very discrete areas, such 
as individual buildings.
    (17) Small MS4 means a small municipal separate storm sewer system.
    (18) Municipal separate storm sewer system means all separate storm 
sewers that are defined as ``large'' or ``medium'' or ``small'' 
municipal separate storm sewer systems pursuant to paragraphs (b)(4), 
(b)(7), and (b)(16) of this section, or designated under paragraph 
(a)(1)(v) of this section.
    (19) MS4 means a municipal separate storm sewer system.
    (20) Uncontrolled sanitary landfill means a landill or open dump, 
whether in operation or closed, that does not meet the requirements for 
runon or runoff controls established pursuant to subtitle D of the Solid 
Waste Disposal Act.
    (c) Application requirements for storm water discharges associated 
with industrial activity and storm water discharges associated with 
small construction activity--(1) Individual application. Dischargers of 
storm water associated with industrial activity and with small 
construction activity are required to apply for an individual permit or 
seek coverage under a promulgated storm water general permit. Facilities 
that are required to obtain an individual permit or any dischage of 
storm water which the Director is evaluating for designation (see Sec. 
124.52(c) of this chapter) under paragraph (a)(1)(v) of this section and 
is not a municipal storm sewer, shall submit an NPDES application in 
accordance with the requirements of Sec. 122.21 as modified and 
supplemented by the provisions of this paragraph.
    (i) Except as provided in Sec. 122.26(c)(1) (ii)-(iv), the operator 
of a storm water discharge associated with industrial activity subject 
to this section shall provide:

[[Page 211]]

    (A) A site map showing topography (or indicating the outline of 
drainage areas served by the outfall(s) covered in the application if a 
topographic map is unavailable) of the facility including: each of its 
drainage and discharge structures; the drainage area of each storm water 
outfall; paved areas and buildings within the drainage area of each 
storm water outfall, each past or present area used for outdoor storage 
or disposal of significant materials, each existing structural control 
measure to reduce pollutants in storm water runoff, materials loading 
and access areas, areas where pesticides, herbicides, soil conditioners 
and fertilizers are applied, each of its hazardous waste treatment, 
storage or disposal facilities (including each area not required to have 
a RCRA permit which is used for accumulating hazardous waste under 40 
CFR 262.34); each well where fluids from the facility are injected 
underground; springs, and other surface water bodies which receive storm 
water discharges from the facility;
    (B) An estimate of the area of impervious surfaces (including paved 
areas and building roofs) and the total area drained by each outfall 
(within a mile radius of the facility) and a narrative description of 
the following: Significant materials that in the three years prior to 
the submittal of this application have been treated, stored or disposed 
in a manner to allow exposure to storm water; method of treatment, 
storage or disposal of such materials; materials management practices 
employed, in the three years prior to the submittal of this application, 
to minimize contact by these materials with storm water runoff; 
materials loading and access areas; the location, manner and frequency 
in which pesticides, herbicides, soil conditioners and fertilizers are 
applied; the location and a description of existing structural and non-
structural control measures to reduce pollutants in storm water runoff; 
and a description of the treatment the storm water receives, including 
the ultimate disposal of any solid or fluid wastes other than by 
discharge;
    (C) A certification that all outfalls that should contain storm 
water discharges associated with industrial activity have been tested or 
evaluated for the presence of non-storm water discharges which are not 
covered by a NPDES permit; tests for such non-storm water discharges may 
include smoke tests, fluorometric dye tests, analysis of accurate 
schematics, as well as other appropriate tests. The certification shall 
include a description of the method used, the date of any testing, and 
the on-site drainage points that were directly observed during a test;
    (D) Existing information regarding significant leaks or spills of 
toxic or hazardous pollutants at the facility that have taken place 
within the three years prior to the submittal of this application;
    (E) Quantitative data based on samples collected during storm events 
and collected in accordance with Sec. 122.21 of this part from all 
outfalls containing a storm water discharge associated with industrial 
activity for the following parameters:
    (1) Any pollutant limited in an effluent guideline to which the 
facility is subject;
    (2) Any pollutant listed in the facility's NPDES permit for its 
process wastewater (if the facility is operating under an existing NPDES 
permit);
    (3) Oil and grease, pH, BOD5, COD, TSS, total phosphorus, total 
Kjeldahl nitrogen, and nitrate plus nitrite nitrogen;
    (4) Any information on the discharge required under Sec. 
122.21(g)(7)(vi) and (vii);
    (5) Flow measurements or estimates of the flow rate, and the total 
amount of discharge for the storm event(s) sampled, and the method of 
flow measurement or estimation; and
    (6) The date and duration (in hours) of the storm event(s) sampled, 
rainfall measurements or estimates of the storm event (in inches) which 
generated the sampled runoff and the duration between the storm event 
sampled and the end of the previous measurable (greater than 0.1 inch 
rainfall) storm event (in hours);
    (F) Operators of a discharge which is composed entirely of storm 
water are exempt from the requirements of Sec. 122.21 (g)(2), (g)(3), 
(g)(4), (g)(5), (g)(7)(iii), (g)(7)(iv), (g)(7)(v), and (g)(7)(viii); 
and

[[Page 212]]

    (G) Operators of new sources or new discharges (as defined in Sec. 
122.2 of this part) which are composed in part or entirely of storm 
water must include estimates for the pollutants or parameters listed in 
paragraph (c)(1)(i)(E) of this section instead of actual sampling data, 
along with the source of each estimate. Operators of new sources or new 
discharges composed in part or entirely of storm water must provide 
quantitative data for the parameters listed in paragraph (c)(1)(i)(E) of 
this section within two years after commencement of discharge, unless 
such data has already been reported under the monitoring requirements of 
the NPDES permit for the discharge. Operators of a new source or new 
discharge which is composed entirely of storm water are exempt from the 
requirements of Sec. 122.21 (k)(3)(ii), (k)(3)(iii), and (k)(5).
    (ii) An operator of an existing or new storm water discharge that is 
associated with industrial activity solely under paragraph (b)(14)(x) of 
this section or is associated with small construction activity solely 
under paragraph (b)(15) of this section, is exempt from the requirements 
of Sec. 122.21(g) and paragraph (c)(1)(i) of this section. Such 
operator shall provide a narrative description of:
    (A) The location (including a map) and the nature of the 
construction activity;
    (B) The total area of the site and the area of the site that is 
expected to undergo excavation during the life of the permit;
    (C) Proposed measures, including best management practices, to 
control pollutants in storm water discharges during construction, 
including a brief description of applicable State and local erosion and 
sediment control requirements;
    (D) Proposed measures to control pollutants in storm water 
discharges that will occur after construction operations have been 
completed, including a brief description of applicable State or local 
erosion and sediment control requirements;
    (E) An estimate of the runoff coefficient of the site and the 
increase in impervious area after the construction addressed in the 
permit application is completed, the nature of fill material and 
existing data describing the soil or the quality of the discharge; and
    (F) The name of the receiving water.
    (iii) The operator of an existing or new discharge composed entirely 
of storm water from an oil or gas exploration, production, processing, 
or treatment operation, or transmission facility is not required to 
submit a permit application in accordance with paragraph (c)(1)(i) of 
this section, unless the facility:
    (A) Has had a discharge of storm water resulting in the discharge of 
a reportable quantity for which notification is or was required pursuant 
to 40 CFR 117.21 or 40 CFR 302.6 at anytime since November 16, 1987; or
    (B) Has had a discharge of storm water resulting in the discharge of 
a reportable quantity for which notification is or was required pursuant 
to 40 CFR 110.6 at any time since November 16, 1987; or
    (C) Contributes to a violation of a water quality standard.
    (iv) The operator of an existing or new discharge composed entirely 
of storm water from a mining operation is not required to submit a 
permit application unless the discharge has come into contact with, any 
overburden, raw material, intermediate products, finished product, 
byproduct or waste products located on the site of such operations.
    (v) Applicants shall provide such other information the Director may 
reasonably require under Sec. 122.21(g)(13) of this part to determine 
whether to issue a permit and may require any facility subject to 
paragraph (c)(1)(ii) of this section to comply with paragraph (c)(1)(i) 
of this section.
    (2) [Reserved]
    (d) Application requirements for large and medium municipal separate 
storm sewer discharges. The operator of a discharge from a large or 
medium municipal separate storm sewer or a municipal separate storm 
sewer that is designated by the Director under paragraph (a)(1)(v) of 
this section, may submit a jurisdiction-wide or system-wide permit 
application. Where more than one public entity owns or operates a 
municipal separate storm sewer within a geographic area (including 
adjacent

[[Page 213]]

or interconnected municipal separate storm sewer systems), such 
operators may be a coapplicant to the same application. Permit 
applications for discharges from large and medium municipal storm sewers 
or municipal storm sewers designated under paragraph (a)(1)(v) of this 
section shall include;
    (1) Part 1. Part 1 of the application shall consist of;
    (i) General information. The applicants' name, address, telephone 
number of contact person, ownership status and status as a State or 
local government entity.
    (ii) Legal authority. A description of existing legal authority to 
control discharges to the municipal separate storm sewer system. When 
existing legal authority is not sufficient to meet the criteria provided 
in paragraph (d)(2)(i) of this section, the description shall list 
additional authorities as will be necessary to meet the criteria and 
shall include a schedule and commitment to seek such additional 
authority that will be needed to meet the criteria.
    (iii) Source identification. (A) A description of the historic use 
of ordinances, guidance or other controls which limited the discharge of 
non-storm water discharges to any Publicly Owned Treatment Works serving 
the same area as the municipal separate storm sewer system.
    (B) A USGS 7.5 minute topographic map (or equivalent topographic map 
with a scale between 1:10,000 and 1:24,000 if cost effective) extending 
one mile beyond the service boundaries of the municipal storm sewer 
system covered by the permit application. The following information 
shall be provided:
    (1) The location of known municipal storm sewer system outfalls 
discharging to waters of the United States;
    (2) A description of the land use activities (e.g. divisions 
indicating undeveloped, residential, commercial, agricultural and 
industrial uses) accompanied with estimates of population densities and 
projected growth for a ten year period within the drainage area served 
by the separate storm sewer. For each land use type, an estimate of an 
average runoff coefficient shall be provided;
    (3) The location and a description of the activities of the facility 
of each currently operating or closed municipal landfill or other 
treatment, storage or disposal facility for municipal waste;
    (4) The location and the permit number of any known discharge to the 
municipal storm sewer that has been issued a NPDES permit;
    (5) The location of major structural controls for storm water 
discharge (retention basins, detention basins, major infiltration 
devices, etc.); and
    (6) The identification of publicly owned parks, recreational areas, 
and other open lands.
    (iv) Discharge characterization. (A) Monthly mean rain and snow fall 
estimates (or summary of weather bureau data) and the monthly average 
number of storm events.
    (B) Existing quantitative data describing the volume and quality of 
discharges from the municipal storm sewer, including a description of 
the outfalls sampled, sampling procedures and analytical methods used.
    (C) A list of water bodies that receive discharges from the 
municipal separate storm sewer system, including downstream segments, 
lakes and estuaries, where pollutants from the system discharges may 
accumulate and cause water degradation and a brief description of known 
water quality impacts. At a minimum, the description of impacts shall 
include a description of whether the water bodies receiving such 
discharges have been:
    (1) Assessed and reported in section 305(b) reports submitted by the 
State, the basis for the assessment (evaluated or monitored), a summary 
of designated use support and attainment of Clean Water Act (CWA) goals 
(fishable and swimmable waters), and causes of nonsupport of designated 
uses;
    (2) Listed under section 304(l)(1)(A)(i), section 304(l)(1)(A)(ii), 
or section 304(l)(1)(B) of the CWA that is not expected to meet water 
quality standards or water quality goals;
    (3) Listed in State Nonpoint Source Assessments required by section 
319(a) of the CWA that, without additional action to control nonpoint 
sources of pollution, cannot reasonably be expected to attain or 
maintain water

[[Page 214]]

quality standards due to storm sewers, construction, highway maintenance 
and runoff from municipal landfills and municipal sludge adding 
significant pollution (or contributing to a violation of water quality 
standards);
    (4) Identified and classified according to eutrophic condition of 
publicly owned lakes listed in State reports required under section 
314(a) of the CWA (include the following: A description of those 
publicly owned lakes for which uses are known to be impaired; a 
description of procedures, processes and methods to control the 
discharge of pollutants from municipal separate storm sewers into such 
lakes; and a description of methods and procedures to restore the 
quality of such lakes);
    (5) Areas of concern of the Great Lakes identified by the 
International Joint Commission;
    (6) Designated estuaries under the National Estuary Program under 
section 320 of the CWA;
    (7) Recognized by the applicant as highly valued or sensitive 
waters;
    (8) Defined by the State or U.S. Fish and Wildlife Services's 
National Wetlands Inventory as wetlands; and
    (9) Found to have pollutants in bottom sediments, fish tissue or 
biosurvey data.
    (D) Field screening. Results of a field screening analysis for 
illicit connections and illegal dumping for either selected field 
screening points or major outfalls covered in the permit application. At 
a minimum, a screening analysis shall include a narrative description, 
for either each field screening point or major outfall, of visual 
observations made during dry weather periods. If any flow is observed, 
two grab samples shall be collected during a 24 hour period with a 
minimum period of four hours between samples. For all such samples, a 
narrative description of the color, odor, turbidity, the presence of an 
oil sheen or surface scum as well as any other relevant observations 
regarding the potential presence of non-storm water discharges or 
illegal dumping shall be provided. In addition, a narrative description 
of the results of a field analysis using suitable methods to estimate 
pH, total chlorine, total copper, total phenol, and detergents (or 
surfactants) shall be provided along with a description of the flow 
rate. Where the field analysis does not involve analytical methods 
approved under 40 CFR part 136, the applicant shall provide a 
description of the method used including the name of the manufacturer of 
the test method along with the range and accuracy of the test. Field 
screening points shall be either major outfalls or other outfall points 
(or any other point of access such as manholes) randomly located 
throughout the storm sewer system by placing a grid over a drainage 
system map and identifying those cells of the grid which contain a 
segment of the storm sewer system or major outfall. The field screening 
points shall be established using the following guidelines and criteria:
    (1) A grid system consisting of perpendicular north-south and east-
west lines spaced \1/4\ mile apart shall be overlayed on a map of the 
municipal storm sewer system, creating a series of cells;
    (2) All cells that contain a segment of the storm sewer system shall 
be identified; one field screening point shall be selected in each cell; 
major outfalls may be used as field screening points;
    (3) Field screening points should be located downstream of any 
sources of suspected illegal or illicit activity;
    (4) Field screening points shall be located to the degree 
practicable at the farthest manhole or other accessible location 
downstream in the system, within each cell; however, safety of personnel 
and accessibility of the location should be considered in making this 
determination;
    (5) Hydrological conditions; total drainage area of the site; 
population density of the site; traffic density; age of the structures 
or buildings in the area; history of the area; and land use types;
    (6) For medium municipal separate storm sewer systems, no more than 
250 cells need to have identified field screening points; in large 
municipal separate storm sewer systems, no more than 500 cells need to 
have identified field screening points; cells established by the grid 
that contain no storm sewer segments will be eliminated from 
consideration; if fewer than 250 cells in medium municipal sewers are 
created,

[[Page 215]]

and fewer than 500 in large systems are created by the overlay on the 
municipal sewer map, then all those cells which contain a segment of the 
sewer system shall be subject to field screening (unless access to the 
separate storm sewer system is impossible); and
    (7) Large or medium municipal separate storm sewer systems which are 
unable to utilize the procedures described in paragraphs (d)(1)(iv)(D) 
(1) through (6) of this section, because a sufficiently detailed map of 
the separate storm sewer systems is unavailable, shall field screen no 
more than 500 or 250 major outfalls respectively (or all major outfalls 
in the system, if less); in such circumstances, the applicant shall 
establish a grid system consisting of north-south and east-west lines 
spaced \1/4\ mile apart as an overlay to the boundaries of the municipal 
storm sewer system, thereby creating a series of cells; the applicant 
will then select major outfalls in as many cells as possible until at 
least 500 major outfalls (large municipalities) or 250 major outfalls 
(medium municipalities) are selected; a field screening analysis shall 
be undertaken at these major outfalls.
    (E) Characterization plan. Information and a proposed program to 
meet the requirements of paragraph (d)(2)(iii) of this section. Such 
description shall include: the location of outfalls or field screening 
points appropriate for representative data collection under paragraph 
(d)(2)(iii)(A) of this section, a description of why the outfall or 
field screening point is representative, the seasons during which 
sampling is intended, a description of the sampling equipment. The 
proposed location of outfalls or field screening points for such 
sampling should reflect water quality concerns (see paragraph 
(d)(1)(iv)(C) of this section) to the extent practicable.
    (v) Management programs. (A) A description of the existing 
management programs to control pollutants from the municipal separate 
storm sewer system. The description shall provide information on 
existing structural and source controls, including operation and 
maintenance measures for structural controls, that are currently being 
implemented. Such controls may include, but are not limited to: 
Procedures to control pollution resulting from construction activities; 
floodplain management controls; wetland protection measures; best 
management practices for new subdivisions; and emergency spill response 
programs. The description may address controls established under State 
law as well as local requirements.
    (B) A description of the existing program to identify illicit 
connections to the municipal storm sewer system. The description should 
include inspection procedures and methods for detecting and preventing 
illicit discharges, and describe areas where this program has been 
implemented.
    (vi) Fiscal resources. (A) A description of the financial resources 
currently available to the municipality to complete part 2 of the permit 
application. A description of the municipality's budget for existing 
storm water programs, including an overview of the municipality's 
financial resources and budget, including overall indebtedness and 
assets, and sources of funds for storm water programs.
    (2) Part 2. Part 2 of the application shall consist of:
    (i) Adequate legal authority. A demonstration that the applicant can 
operate pursuant to legal authority established by statute, ordinance or 
series of contracts which authorizes or enables the applicant at a 
minimum to:
    (A) Control through ordinance, permit, contract, order or similar 
means, the contribution of pollutants to the municipal storm sewer by 
storm water discharges associated with industrial activity and the 
quality of storm water discharged from sites of industrial activity;
    (B) Prohibit through ordinance, order or similar means, illicit 
discharges to the municipal separate storm sewer;
    (C) Control through ordinance, order or similar means the discharge 
to a municipal separate storm sewer of spills, dumping or disposal of 
materials other than storm water;
    (D) Control through interagency agreements among coapplicants the 
contribution of pollutants from one portion of the municipal system to 
another portion of the municipal system;

[[Page 216]]

    (E) Require compliance with conditions in ordinances, permits, 
contracts or orders; and
    (F) Carry out all inspection, surveillance and monitoring procedures 
necessary to determine compliance and noncompliance with permit 
conditions including the prohibition on illicit discharges to the 
municipal separate storm sewer.
    (ii) Source identification. The location of any major outfall that 
discharges to waters of the United States that was not reported under 
paragraph (d)(1)(iii)(B)(1) of this section. Provide an inventory, 
organized by watershed of the name and address, and a description (such 
as SIC codes) which best reflects the principal products or services 
provided by each facility which may discharge, to the municipal separate 
storm sewer, storm water associated with industrial activity;
    (iii) Characterization data. When ``quantitative data'' for a 
pollutant are required under paragraph (d)(2)(iii)(A)(3) of this 
section, the applicant must collect a sample of effluent in accordance 
with 40 CFR 122.21(g)(7) and analyze it for the pollutant in accordance 
with analytical methods approved under part 136 of this chapter. When no 
analytical method is approved the applicant may use any suitable method 
but must provide a description of the method. The applicant must provide 
information characterizing the quality and quantity of discharges 
covered in the permit application, including:
    (A) Quantitative data from representative outfalls designated by the 
Director (based on information received in part 1 of the application, 
the Director shall designate between five and ten outfalls or field 
screening points as representative of the commercial, residential and 
industrial land use activities of the drainage area contributing to the 
system or, where there are less than five outfalls covered in the 
application, the Director shall designate all outfalls) developed as 
follows:
    (1) For each outfall or field screening point designated under this 
subparagraph, samples shall be collected of storm water discharges from 
three storm events occurring at least one month apart in accordance with 
the requirements at Sec. 122.21(g)(7) (the Director may allow 
exemptions to sampling three storm events when climatic conditions 
create good cause for such exemptions);
    (2) A narrative description shall be provided of the date and 
duration of the storm event(s) sampled, rainfall estimates of the storm 
event which generated the sampled discharge and the duration between the 
storm event sampled and the end of the previous measurable (greater than 
0.1 inch rainfall) storm event;
    (3) For samples collected and described under paragraphs (d)(2)(iii) 
(A)(1) and (A)(2) of this section, quantitative data shall be provided 
for: the organic pollutants listed in Table II; the pollutants listed in 
Table III (toxic metals, cyanide, and total phenols) of appendix D of 40 
CFR part 122, and for the following pollutants:

Total suspended solids (TSS)
Total dissolved solids (TDS)
COD
BOD5
Oil and grease
Fecal coliform
Fecal streptococcus
pH
Total Kjeldahl nitrogen
Nitrate plus nitrite
Dissolved phosphorus
Total ammonia plus organic nitrogen
Total phosphorus

    (4) Additional limited quantitative data required by the Director 
for determining permit conditions (the Director may require that 
quantitative data shall be provided for additional parameters, and may 
establish sampling conditions such as the location, season of sample 
collection, form of precipitation (snow melt, rainfall) and other 
parameters necessary to insure representativeness);
    (B) Estimates of the annual pollutant load of the cumulative 
discharges to waters of the United States from all identified municipal 
outfalls and the event mean concentration of the cumulative discharges 
to waters of the United States from all identified municipal outfalls 
during a storm event (as described under Sec. 122.21(c)(7)) for 
BOD5, COD, TSS, dissolved solids, total nitrogen, total 
ammonia plus organic nitrogen, total phosphorus, dissolved phosphorus, 
cadmium, copper, lead,

[[Page 217]]

and zinc. Estimates shall be accompanied by a description of the 
procedures for estimating constituent loads and concentrations, 
including any modelling, data analysis, and calculation methods;
    (C) A proposed schedule to provide estimates for each major outfall 
identified in either paragraph (d)(2)(ii) or (d)(1)(iii)(B)(1) of this 
section of the seasonal pollutant load and of the event mean 
concentration of a representative storm for any constituent detected in 
any sample required under paragraph (d)(2)(iii)(A) of this section; and
    (D) A proposed monitoring program for representative data collection 
for the term of the permit that describes the location of outfalls or 
field screening points to be sampled (or the location of instream 
stations), why the location is representative, the frequency of 
sampling, parameters to be sampled, and a description of sampling 
equipment.
    (iv) Proposed management program. A proposed management program 
covers the duration of the permit. It shall include a comprehensive 
planning process which involves public participation and where necessary 
intergovernmental coordination, to reduce the discharge of pollutants to 
the maximum extent practicable using management practices, control 
techniques and system, design and engineering methods, and such other 
provisions which are appropriate. The program shall also include a 
description of staff and equipment available to implement the program. 
Separate proposed programs may be submitted by each coapplicant. 
Proposed programs may impose controls on a systemwide basis, a watershed 
basis, a jurisdiction basis, or on individual outfalls. Proposed 
programs will be considered by the Director when developing permit 
conditions to reduce pollutants in discharges to the maximum extent 
practicable. Proposed management programs shall describe priorities for 
implementing controls. Such programs shall be based on:
    (A) A description of structural and source control measures to 
reduce pollutants from runoff from commercial and residential areas that 
are discharged from the municipal storm sewer system that are to be 
implemented during the life of the permit, accompanied with an estimate 
of the expected reduction of pollutant loads and a proposed schedule for 
implementing such controls. At a minimum, the description shall include:
    (1) A description of maintenance activities and a maintenance 
schedule for structural controls to reduce pollutants (including 
floatables) in discharges from municipal separate storm sewers;
    (2) A description of planning procedures including a comprehensive 
master plan to develop, implement and enforce controls to reduce the 
discharge of pollutants from municipal separate storm sewers which 
receive discharges from areas of new development and significant 
redevelopment. Such plan shall address controls to reduce pollutants in 
discharges from municipal separate storm sewers after construction is 
completed. (Controls to reduce pollutants in discharges from municipal 
separate storm sewers containing construction site runoff are addressed 
in paragraph (d)(2)(iv)(D) of this section;
    (3) A description of practices for operating and maintaining public 
streets, roads and highways and procedures for reducing the impact on 
receiving waters of discharges from municipal storm sewer systems, 
including pollutants discharged as a result of deicing activities;
    (4) A description of procedures to assure that flood management 
projects assess the impacts on the water quality of receiving water 
bodies and that existing structural flood control devices have been 
evaluated to determine if retrofitting the device to provide additional 
pollutant removal from storm water is feasible;
    (5) A description of a program to monitor pollutants in runoff from 
operating or closed municipal landfills or other treatment, storage or 
disposal facilities for municipal waste, which shall identify priorities 
and procedures for inspections and establishing and implementing control 
measures for such discharges (this program can be coordinated with the 
program developed under paragraph (d)(2)(iv)(C) of this section); and

[[Page 218]]

    (6) A description of a program to reduce to the maximum extent 
practicable, pollutants in discharges from municipal separate storm 
sewers associated with the application of pesticides, herbicides and 
fertilizer which will include, as appropriate, controls such as 
educational activities, permits, certifications and other measures for 
commercial applicators and distributors, and controls for application in 
public right-of-ways and at municipal facilities.
    (B) A description of a program, including a schedule, to detect and 
remove (or require the discharger to the municipal separate storm sewer 
to obtain a separate NPDES permit for) illicit discharges and improper 
disposal into the storm sewer. The proposed program shall include:
    (1) A description of a program, including inspections, to implement 
and enforce an ordinance, orders or similar means to prevent illicit 
discharges to the municipal separate storm sewer system; this program 
description shall address all types of illicit discharges, however the 
following category of non-storm water discharges or flows shall be 
addressed where such discharges are identified by the municipality as 
sources of pollutants to waters of the United States: water line 
flushing, landscape irrigation, diverted stream flows, rising ground 
waters, uncontaminated ground water infiltration (as defined at 40 CFR 
35.2005(20)) to separate storm sewers, uncontaminated pumped ground 
water, discharges from potable water sources, foundation drains, air 
conditioning condensation, irrigation water, springs, water from crawl 
space pumps, footing drains, lawn watering, individual residential car 
washing, flows from riparian habitats and wetlands, dechlorinated 
swimming pool discharges, and street wash water (program descriptions 
shall address discharges or flows from fire fighting only where such 
discharges or flows are identified as significant sources of pollutants 
to waters of the United States);
    (2) A description of procedures to conduct on-going field screening 
activities during the life of the permit, including areas or locations 
that will be evaluated by such field screens;
    (3) A description of procedures to be followed to investigate 
portions of the separate storm sewer system that, based on the results 
of the field screen, or other appropriate information, indicate a 
reasonable potential of containing illicit discharges or other sources 
of non-storm water (such procedures may include: sampling procedures for 
constituents such as fecal coliform, fecal streptococcus, surfactants 
(MBAS), residual chlorine, fluorides and potassium; testing with 
fluorometric dyes; or conducting in storm sewer inspections where safety 
and other considerations allow. Such description shall include the 
location of storm sewers that have been identified for such evaluation);
    (4) A description of procedures to prevent, contain, and respond to 
spills that may discharge into the municipal separate storm sewer;
    (5) A description of a program to promote, publicize, and facilitate 
public reporting of the presence of illicit discharges or water quality 
impacts associated with discharges from municipal separate storm sewers;
    (6) A description of educational activities, public information 
activities, and other appropriate activities to facilitate the proper 
management and disposal of used oil and toxic materials; and
    (7) A description of controls to limit infiltration of seepage from 
municipal sanitary sewers to municipal separate storm sewer systems 
where necessary;
    (C) A description of a program to monitor and control pollutants in 
storm water discharges to municipal systems from municipal landfills, 
hazardous waste treatment, disposal and recovery facilities, industrial 
facilities that are subject to section 313 of title III of the Superfund 
Amendments and Reauthorization Act of 1986 (SARA), and industrial 
facilities that the municipal permit applicant determines are 
contributing a substantial pollutant loading to the municipal storm 
sewer system. The program shall:
    (1) Identify priorities and procedures for inspections and 
establishing and implementing control measures for such discharges;
    (2) Describe a monitoring program for storm water discharges 
associated

[[Page 219]]

with the industrial facilities identified in paragraph (d)(2)(iv)(C) of 
this section, to be implemented during the term of the permit, including 
the submission of quantitative data on the following constituents: any 
pollutants limited in effluent guidelines subcategories, where 
applicable; any pollutant listed in an existing NPDES permit for a 
facility; oil and grease, COD, pH, BOD5, TSS, total 
phosphorus, total Kjeldahl nitrogen, nitrate plus nitrite nitrogen, and 
any information on discharges required under Sec. 122.21(g)(7) (vi) and 
(vii).
    (D) A description of a program to implement and maintain structural 
and non-structural best management practices to reduce pollutants in 
storm water runoff from construction sites to the municipal storm sewer 
system, which shall include:
    (1) A description of procedures for site planning which incorporate 
consideration of potential water quality impacts;
    (2) A description of requirements for nonstructural and structural 
best management practices;
    (3) A description of procedures for identifying priorities for 
inspecting sites and enforcing control measures which consider the 
nature of the construction activity, topography, and the characteristics 
of soils and receiving water quality; and
    (4) A description of appropriate educational and training measures 
for construction site operators.
    (v) Assessment of controls. Estimated reductions in loadings of 
pollutants from discharges of municipal storm sewer constituents from 
municipal storm sewer systems expected as the result of the municipal 
storm water quality management program. The assessment shall also 
identify known impacts of storm water controls on ground water.
    (vi) Fiscal analysis. For each fiscal year to be covered by the 
permit, a fiscal analysis of the necessary capital and operation and 
maintenance expenditures necessary to accomplish the activities of the 
programs under paragraphs (d)(2) (iii) and (iv) of this section. Such 
analysis shall include a description of the source of funds that are 
proposed to meet the necessary expenditures, including legal 
restrictions on the use of such funds.
    (vii) Where more than one legal entity submits an application, the 
application shall contain a description of the roles and 
responsibilities of each legal entity and procedures to ensure effective 
coordination.
    (viii) Where requirements under paragraph (d)(1)(iv)(E), (d)(2)(ii), 
(d)(2)(iii)(B) and (d)(2)(iv) of this section are not practicable or are 
not applicable, the Director may exclude any operator of a discharge 
from a municipal separate storm sewer which is designated under 
paragraph (a)(1)(v), (b)(4)(ii) or (b)(7)(ii) of this section from such 
requirements. The Director shall not exclude the operator of a discharge 
from a municipal separate storm sewer identified in appendix F, G, H or 
I of part 122, from any of the permit application requirements under 
this paragraph except where authorized under this section.
    (e) Application deadlines. Any operator of a point source required 
to obtain a permit under this section that does not have an effective 
NPDES permit authorizing discharges from its storm water outfalls shall 
submit an application in accordance with the following deadlines:
    (1) Storm water discharges associated with industrial activity. (i) 
Except as provided in paragraph (e)(1)(ii) of this section, for any 
storm water discharge associated with industrial activity identified in 
paragraphs (b)(14)(i) through (xi) of this section, that is not part of 
a group application as described in paragraph (c)(2) of this section or 
that is not authorized by a storm water general permit, a permit 
application made pursuant to paragraph (c) of this section must be 
submitted to the Director by October 1, 1992;
    (ii) For any storm water discharge associated with industrial 
activity from a facility that is owned or operated by a municipality 
with a population of less than 100,000 that is not authorized by a 
general or individual permit, other than an airport, powerplant, or 
uncontrolled sanitary landfill, the permit application must be submitted 
to the Director by March 10, 2003.

[[Page 220]]

    (2) For any group application submitted in accordance with paragraph 
(c)(2) of this section:
    (i) Part 1. (A) Except as provided in paragraph (e)(2)(i)(B) of this 
section, part 1 of the application shall be submitted to the Director, 
Office of Wastewater Enforcement and Compliance by September 30, 1991;
    (B) Any municipality with a population of less than 250,000 shall 
not be required to submit a part 1 application before May 18, 1992.
    (C) For any storm water discharge associated with industrial 
activity from a facility that is owned or operated by a municipality 
with a population of less than 100,000 other than an airport, 
powerplant, or uncontrolled sanitary landfill, permit applications 
requirements are reserved.
    (ii) Based on information in the part 1 application, the Director 
will approve or deny the members in the group application within 60 days 
after receiving part 1 of the group application.
    (iii) Part 2. (A) Except as provided in paragraph (e)(2)(iii)(B) of 
this section, part 2 of the application shall be submittted to the 
Director, Office of Wastewater Enforcement and Compliance by October 1, 
1992;
    (B) Any municipality with a population of less than 250,000 shall 
not be required to submit a part 1 application before May 17, 1993.
    (C) For any storm water discharge associated with industrial 
activity from a facility that is owned or operated by a municipality 
with a population of less than 100,000 other than an airport, 
powerplant, or uncontrolled sanitary landfill, permit applications 
requirements are reserved.
    (iv) Rejected facilities. (A) Except as provided in paragraph 
(e)(2)(iv)(B) of this section, facilities that are rejected as members 
of the group shall submit an individual application (or obtain coverage 
under an applicable general permit) no later than 12 months after the 
date of receipt of the notice of rejection or October 1, 1992, whichever 
comes first.
    (B) Facilities that are owned or operated by a municipality and that 
are rejected as members of part 1 group application shall submit an 
individual application no later than 180 days after the date of receipt 
of the notice of rejection or October 1, 1992, whichever is later.
    (v) A facility listed under paragraph (b)(14) (i)-(xi) of this 
section may add on to a group application submitted in accordance with 
paragraph (e)(2)(i) of this section at the discretion of the Office of 
Water Enforcement and Permits, and only upon a showing of good cause by 
the facility and the group applicant; the request for the addition of 
the facility shall be made no later than February 18, 1992; the addition 
of the facility shall not cause the percentage of the facilities that 
are required to submit quantitative data to be less than 10%, unless 
there are over 100 facilities in the group that are submitting 
quantitative data; approval to become part of group application must be 
obtained from the group or the trade association representing the 
individual facilities.
    (3) For any discharge from a large municipal separate storm sewer 
system;
    (i) Part 1 of the application shall be submitted to the Director by 
November 18, 1991;
    (ii) Based on information received in the part 1 application the 
Director will approve or deny a sampling plan under paragraph 
(d)(1)(iv)(E) of this section within 90 days after receiving the part 1 
application;
    (iii) Part 2 of the application shall be submitted to the Director 
by November 16, 1992.
    (4) For any discharge from a medium municipal separate storm sewer 
system;
    (i) Part 1 of the application shall be submitted to the Director by 
May 18, 1992.
    (ii) Based on information received in the part 1 application the 
Director will approve or deny a sampling plan under paragraph 
(d)(1)(iv)(E) of this section within 90 days after receiving the part 1 
application.
    (iii) Part 2 of the application shall be submitted to the Director 
by May 17, 1993.
    (5) A permit application shall be submitted to the Director within 
180 days of notice, unless permission for a later date is granted by the 
Director (see Sec. 124.52(c) of this chapter), for:

[[Page 221]]

    (i) A storm water discharge that the Director, or in States with 
approved NPDES programs, either the Director or the EPA Regional 
Administrator, determines that the discharge contributes to a violation 
of a water quality standard or is a significant contributor of 
pollutants to waters of the United States (see paragraphs (a)(1)(v) and 
(b)(15)(ii) of this section);
    (ii) A storm water discharge subject to paragraph (c)(1)(v) of this 
section.
    (6) Facilities with existing NPDES permits for storm water 
discharges associated with industrial activity shall maintain existing 
permits. Facilities with permits for storm water discharges associated 
with industrial activity which expire on or after May 18, 1992 shall 
submit a new application in accordance with the requirements of 40 CFR 
122.21 and 40 CFR 122.26(c) (Form 1, Form 2F, and other applicable 
Forms) 180 days before the expiration of such permits.
    (7) The Director shall issue or deny permits for discharges composed 
entirely of storm water under this section in accordance with the 
following schedule:
    (i)(A) Except as provided in paragraph (e)(7)(i)(B) of this section, 
the Director shall issue or deny permits for storm water discharges 
associated with industrial activity no later than October 1, 1993, or, 
for new sources or existing sources which fail to submit a complete 
permit application by October 1, 1992, one year after receipt of a 
complete permit application;
    (B) For any municipality with a population of less than 250,000 
which submits a timely Part I group application under paragraph 
(e)(2)(i)(B) of this section, the Director shall issue or deny permits 
for storm water discharges associated with industrial activity no later 
than May 17, 1994, or, for any such municipality which fails to submit a 
complete Part II group permit application by May 17, 1993, one year 
after receipt of a complete permit application;
    (ii) The Director shall issue or deny permits for large municipal 
separate storm sewer systems no later than November 16, 1993, or, for 
new sources or existing sources which fail to submit a complete permit 
application by November 16, 1992, one year after receipt of a complete 
permit application;
    (iii) The Director shall issue or deny permits for medium municipal 
separate storm sewer systems no later than May 17, 1994, or, for new 
sources or existing sources which fail to submit a complete permit 
application by May 17, 1993, one year after receipt of a complete permit 
application.
    (8) For any storm water discharge associated with small construction 
activities identified in paragraph (b)(15)(i) of this section, see Sec. 
122.21(c)(1). Discharges from these sources require permit authorization 
by March 10, 2003, unless designated for coverage before then.
    (9) For any discharge from a regulated small MS4, the permit 
application made under Sec. 122.33 must be submitted to the Director 
by:
    (i) March 10, 2003 if designated under Sec. 122.32(a)(1) unless 
your MS4 serves a jurisdiction with a population under 10,000 and the 
NPDES permitting authority has established a phasing schedule under 
Sec. 123.35(d)(3) (see Sec. 122.33(c)(1)); or
    (ii) Within 180 days of notice, unless the NPDES permitting 
authority grants a later date, if designated under Sec. 122.32(a)(2) 
(see Sec. 122.33(c)(2)).
    (f) Petitions. (1) Any operator of a municipal separate storm sewer 
system may petition the Director to require a separate NPDES permit (or 
a permit issued under an approved NPDES State program) for any discharge 
into the municipal separate storm sewer system.
    (2) Any person may petition the Director to require a NPDES permit 
for a discharge which is composed entirely of storm water which 
contributes to a violation of a water quality standard or is a 
significant contributor of pollutants to waters of the United States.
    (3) The owner or operator of a municipal separate storm sewer system 
may petition the Director to reduce the Census estimates of the 
population served by such separate system to account for storm water 
discharged to combined sewers as defined by 40 CFR 35.2005(b)(11) that 
is treated in a publicly owned treatment works. In municipalities in 
which combined sewers are operated, the Census estimates of

[[Page 222]]

population may be reduced proportional to the fraction, based on 
estimated lengths, of the length of combined sewers over the sum of the 
length of combined sewers and municipal separate storm sewers where an 
applicant has submitted the NPDES permit number associated with each 
discharge point and a map indicating areas served by combined sewers and 
the location of any combined sewer overflow discharge point.
    (4) Any person may petition the Director for the designation of a 
large, medium, or small municipal separate storm sewer system as defined 
by paragraph (b)(4)(iv), (b)(7)(iv), or (b)(16) of this section.
    (5) The Director shall make a final determination on any petition 
received under this section within 90 days after receiving the petition 
with the exception of petitions to designate a small MS4 in which case 
the Director shall make a final determination on the petition within 180 
days after its receipt.
    (g) Conditional exclusion for ``no exposure'' of industrial 
activities and materials to storm water. Discharges composed entirely of 
storm water are not storm water discharges associated with industrial 
activity if there is ``no exposure'' of industrial materials and 
activities to rain, snow, snowmelt and/or runoff, and the discharger 
satisfies the conditions in paragraphs (g)(1) through (g)(4) of this 
section. ``No exposure'' means that all industrial materials and 
activities are protected by a storm resistant shelter to prevent 
exposure to rain, snow, snowmelt, and/or runoff. Industrial materials or 
activities include, but are not limited to, material handling equipment 
or activities, industrial machinery, raw materials, intermediate 
products, by-products, final products, or waste products. Material 
handling activities include the storage, loading and unloading, 
transportation, or conveyance of any raw material, intermediate product, 
final product or waste product.
    (1) Qualification. To qualify for this exclusion, the operator of 
the discharge must:
    (i) Provide a storm resistant shelter to protect industrial 
materials and activities from exposure to rain, snow, snow melt, and 
runoff;
    (ii) Complete and sign (according to Sec. 122.22) a certification 
that there are no discharges of storm water contaminated by exposure to 
industrial materials and activities from the entire facility, except as 
provided in paragraph (g)(2) of this section;
    (iii) Submit the signed certification to the NPDES permitting 
authority once every five years;
    (iv) Allow the Director to inspect the facility to determine 
compliance with the ``no exposure'' conditions;
    (v) Allow the Director to make any ``no exposure'' inspection 
reports available to the public upon request; and
    (vi) For facilities that discharge through an MS4, upon request, 
submit a copy of the certification of ``no exposure'' to the MS4 
operator, as well as allow inspection and public reporting by the MS4 
operator.
    (2) Industrial materials and activities not requiring storm 
resistant shelter. To qualify for this exclusion, storm resistant 
shelter is not required for:
    (i) Drums, barrels, tanks, and similar containers that are tightly 
sealed, provided those containers are not deteriorated and do not leak 
(``Sealed'' means banded or otherwise secured and without operational 
taps or valves);
    (ii) Adequately maintained vehicles used in material handling; and
    (iii) Final products, other than products that would be mobilized in 
storm water discharge (e.g., rock salt).
    (3) Limitations. (i) Storm water discharges from construction 
activities identified in paragraphs (b)(14)(x) and (b)(15) are not 
eligible for this conditional exclusion.
    (ii) This conditional exclusion from the requirement for an NPDES 
permit is available on a facility-wide basis only, not for individual 
outfalls. If a facility has some discharges of storm water that would 
otherwise be ``no exposure'' discharges, individual permit requirements 
should be adjusted accordingly.
    (iii) If circumstances change and industrial materials or activities 
become exposed to rain, snow, snow melt, and/or runoff, the conditions 
for this exclusion no longer apply. In such cases, the discharge becomes 
subject to enforcement for un-permitted discharge. Any conditionally 
exempt discharger who

[[Page 223]]

anticipates changes in circumstances should apply for and obtain permit 
authorization prior to the change of circumstances.
    (iv) Notwithstanding the provisions of this paragraph, the NPDES 
permitting authority retains the authority to require permit 
authorization (and deny this exclusion) upon making a determination that 
the discharge causes, has a reasonable potential to cause, or 
contributes to an instream excursion above an applicable water quality 
standard, including designated uses.
    (4) Certification. The no exposure certification must require the 
submission of the following information, at a minimum, to aid the NPDES 
permitting authority in determining if the facility qualifies for the no 
exposure exclusion:
    (i) The legal name, address and phone number of the discharger (see 
Sec. 122.21(b));
    (ii) The facility name and address, the county name and the latitude 
and longitude where the facility is located;
    (iii) The certification must indicate that none of the following 
materials or activities are, or will be in the foreseeable future, 
exposed to precipitation:
    (A) Using, storing or cleaning industrial machinery or equipment, 
and areas where residuals from using, storing or cleaning industrial 
machinery or equipment remain and are exposed to storm water;
    (B) Materials or residuals on the ground or in storm water inlets 
from spills/leaks;
    (C) Materials or products from past industrial activity;
    (D) Material handling equipment (except adequately maintained 
vehicles);
    (E) Materials or products during loading/unloading or transporting 
activities;
    (F) Materials or products stored outdoors (except final products 
intended for outside use, e.g., new cars, where exposure to storm water 
does not result in the discharge of pollutants);
    (G) Materials contained in open, deteriorated or leaking storage 
drums, barrels, tanks, and similar containers;
    (H) Materials or products handled/stored on roads or railways owned 
or maintained by the discharger;
    (I) Waste material (except waste in covered, non-leaking containers, 
e.g., dumpsters);
    (J) Application or disposal of process wastewater (unless otherwise 
permitted); and
    (K) Particulate matter or visible deposits of residuals from roof 
stacks/vents not otherwise regulated, i.e., under an air quality control 
permit, and evident in the storm water outflow;
    (iv) All ``no exposure'' certifications must include the following 
certification statement, and be signed in accordance with the signatory 
requirements of Sec. 122.22: ``I certify under penalty of law that I 
have read and understand the eligibility requirements for claiming a 
condition of ``no exposure'' and obtaining an exclusion from NPDES storm 
water permitting; and that there are no discharges of storm water 
contaminated by exposure to industrial activities or materials from the 
industrial facility identified in this document (except as allowed under 
paragraph (g)(2)) of this section. I understand that I am obligated to 
submit a no exposure certification form once every five years to the 
NPDES permitting authority and, if requested, to the operator of the 
local MS4 into which this facility discharges (where applicable). I 
understand that I must allow the NPDES permitting authority, or MS4 
operator where the discharge is into the local MS4, to perform 
inspections to confirm the condition of no exposure and to make such 
inspection reports publicly available upon request. I understand that I 
must obtain coverage under an NPDES permit prior to any point source 
discharge of storm water from the facility. I certify under penalty of 
law that this document and all attachments were prepared under my 
direction or supervision in accordance with a system designed to assure 
that qualified personnel properly gathered and evaluated the information 
submitted. Based upon my inquiry of the person or persons who manage the 
system, or those persons directly involved in gathering the information, 
the information submitted is to the best of my knowledge and belief 
true, accurate and complete. I am aware there are significant penalties 
for submitting false

[[Page 224]]

information, including the possibility of fine and imprisonment for 
knowing violations.''

[55 FR 48063, Nov. 16, 1990]

    Editorial Note: For Federal Register citations affecting Sec. 
122.26, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 122.27  Silvicultural activities (applicable to State NPDES programs, see 

Sec. 123.25).

    (a) Permit requirement. Silvicultural point sources, as defined in 
this section, as point sources subject to the NPDES permit program.
    (b) Definitions. (1) Silvicultural point source means any 
discernible, confined and discrete conveyance related to rock crushing, 
gravel washing, log sorting, or log storage facilities which are 
operated in connection with silvicultural activities and from which 
pollutants are discharged into waters of the United States. The term 
does not include non-point source silvicultural activities such as 
nursery operations, site preparation, reforestation and subsequent 
cultural treatment, thinning, prescribed burning, pest and fire control, 
harvesting operations, surface drainage, or road construction and 
maintenance from which there is natural runoff. However, some of these 
activities (such as stream crossing for roads) may involve point source 
discharges of dredged or fill material which may require a CWA section 
404 permit (See 33 CFR 209.120 and part 233).
    (2) Rock crushing and gravel washing facilities means facilities 
which process crushed and broken stone, gravel, and riprap (See 40 CFR 
part 436, subpart B, including the effluent limitations guidelines).
    (3) Log sorting and log storage facilities means facilities whose 
discharges result from the holding of unprocessed wood, for example, 
logs or roundwood with bark or after removal of bark held in self-
contained bodies of water (mill ponds or log ponds) or stored on land 
where water is applied intentionally on the logs (wet decking). (See 40 
CFR part 429, subpart I, including the effluent limitations guidelines).



Sec. 122.28  General permits (applicable to State NPDES programs, see Sec. 

123.25).

    (a) Coverage. The Director may issue a general permit in accordance 
with the following:
    (1) Area. The general permit shall be written to cover one or more 
categories or subcategories of discharges or sludge use or disposal 
practices or facilities described in the permit under paragraph 
(a)(2)(ii) of this section, except those covered by individual permits, 
within a geographic area. The area should correspond to existing 
geographic or political boundaries such as:
    (i) Designated planning areas under sections 208 and 303 of CWA;
    (ii) Sewer districts or sewer authorities;
    (iii) City, county, or State political boundaries;
    (iv) State highway systems;
    (v) Standard metropolitan statistical areas as defined by the Office 
of Management and Budget;
    (vi) Urbanized areas as designated by the Bureau of the Census 
according to criteria in 30 FR 15202 (May 1, 1974); or
    (vii) Any other appropriate division or combination of boundaries.
    (2) Sources. The general permit may be written to regulate one or 
more categories or subcategories of discharges or sludge use or disposal 
practices or facilities, within the area described in paragraph (a)(1) 
of this section, where the sources within a covered subcategory of 
discharges are either:
    (i) Storm water point sources; or (ii) One or more categories or 
subcategories of point sources other than storm water point sources, or 
one or more categories or subcategories of ``treatment works treating 
domestic sewage'', if the sources or ``treatment works treating domestic 
sewage'' within each category or subcategory all:
    (A) Involve the same or substantially similar types of operations;
    (B) Discharge the same types of wastes or engage in the same types 
of sludge use or disposal practices;
    (C) Require the same effluent limitations, operating conditions, or 
standards for sewage sludge use or disposal;
    (D) Require the same or similar monitoring; and (E) In the opinion 
of the

[[Page 225]]

Director, are more appropriately controlled under a general permit than 
under individual permits.
    (3)Water quality-based limits. Where sources within a specific 
category or subcategory of dischargers are subject to water quality-
based limits imposed pursuant to Sec. 122.44, the sources in that 
specific category or subcategory shall be subject to the same water 
quality-based effluent limitations.
    (4) Other requirements. (i) The general permit must clearly identify 
the applicable conditions for each category or subcategory of 
dischargers or treatment works treating domestic sewage covered by the 
permit.
    (ii) The general permit may exclude specified sources or areas from 
coverage.
    (b) Administration--(1) In general. General permits may be issued, 
modified, revoked and reissued, or terminated in accordance with 
applicable requirements of part 124 of this chapter or corresponding 
State regulations. Special procedures for issuance are found at Sec. 
123.44 of this chapter for States.
    (2) Authorization to discharge, or authorization to engage in sludge 
use and disposal practices. (i) Except as provided in paragraphs 
(b)(2)(v) and (b)(2)(vi) of this section, dischargers (or treatment 
works treating domestic sewage) seeking coverage under a general permit 
shall submit to the Director a written notice of intent to be covered by 
the general permit. A discharger (or treatment works treating domestic 
sewage) who fails to submit a notice of intent in accordance with the 
terms of the permit is not authorized to discharge, (or in the case of 
sludge disposal permit, to engage in a sludge use or disposal practice), 
under the terms of the general permit unless the general permit, in 
accordance with paragraph (b)(2)(v) of this section, contains a 
provision that a notice of intent is not required or the Director 
notifies a discharger (or treatment works treating domestic sewage) that 
it is covered by a general permit in accordance with paragraph 
(b)(2)(vi) of this section. A complete and timely, notice of intent 
(NOI), to be covered in accordance with general permit requirements, 
fulfills the requirements for permit applications for purposes of 
Sec. Sec. 122.6, 122.21 and 122.26.
    (ii) The contents of the notice of intent shall be specified in the 
general permit and shall require the submission of information necessary 
for adequate program implementation, including at a minimum, the legal 
name and address of the owner or operator, the facility name and 
address, type of facility or discharges, and the receiving stream(s). 
General permits for storm water discharges associated with industrial 
activity from inactive mining, inactive oil and gas operations, or 
inactive landfills occurring on Federal lands where an operator cannot 
be identified may contain alternative notice of intent requirements. All 
notices of intent shall be signed in accordance with Sec. 122.22. 
Notices of intent for coverage under a general permit for concentrated 
animal feeding operations must include the information specified in 
Sec. 122.21(i)(1), including a topographic map.
    (iii) General permits shall specify the deadlines for submitting 
notices of intent to be covered and the date(s) when a discharger is 
authorized to discharge under the permit;
    (iv) General permits shall specify whether a discharger (or 
treatment works treating domestic sewage) that has submitted a complete 
and timely notice of intent to be covered in accordance with the general 
permit and that is eligible for coverage under the permit, is authorized 
to discharge, (or in the case of a sludge disposal permit, to engage in 
a sludge use or disposal practice), in accordance with the permit either 
upon receipt of the notice of intent by the Director, after a waiting 
period specified in the general permit, on a date specified in the 
general permit, or upon receipt of notification of inclusion by the 
Director. Coverage may be terminated or revoked in accordance with 
paragraph (b)(3) of this section.
    (v) Discharges other than discharges from publicly owned treatment 
works, combined sewer overflows, municipal separate storm sewer systems, 
primary industrial facilities, and storm water discharges associated 
with industrial activity, may, at the discretion of the Director, be 
authorized to discharge

[[Page 226]]

under a general permit without submitting a notice of intent where the 
Director finds that a notice of intent requirement would be 
inappropriate. In making such a finding, the Director shall consider: 
the type of discharge; the expected nature of the discharge; the 
potential for toxic and conventional pollutants in the discharges; the 
expected volume of the discharges; other means of identifying discharges 
covered by the permit; and the estimated number of discharges to be 
covered by the permit. The Director shall provide in the public notice 
of the general permit the reasons for not requiring a notice of intent.
    (vi) The Director may notify a discharger (or treatment works 
treating domestic sewage) that it is covered by a general permit, even 
if the discharger (or treatment works treating domestic sewage) has not 
submitted a notice of intent to be covered. A discharger (or treatment 
works treating domestic sewage) so notified may request an individual 
permit under paragraph (b)(3)(iii) of this section.
    (vii) A CAFO owner or operator may be authorized to discharge under 
a general permit only in accordance with the process described in Sec. 
122.23(h).
    (3) Requiring an individual permit. (i) The Director may require any 
discharger authorized by a general permit to apply for and obtain an 
individual NPDES permit. Any interested person may petition the Director 
to take action under this paragraph. Cases where an individual NPDES 
permit may be required include the following:
    (A) The discharger or ``treatment works treating domestic sewage'' 
is not in compliance with the conditions of the general NPDES permit;
    (B) A change has occurred in the availability of demonstrated 
technology or practices for the control or abatement of pollutants 
applicable to the point source or treatment works treating domestic 
sewage;
    (C) Effluent limitation guidelines are promulgated for point sources 
covered by the general NPDES permit;
    (D) A Water Quality Management plan containing requirements 
applicable to such point sources is approved;
    (E) Circumstances have changed since the time of the request to be 
covered so that the discharger is no longer appropriately controlled 
under the general permit, or either a temporary or permanent reduction 
or elimination of the authorized discharge is necessary;
    (F) Standards for sewage sludge use or disposal have been 
promulgated for the sludge use and disposal practice covered by the 
general NPDES permit; or
    (G) The discharge(s) is a significant contributor of pollutants. In 
making this determination, the Director may consider the following 
factors:
    (1) The location of the discharge with respect to waters of the 
United States;
    (2) The size of the discharge;
    (3) The quantity and nature of the pollutants discharged to waters 
of the United States; and
    (4) Other relevant factors;
    (ii) For EPA issued general permits only, the Regional Administrator 
may require any owner or operator authorized by a general permit to 
apply for an individual NPDES permit as provided in paragraph (b)(3)(i) 
of this section, only if the owner or operator has been notified in 
writing that a permit application is required. This notice shall include 
a brief statement of the reasons for this decision, an application form, 
a statement setting a time for the owner or operator to file the 
application, and a statement that on the effective date of the 
individual NPDES permit the general permit as it applies to the 
individual permittee shall automatically terminate. The Director may 
grant additional time upon request of the applicant.
    (iii) Any owner or operator authorized by a general permit may 
request to be excluded from the coverage of the general permit by 
applying for an individual permit. The owner or operator shall submit an 
application under Sec. 122.21, with reasons supporting the request, to 
the Director no later than 90 days after the publication by EPA of the 
general permit in the Federal Register or the publication by a State in 
accordance with applicable State law. The request shall be processed 
under part 124 or applicable State procedures. The request shall be 
granted by issuing of any individual permit if

[[Page 227]]

the reasons cited by the owner or operator are adequate to support the 
request.
    (iv) When an individual NPDES permit is issued to an owner or 
operator otherwise subject to a general NPDES permit, the applicability 
of the general permit to the individual NPDES permittee is automatically 
terminated on the effective date of the individual permit.
    (v) A source excluded from a general permit solely because it 
already has an individual permit may request that the individual permit 
be revoked, and that it be covered by the general permit. Upon 
revocation of the individual permit, the general permit shall apply to 
the source.
    (c) Offshore oil and gas facilities (Not applicable to State 
programs). (1) The Regional Administrator shall, except as provided 
below, issue general permits covering discharges from offshore oil and 
gas exploration and production facilities within the Region's 
jurisdiction. Where the offshore area includes areas, such as areas of 
biological concern, for which separate permit conditions are required, 
the Regional Administrator may issue separate general permits, 
individual permits, or both. The reason for separate general permits or 
individual permits shall be set forth in the appropriate fact sheets or 
statements of basis. Any statement of basis or fact sheet for a draft 
permit shall include the Regional Administrator's tentative 
determination as to whether the permit applies to ``new sources,'' ``new 
dischargers,'' or existing sources and the reasons for this 
determination, and the Regional Administrator's proposals as to areas of 
biological concern subject either to separate individual or general 
permits. For Federally leased lands, the general permit area should 
generally be no less extensive than the lease sale area defined by the 
Department of the Interior.
    (2) Any interested person, including any prospective permittee, may 
petition the Regional Administrator to issue a general permit. Unless 
the Regional Administrator determines under paragraph (c)(1) of this 
section that no general permit is appropriate, he shall promptly provide 
a project decision schedule covering the issuance of the general permit 
or permits for any lease sale area for which the Department of the 
Interior has published a draft environmental impact statement. The 
project decision schedule shall meet the requirements of Sec. 124.3(g), 
and shall include a schedule providing for the issuance of the final 
general permit or permits not later than the date of the final notice of 
sale projected by the Department of the Interior or six months after the 
date of the request, whichever is later. The Regional Administrator may, 
at his discretion, issue a project decision schedule for offshore oil 
and gas facilities in the territorial seas.
    (3) Nothing in this paragraph (c) shall affect the authority of the 
Regional Administrator to require an individual permit under Sec. 
122.28(b)(3)(i) (A) through (G).

(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; 49 
FR 38048, Sept. 26, 1984; 50 FR 6940, Feb. 19, 1985; 54 FR 18782, May 2, 
1989; 55 FR 48072, Nov. 16, 1990; 57 FR 11412 and 11413, Apr. 2, 1992; 
64 FR 68841, Dec. 8, 1999; 65 FR 30908, May 15, 2000; 68 FR 7268, Feb. 
12, 2003; 73 FR 70483, Nov. 20, 2008]



Sec. 122.29  New sources and new dischargers.

    (a) Definitions. (1) New source and new discharger are defined in 
Sec. 122.2. [See Note 2.]
    (2) Source means any building, structure, facility, or installation 
from which there is or may be a discharge of pollutants.
    (3) Existing source means any source which is not a new source or a 
new discharger.
    (4) Site is defined in Sec. 122.2;
    (5) Facilities or equipment means buildings, structures, process or 
production equipment or machinery which form a permanent part of the new 
source and which will be used in its operation, if these facilities or 
equipment are of such value as to represent a substantial commitment to 
construct. It excludes facilities or equipment used in connection with 
feasibility, engineering, and design studies regarding the source or 
water pollution treatment for the source.

[[Page 228]]

    (b) Criteria for new source determination. (1) Except as otherwise 
provided in an applicable new source performance standard, a source is a 
``new source'' if it meets the definition of ``new source'' in Sec. 
122.2, and
    (i) It is constructed at a site at which no other source is located; 
or
    (ii) It totally replaces the process or production equipment that 
causes the discharge of pollutants at an existing source; or
    (iii) Its processes are substantially independent of an existing 
source at the same site. In determining whether these processes are 
substantially independent, the Director shall consider such factors as 
the extent to which the new facility is integrated with the existing 
plant; and the extent to which the new facility is engaged in the same 
general type of activity as the existing source.
    (2) A source meeting the requirements of paragraphs (b)(1) (i), 
(ii), or (iii) of this section is a new source only if a new source 
performance standard is independently applicable to it. If there is no 
such independently applicable standard, the source is a new discharger. 
See Sec. 122.2.
    (3) Construction on a site at which an existing source is located 
results in a modification subject to Sec. 122.62 rather than a new 
source (or a new discharger) if the construction does not create a new 
building, structure, facility, or installation meeting the criteria of 
paragraph (b)(1) (ii) or (iii) of this section but otherwise alters, 
replaces, or adds to existing process or production equipment.
    (4) Construction of a new source as defined under Sec. 122.2 has 
commenced if the owner or operator has:
    (i) Begun, or caused to begin as part of a continuous on-site 
construction program:
    (A) Any placement, assembly, or installation of facilities or 
equipment; or
    (B) Significant site preparation work including clearing, excavation 
or removal of existing buildings, structures, or facilities which is 
necessary for the placement, assembly, or installation of new source 
facilities or equipment; or
    (ii) Entered into a binding contractual obligation for the purchase 
of facilities or equipment which are intended to be used in its 
operation with a reasonable time. Options to purchase or contracts which 
can be terminated or modified without substantial loss, and contracts 
for feasibility engineering, and design studies do not constitute a 
contractual obligation under the paragraph.
    (c) Requirement for an environmental impact statement. (1) The 
issuance of an NPDES permit to new source:
    (i) By EPA may be a major Federal action significantly affecting the 
quality of the human environment within the meaning of the National 
Environmental Policy Act of 1969 (NEPA), 33 U.S.C. 4321 et seq. and is 
subject to the environmental review provisions of NEPA as set out in 40 
CFR part 6, subpart F. EPA will determine whether an Environmental 
Impact Statement (EIS) is required under Sec. 122.21(l) (special 
provisions for applications from new sources) and 40 CFR part 6, subpart 
F;
    (ii) By an NPDES approved State is not a Federal action and 
therefore does not require EPA to conduct an environmental review.
    (2) An EIS prepared under this paragraph shall include a 
recommendation either to issue or deny the permit.
    (i) If the recommendation is to deny the permit, the final EIS shall 
contain the reasons for the recommendation and list those measures, if 
any, which the applicant could take to cause the recommendation to be 
changed;
    (ii) If the recommendation is to issue the permit, the final EIS 
shall recommend the actions, if any, which the permittee should take to 
prevent or minimize any adverse environmental impacts;
    (3) The Regional Administrator, to the extent allowed by law, shall 
issue, condition (other than imposing effluent limitations), or deny the 
new source NPDES permit following a complete evaluation of any 
significant beneficial and adverse impacts of the proposed action and a 
review of the recommendations contained in the EIS or finding of no 
significant impact.
    (d) Effect of compliance with new source performance standards. (The 
provisions of this paragraph do not apply to existing sources which 
modify their pollution control facilities or construct

[[Page 229]]

new pollution control facilities and achieve performance standards, but 
which are neither new sources or new dischargers or otherwise do not 
meet the requirements of this paragraph.)
    (1) Except as provided in paragraph (d)(2) of this section, any new 
discharger, the construction of which commenced after October 18, 1972, 
or new source which meets the applicable promulgated new source 
performance standards before the commencement of discharge, may not be 
subject to any more stringent new source performance standards or to any 
more stringent technology-based standards under section 301(b)(2) of CWA 
for the soonest ending of the following periods:
    (i) Ten years from the date that construction is completed;
    (ii) Ten years from the date the source begins to discharge process 
or other nonconstruction related wastewater; or
    (iii) The period of depreciation or amortization of the facility for 
the purposes of section 167 or 169 (or both) of the Internal Revenue 
Code of 1954.
    (2) The protection from more stringent standards of performance 
afforded by paragraph (d)(1) of this section does not apply to:
    (i) Additional or more stringent permit conditions which are not 
technology based; for example, conditions based on water quality 
standards, or toxic effluent standards or prohibitions under section 
307(a) of CWA; or
    (ii) Additional permit conditions in accordance with Sec. 125.3 
controlling toxic pollutants or hazardous substances which are not 
controlled by new source performance standards. This includes permit 
conditions controlling pollutants other than those identified as toxic 
pollutants or hazardous substances when control of these pollutants has 
been specifically identified as the method to control the toxic 
pollutants or hazardous substances.
    (3) When an NPDES permit issued to a source with a ``protection 
period'' under paragraph (d)(1) of this section will expire on or after 
the expiration of the protection period, that permit shall require the 
owner or operator of the source to comply with the requirements of 
section 301 and any other then applicable requirements of CWA 
immediately upon the expiration of the protection period. No additional 
period for achieving compliance with these requirements may be allowed 
except when necessary to achieve compliance with requirements 
promulgated less than 3 years before the expiration of the protection 
period.
    (4) The owner or operator of a new source, a new discharger which 
commenced discharge after August 13, 1979, or a recommencing discharger 
shall install and have in operating condition, and shall ``start-up'' 
all pollution control equipment required to meet the conditions of its 
permits before beginning to discharge. Within the shortest feasible time 
(not to exceed 90 days), the owner or operator must meet all permit 
conditions. The requirements of this paragraph do not apply if the owner 
or operator is issued a permit containing a compliance schedule under 
Sec. 122.47(a)(2).
    (5) After the effective date of new source performance standards, it 
shall be unlawful for any owner or operator of any new source to operate 
the source in violation of those standards applicable to the source.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38048, Sept. 26, 1984; 
50 FR 4514, Jan. 31, 1985; 50 FR 6941, Feb. 19, 1985; 65 FR 30908, May 
15, 2000]



Sec. 122.30  What are the objectives of the storm water regulations for small 

MS4s?

    (a) Sections 122.30 through 122.37 are written in a ``readable 
regulation'' format that includes both rule requirements and EPA 
guidance that is not legally binding. EPA has clearly distinguished its 
recommended guidance from the rule requirements by putting the guidance 
in a separate paragraph headed by the word ``guidance''.
    (b) Under the statutory mandate in section 402(p)(6) of the Clean 
Water Act, the purpose of this portion of the storm water program is to 
designate additional sources that need to be regulated to protect water 
quality and to establish a comprehensive storm water program to regulate 
these sources. (Because the storm water program is part of the National 
Pollutant Discharge

[[Page 230]]

Elimination System (NPDES) Program, you should also refer to Sec. 122.1 
which addresses the broader purpose of the NPDES program.)
    (c) Storm water runoff continues to harm the nation's waters. Runoff 
from lands modified by human activities can harm surface water resources 
in several ways including by changing natural hydrologic patterns and by 
elevating pollutant concentrations and loadings. Storm water runoff may 
contain or mobilize high levels of contaminants, such as sediment, 
suspended solids, nutrients, heavy metals, pathogens, toxins, oxygen-
demanding substances, and floatables.
    (d) EPA strongly encourages partnerships and the watershed approach 
as the management framework for efficiently, effectively, and 
consistently protecting and restoring aquatic ecosystems and protecting 
public health.

[64 FR 68842, Dec. 8, 1999]



Sec. 122.31  As a Tribe, what is my role under the NPDES storm water program?

    As a Tribe you may:
    (a) Be authorized to operate the NPDES program including the storm 
water program, after EPA determines that you are eligible for treatment 
in the same manner as a State under Sec. Sec. 123.31 through 123.34 of 
this chapter. (If you do not have an authorized NPDES program, EPA 
implements the program for discharges on your reservation as well as 
other Indian country, generally.);
    (b) Be classified as an owner of a regulated small MS4, as defined 
in Sec. 122.32. (Designation of your Tribe as an owner of a small MS4 
for purposes of this part is an approach that is consistent with EPA's 
1984 Indian Policy of operating on a government-to-government basis with 
EPA looking to Tribes as the lead governmental authorities to address 
environmental issues on their reservations as appropriate. If you 
operate a separate storm sewer system that meets the definition of a 
regulated small MS4, you are subject to the requirements under 
Sec. Sec. 122.33 through 122.35. If you are not designated as a 
regulated small MS4, you may ask EPA to designate you as such for the 
purposes of this part.); or
    (c) Be a discharger of storm water associated with industrial 
activity or small construction activity under Sec. Sec. 122.26(b)(14) 
or (b)(15), in which case you must meet the applicable requirements. 
Within Indian country, the NPDES permitting authority is generally EPA, 
unless you are authorized to administer the NPDES program.

[64 FR 68842, Dec. 8, 1999]



Sec. 122.32  As an operator of a small MS4, am I regulated under the NPDES 

storm water program?

    (a) Unless you qualify for a waiver under paragraph (c) of this 
section, you are regulated if you operate a small MS4, including but not 
limited to systems operated by federal, State, Tribal, and local 
governments, including State departments of transportation; and:
    (1) Your small MS4 is located in an urbanized area as determined by 
the latest Decennial Census by the Bureau of the Census. (If your small 
MS4 is not located entirely within an urbanized area, only the portion 
that is within the urbanized area is regulated); or
    (2) You are designated by the NPDES permitting authority, including 
where the designation is pursuant to Sec. Sec. 123.35(b)(3) and (b)(4) 
of this chapter, or is based upon a petition under Sec. 122.26(f).
    (b) You may be the subject of a petition to the NPDES permitting 
authority to require an NPDES permit for your discharge of storm water. 
If the NPDES permitting authority determines that you need a permit, you 
are required to comply with Sec. Sec. 122.33 through 122.35.
    (c) The NPDES permitting authority may waive the requirements 
otherwise applicable to you if you meet the criteria of paragraph (d) or 
(e) of this section. If you receive a waiver under this section, you may 
subsequently be required to seek coverage under an NPDES permit in 
accordance with Sec. 122.33(a) if circumstances change. (See also Sec. 
123.35(b) of this chapter.)
    (d) The NPDES permitting authority may waive permit coverage if your 
MS4 serves a population of less than 1,000 within the urbanized area and 
you meet the following criteria:
    (1) Your system is not contributing substantially to the pollutant 
loadings

[[Page 231]]

of a physically interconnected MS4 that is regulated by the NPDES storm 
water program (see Sec. 123.35(b)(4) of this chapter); and
    (2) If you discharge any pollutant(s) that have been identified as a 
cause of impairment of any water body to which you discharge, storm 
water controls are not needed based on wasteload allocations that are 
part of an EPA approved or established ``total maximum daily load'' 
(TMDL) that addresses the pollutant(s) of concern.
    (e) The NPDES permitting authority may waive permit coverage if your 
MS4 serves a population under 10,000 and you meet the following 
criteria:
    (1) The permitting authority has evaluated all waters of the U.S., 
including small streams, tributaries, lakes, and ponds, that receive a 
discharge from your MS4;
    (2) For all such waters, the permitting authority has determined 
that storm water controls are not needed based on wasteload allocations 
that are part of an EPA approved or established TMDL that addresses the 
pollutant(s) of concern or, if a TMDL has not been developed or 
approved, an equivalent analysis that determines sources and allocations 
for the pollutant(s) of concern;
    (3) For the purpose of this paragraph (e), the pollutant(s) of 
concern include biochemical oxygen demand (BOD), sediment or a parameter 
that addresses sediment (such as total suspended solids, turbidity or 
siltation), pathogens, oil and grease, and any pollutant that has been 
identified as a cause of impairment of any water body that will receive 
a discharge from your MS4; and
    (4) The permitting authority has determined that future discharges 
from your MS4 do not have the potential to result in exceedances of 
water quality standards, including impairment of designated uses, or 
other significant water quality impacts, including habitat and 
biological impacts.

[64 FR 68842, Dec. 8, 1999]



Sec. 122.33  If I am an operator of a regulated small MS4, how do I apply for 

an NPDES permit and when do I have to apply?

    (a) If you operate a regulated small MS4 under Sec. 122.32, you 
must seek coverage under a NPDES permit issued by your NPDES permitting 
authority. If you are located in an NPDES authorized State, Tribe, or 
Territory, then that State, Tribe, or Territory is your NPDES permitting 
authority. Otherwise, your NPDES permitting authority is the EPA 
Regional Office.
    (b) You must seek authorization to discharge under a general or 
individual NPDES permit, as follows:
    (1) If your NPDES permitting authority has issued a general permit 
applicable to your discharge and you are seeking coverage under the 
general permit, you must submit a Notice of Intent (NOI) that includes 
the information on your best management practices and measurable goals 
required by Sec. 122.34(d). You may file your own NOI, or you and other 
municipalities or governmental entities may jointly submit an NOI. If 
you want to share responsibilities for meeting the minimum measures with 
other municipalities or governmental entities, you must submit an NOI 
that describes which minimum measures you will implement and identify 
the entities that will implement the other minimum measures within the 
area served by your MS4. The general permit will explain any other steps 
necessary to obtain permit authorization.
    (2)(i) If you are seeking authorization to discharge under an 
individual permit and wish to implement a program under Sec. 122.34, 
you must submit an application to your NPDES permitting authority that 
includes the information required under Sec. Sec. 122.21(f) and 
122.34(d), an estimate of square mileage served by your small MS4, and 
any additional information that your NPDES permitting authority 
requests. A storm sewer map that satisfies the requirement of Sec. 
122.34(b)(3)(i) will satisfy the map requirement in Sec. 122.21(f)(7).
    (ii) If you are seeking authorization to discharge under an 
individual permit and wish to implement a program that is different from 
the program under Sec. 122.34, you will need to comply with the permit 
application requirements of Sec. 122.26(d). You must submit both Parts 
of the application requirements in Sec. Sec. 122.26(d)(1) and (2) by 
March 10, 2003. You do not need to submit the information required by 
Sec. Sec. 122.26(d)(1)(ii) and (d)(2) regarding

[[Page 232]]

your legal authority, unless you intend for the permit writer to take 
such information into account when developing your other permit 
conditions.
    (iii) If allowed by your NPDES permitting authority, you and another 
regulated entity may jointly apply under either paragraph (b)(2)(i) or 
(b)(2)(ii) of this section to be co-permittees under an individual 
permit.
    (3) If your small MS4 is in the same urbanized area as a medium or 
large MS4 with an NPDES storm water permit and that other MS4 is willing 
to have you participate in its storm water program, you and the other 
MS4 may jointly seek a modification of the other MS4 permit to include 
you as a limited co-permittee. As a limited co-permittee, you will be 
responsible for compliance with the permit's conditions applicable to 
your jurisdiction. If you choose this option you will need to comply 
with the permit application requirements of Sec. 122.26, rather than 
the requirements of Sec. 122.34. You do not need to comply with the 
specific application requirements of Sec. 122.26(d)(1)(iii) and (iv) 
and (d)(2)(iii) (discharge characterization). You may satisfy the 
requirements in Sec. 122.26 (d)(1)(v) and (d)(2)(iv) (identification of 
a management program) by referring to the other MS4's storm water 
management program.
    (4) Guidance: In referencing an MS4's storm water management 
program, you should briefly describe how the existing plan will address 
discharges from your small MS4 or would need to be supplemented in order 
to adequately address your discharges. You should also explain your role 
in coordinating storm water pollutant control activities in your MS4, 
and detail the resources available to you to accomplish the plan.
    (c) If you operate a regulated small MS4:
    (1) Designated under Sec. 122.32(a)(1), you must apply for coverage 
under an NPDES permit, or apply for a modification of an existing NPDES 
permit under paragraph (b)(3) of this section by March 10, 2003, unless 
your MS4 serves a jurisdiction with a population under 10,000 and the 
NPDES permitting authority has established a phasing schedule under 
Sec. 123.35(d)(3) of this chapter.
    (2) Designated under Sec. 122.32(a)(2), you must apply for coverage 
under an NPDES permit, or apply for a modification of an existing NPDES 
permit under paragraph (b)(3) of this section, within 180 days of 
notice, unless the NPDES permitting authority grants a later date.

[64 FR 68843, Dec. 8, 1999]



Sec. 122.34  As an operator of a regulated small MS4, what will my NPDES MS4 

storm water permit require?

    (a) Your NPDES MS4 permit will require at a minimum that you 
develop, implement, and enforce a storm water management program 
designed to reduce the discharge of pollutants from your MS4 to the 
maximum extent practicable (MEP), to protect water quality, and to 
satisfy the appropriate water quality requirements of the Clean Water 
Act. Your storm water management program must include the minimum 
control measures described in paragraph (b) of this section unless you 
apply for a permit under Sec. 122.26(d). For purposes of this section, 
narrative effluent limitations requiring implementation of best 
management practices (BMPs) are generally the most appropriate form of 
effluent limitations when designed to satisfy technology requirements 
(including reductions of pollutants to the maximum extent practicable) 
and to protect water quality. Implementation of best management 
practices consistent with the provisions of the storm water management 
program required pursuant to this section and the provisions of the 
permit required pursuant to Sec. 122.33 constitutes compliance with the 
standard of reducing pollutants to the ``maximum extent practicable.'' 
Your NPDES permitting authority will specify a time period of up to 5 
years from the date of permit issuance for you to develop and implement 
your program.
    (b) Minimum control measures--(1) Public education and outreach on 
storm water impacts. (i) You must implement a public education program 
to distribute educational materials to the community or conduct 
equivalent outreach activities about the impacts of storm

[[Page 233]]

water discharges on water bodies and the steps that the public can take 
to reduce pollutants in storm water runoff.
    (ii) Guidance: You may use storm water educational materials 
provided by your State, Tribe, EPA, environmental, public interest or 
trade organizations, or other MS4s. The public education program should 
inform individuals and households about the steps they can take to 
reduce storm water pollution, such as ensuring proper septic system 
maintenance, ensuring the proper use and disposal of landscape and 
garden chemicals including fertilizers and pesticides, protecting and 
restoring riparian vegetation, and properly disposing of used motor oil 
or household hazardous wastes. EPA recommends that the program inform 
individuals and groups how to become involved in local stream and beach 
restoration activities as well as activities that are coordinated by 
youth service and conservation corps or other citizen groups. EPA 
recommends that the public education program be tailored, using a mix of 
locally appropriate strategies, to target specific audiences and 
communities. Examples of strategies include distributing brochures or 
fact sheets, sponsoring speaking engagements before community groups, 
providing public service announcements, implementing educational 
programs targeted at school age children, and conducting community-based 
projects such as storm drain stenciling, and watershed and beach 
cleanups. In addition, EPA recommends that some of the materials or 
outreach programs be directed toward targeted groups of commercial, 
industrial, and institutional entities likely to have significant storm 
water impacts. For example, providing information to restaurants on the 
impact of grease clogging storm drains and to garages on the impact of 
oil discharges. You are encouraged to tailor your outreach program to 
address the viewpoints and concerns of all communities, particularly 
minority and disadvantaged communities, as well as any special concerns 
relating to children.
    (2) Public involvement/participation. (i) You must, at a minimum, 
comply with State, Tribal and local public notice requirements when 
implementing a public involvement/ participation program.
    (ii) Guidance: EPA recommends that the public be included in 
developing, implementing, and reviewing your storm water management 
program and that the public participation process should make efforts to 
reach out and engage all economic and ethnic groups. Opportunities for 
members of the public to participate in program development and 
implementation include serving as citizen representatives on a local 
storm water management panel, attending public hearings, working as 
citizen volunteers to educate other individuals about the program, 
assisting in program coordination with other pre-existing programs, or 
participating in volunteer monitoring efforts. (Citizens should obtain 
approval where necessary for lawful access to monitoring sites.)
    (3) Illicit discharge detection and elimination. (i) You must 
develop, implement and enforce a program to detect and eliminate illicit 
discharges (as defined at Sec. 122.26(b)(2)) into your small MS4.
    (ii) You must:
    (A) Develop, if not already completed, a storm sewer system map, 
showing the location of all outfalls and the names and location of all 
waters of the United States that receive discharges from those outfalls;
    (B) To the extent allowable under State, Tribal or local law, 
effectively prohibit, through ordinance, or other regulatory mechanism, 
non-storm water discharges into your storm sewer system and implement 
appropriate enforcement procedures and actions;
    (C) Develop and implement a plan to detect and address non-storm 
water discharges, including illegal dumping, to your system; and
    (D) Inform public employees, businesses, and the general public of 
hazards associated with illegal discharges and improper disposal of 
waste.
    (iii) You need address the following categories of non-storm water 
discharges or flows (i.e., illicit discharges) only if you identify them 
as significant contributors of pollutants to your small MS4: water line 
flushing, landscape irrigation, diverted stream flows,

[[Page 234]]

rising ground waters, uncontaminated ground water infiltration (as 
defined at 40 CFR 35.2005(20)), uncontaminated pumped ground water, 
discharges from potable water sources, foundation drains, air 
conditioning condensation, irrigation water, springs, water from crawl 
space pumps, footing drains, lawn watering, individual residential car 
washing, flows from riparian habitats and wetlands, dechlorinated 
swimming pool discharges, and street wash water (discharges or flows 
from fire fighting activities are excluded from the effective 
prohibition against non-storm water and need only be addressed where 
they are identified as significant sources of pollutants to waters of 
the United States).
    (iv) Guidance: EPA recommends that the plan to detect and address 
illicit discharges include the following four components: procedures for 
locating priority areas likely to have illicit discharges; procedures 
for tracing the source of an illicit discharge; procedures for removing 
the source of the discharge; and procedures for program evaluation and 
assessment. EPA recommends visually screening outfalls during dry 
weather and conducting field tests of selected pollutants as part of the 
procedures for locating priority areas. Illicit discharge education 
actions may include storm drain stenciling, a program to promote, 
publicize, and facilitate public reporting of illicit connections or 
discharges, and distribution of outreach materials.
    (4) Construction site storm water runoff control. (i) You must 
develop, implement, and enforce a program to reduce pollutants in any 
storm water runoff to your small MS4 from construction activities that 
result in a land disturbance of greater than or equal to one acre. 
Reduction of storm water discharges from construction activity 
disturbing less than one acre must be included in your program if that 
construction activity is part of a larger common plan of development or 
sale that would disturb one acre or more. If the NPDES permitting 
authority waives requirements for storm water discharges associated with 
small construction activity in accordance with Sec. 122.26(b)(15)(i), 
you are not required to develop, implement, and/or enforce a program to 
reduce pollutant discharges from such sites.
    (ii) Your program must include the development and implementation 
of, at a minimum:
    (A) An ordinance or other regulatory mechanism to require erosion 
and sediment controls, as well as sanctions to ensure compliance, to the 
extent allowable under State, Tribal, or local law;
    (B) Requirements for construction site operators to implement 
appropriate erosion and sediment control best management practices;
    (C) Requirements for construction site operators to control waste 
such as discarded building materials, concrete truck washout, chemicals, 
litter, and sanitary waste at the construction site that may cause 
adverse impacts to water quality;
    (D) Procedures for site plan review which incorporate consideration 
of potential water quality impacts;
    (E) Procedures for receipt and consideration of information 
submitted by the public, and
    (F) Procedures for site inspection and enforcement of control 
measures.
    (iii) Guidance: Examples of sanctions to ensure compliance include 
non-monetary penalties, fines, bonding requirements and/or permit 
denials for non-compliance. EPA recommends that procedures for site plan 
review include the review of individual pre-construction site plans to 
ensure consistency with local sediment and erosion control requirements. 
Procedures for site inspections and enforcement of control measures 
could include steps to identify priority sites for inspection and 
enforcement based on the nature of the construction activity, 
topography, and the characteristics of soils and receiving water 
quality. You are encouraged to provide appropriate educational and 
training measures for construction site operators. You may wish to 
require a storm water pollution prevention plan for construction sites 
within your jurisdiction that discharge into your system. See Sec. 
122.44(s) (NPDES permitting authorities' option to incorporate 
qualifying State, Tribal and local erosion and sediment control programs 
into NPDES permits for storm water discharges from construction sites).

[[Page 235]]

Also see Sec. 122.35(b) (The NPDES permitting authority may recognize 
that another government entity, including the permitting authority, may 
be responsible for implementing one or more of the minimum measures on 
your behalf.)
    (5) Post-construction storm water management in new development and 
redevelopment. (i) You must develop, implement, and enforce a program to 
address storm water runoff from new development and redevelopment 
projects that disturb greater than or equal to one acre, including 
projects less than one acre that are part of a larger common plan of 
development or sale, that discharge into your small MS4. Your program 
must ensure that controls are in place that would prevent or minimize 
water quality impacts.
    (ii) You must:
    (A) Develop and implement strategies which include a combination of 
structural and/or non-structural best management practices (BMPs) 
appropriate for your community;
    (B) Use an ordinance or other regulatory mechanism to address post-
construction runoff from new development and redevelopment projects to 
the extent allowable under State, Tribal or local law; and
    (C) Ensure adequate long-term operation and maintenance of BMPs.
    (iii) Guidance: If water quality impacts are considered from the 
beginning stages of a project, new development and potentially 
redevelopment provide more opportunities for water quality protection. 
EPA recommends that the BMPs chosen: be appropriate for the local 
community; minimize water quality impacts; and attempt to maintain pre-
development runoff conditions. In choosing appropriate BMPs, EPA 
encourages you to participate in locally-based watershed planning 
efforts which attempt to involve a diverse group of stakeholders 
including interested citizens. When developing a program that is 
consistent with this measure's intent, EPA recommends that you adopt a 
planning process that identifies the municipality's program goals (e.g., 
minimize water quality impacts resulting from post-construction runoff 
from new development and redevelopment), implementation strategies 
(e.g., adopt a combination of structural and/or non-structural BMPs), 
operation and maintenance policies and procedures, and enforcement 
procedures. In developing your program, you should consider assessing 
existing ordinances, policies, programs and studies that address storm 
water runoff quality. In addition to assessing these existing documents 
and programs, you should provide opportunities to the public to 
participate in the development of the program. Non-structural BMPs are 
preventative actions that involve management and source controls such 
as: policies and ordinances that provide requirements and standards to 
direct growth to identified areas, protect sensitive areas such as 
wetlands and riparian areas, maintain and/or increase open space 
(including a dedicated funding source for open space acquisition), 
provide buffers along sensitive water bodies, minimize impervious 
surfaces, and minimize disturbance of soils and vegetation; policies or 
ordinances that encourage infill development in higher density urban 
areas, and areas with existing infrastructure; education programs for 
developers and the public about project designs that minimize water 
quality impacts; and measures such as minimization of percent impervious 
area after development and minimization of directly connected impervious 
areas. Structural BMPs include: storage practices such as wet ponds and 
extended-detention outlet structures; filtration practices such as 
grassed swales, sand filters and filter strips; and infiltration 
practices such as infiltration basins and infiltration trenches. EPA 
recommends that you ensure the appropriate implementation of the 
structural BMPs by considering some or all of the following: pre-
construction review of BMP designs; inspections during construction to 
verify BMPs are built as designed; post-construction inspection and 
maintenance of BMPs; and penalty provisions for the noncompliance with 
design, construction or operation and maintenance. Storm water 
technologies are constantly being improved, and EPA recommends that your 
requirements be responsive to these changes, developments or 
improvements in control technologies.

[[Page 236]]

    (6) Pollution prevention/good housekeeping for municipal operations. 
(i) You must develop and implement an operation and maintenance program 
that includes a training component and has the ultimate goal of 
preventing or reducing pollutant runoff from municipal operations. Using 
training materials that are available from EPA, your State, Tribe, or 
other organizations, your program must include employee training to 
prevent and reduce storm water pollution from activities such as park 
and open space maintenance, fleet and building maintenance, new 
construction and land disturbances, and storm water system maintenance.
    (ii) Guidance: EPA recommends that, at a minimum, you consider the 
following in developing your program: maintenance activities, 
maintenance schedules, and long-term inspection procedures for 
structural and non-structural storm water controls to reduce floatables 
and other pollutants discharged from your separate storm sewers; 
controls for reducing or eliminating the discharge of pollutants from 
streets, roads, highways, municipal parking lots, maintenance and 
storage yards, fleet or maintenance shops with outdoor storage areas, 
salt/sand storage locations and snow disposal areas operated by you, and 
waste transfer stations; procedures for properly disposing of waste 
removed from the separate storm sewers and areas listed above (such as 
dredge spoil, accumulated sediments, floatables, and other debris); and 
ways to ensure that new flood management projects assess the impacts on 
water quality and examine existing projects for incorporating additional 
water quality protection devices or practices. Operation and maintenance 
should be an integral component of all storm water management programs. 
This measure is intended to improve the efficiency of these programs and 
require new programs where necessary. Properly developed and implemented 
operation and maintenance programs reduce the risk of water quality 
problems.
    (c) If an existing qualifying local program requires you to 
implement one or more of the minimum control measures of paragraph (b) 
of this section, the NPDES permitting authority may include conditions 
in your NPDES permit that direct you to follow that qualifying program's 
requirements rather than the requirements of paragraph (b) of this 
section. A qualifying local program is a local, State or Tribal 
municipal storm water management program that imposes, at a minimum, the 
relevant requirements of paragraph (b) of this section.
    (d)(1) In your permit application (either a notice of intent for 
coverage under a general permit or an individual permit application), 
you must identify and submit to your NPDES permitting authority the 
following information:
    (i) The best management practices (BMPs) that you or another entity 
will implement for each of the storm water minimum control measures at 
paragraphs (b)(1) through (b)(6) of this section;
    (ii) The measurable goals for each of the BMPs including, as 
appropriate, the months and years in which you will undertake required 
actions, including interim milestones and the frequency of the action; 
and
    (iii) The person or persons responsible for implementing or 
coordinating your storm water management program.
    (2) If you obtain coverage under a general permit, you are not 
required to meet any measurable goal(s) identified in your notice of 
intent in order to demonstrate compliance with the minimum control 
measures in paragraphs (b)(3) through (b)(6) of this section unless, 
prior to submitting your NOI, EPA or your State or Tribe has provided or 
issued a menu of BMPs that addresses each such minimum measure. Even if 
no regulatory authority issues the menu of BMPs, however, you still must 
comply with other requirements of the general permit, including good 
faith implementation of BMPs designed to comply with the minimum 
measures.
    (3) Guidance: Either EPA or your State or Tribal permitting 
authority will provide a menu of BMPs. You may choose BMPs from the menu 
or select others that satisfy the minimum control measures.
    (e)(1) You must comply with any more stringent effluent limitations 
in

[[Page 237]]

your permit, including permit requirements that modify, or are in 
addition to, the minimum control measures based on an approved total 
maximum daily load (TMDL) or equivalent analysis. The permitting 
authority may include such more stringent limitations based on a TMDL or 
equivalent analysis that determines such limitations are needed to 
protect water quality.
    (2) Guidance: EPA strongly recommends that until the evaluation of 
the storm water program in Sec. 122.37, no additional requirements 
beyond the minimum control measures be imposed on regulated small MS4s 
without the agreement of the operator of the affected small MS4, except 
where an approved TMDL or equivalent analysis provides adequate 
information to develop more specific measures to protect water quality.
    (f) You must comply with other applicable NPDES permit requirements, 
standards and conditions established in the individual or general 
permit, developed consistent with the provisions of Sec. Sec. 122.41 
through 122.49, as appropriate.
    (g) Evaluation and assessment--(1) Evaluation. You must evaluate 
program compliance, the appropriateness of your identified best 
management practices, and progress towards achieving your identified 
measurable goals.

    Note to paragraph (g)(1): The NPDES permitting authority may 
determine monitoring requirements for you in accordance with State/
Tribal monitoring plans appropriate to your watershed. Participation in 
a group monitoring program is encouraged.

    (2) Recordkeeping. You must keep records required by the NPDES 
permit for at least 3 years. You must submit your records to the NPDES 
permitting authority only when specifically asked to do so. You must 
make your records, including a description of your storm water 
management program, available to the public at reasonable times during 
regular business hours (see Sec. 122.7 for confidentiality provision). 
(You may assess a reasonable charge for copying. You may require a 
member of the public to provide advance notice.)
    (3) Reporting. Unless you are relying on another entity to satisfy 
your NPDES permit obligations under Sec. 122.35(a), you must submit 
annual reports to the NPDES permitting authority for your first permit 
term. For subsequent permit terms, you must submit reports in year two 
and four unless the NPDES permitting authority requires more frequent 
reports. Your report must include:
    (i) The status of compliance with permit conditions, an assessment 
of the appropriateness of your identified best management practices and 
progress towards achieving your identified measurable goals for each of 
the minimum control measures;
    (ii) Results of information collected and analyzed, including 
monitoring data, if any, during the reporting period;
    (iii) A summary of the storm water activities you plan to undertake 
during the next reporting cycle;
    (iv) A change in any identified best management practices or 
measurable goals for any of the minimum control measures; and
    (v) Notice that you are relying on another governmental entity to 
satisfy some of your permit obligations (if applicable).

[64 FR 68843, Dec. 8, 1999]



Sec. 122.35  As an operator of a regulated small MS4, may I share the 

responsibility to implement the minimum control measures with other entities?

    (a) You may rely on another entity to satisfy your NPDES permit 
obligations to implement a minimum control measure if:
    (1) The other entity, in fact, implements the control measure;
    (2) The particular control measure, or component thereof, is at 
least as stringent as the corresponding NPDES permit requirement; and
    (3) The other entity agrees to implement the control measure on your 
behalf. In the reports you must submit under Sec. 122.34(g)(3), you 
must also specify that you rely on another entity to satisfy some of 
your permit obligations. If you are relying on another governmental 
entity regulated under section 122 to satisfy all of your permit 
obligations, including your obligation to file periodic reports required 
by Sec. 122.34(g)(3), you must note that fact in your NOI, but you are 
not required to file the periodic reports. You remain

[[Page 238]]

responsible for compliance with your permit obligations if the other 
entity fails to implement the control measure (or component thereof). 
Therefore, EPA encourages you to enter into a legally binding agreement 
with that entity if you want to minimize any uncertainty about 
compliance with your permit.
    (b) In some cases, the NPDES permitting authority may recognize, 
either in your individual NPDES permit or in an NPDES general permit, 
that another governmental entity is responsible under an NPDES permit 
for implementing one or more of the minimum control measures for your 
small MS4 or that the permitting authority itself is responsible. Where 
the permitting authority does so, you are not required to include such 
minimum control measure(s) in your storm water management program. (For 
example, if a State or Tribe is subject to an NPDES permit that requires 
it to administer a program to control construction site runoff at the 
State or Tribal level and that program satisfies all of the requirements 
of Sec. 122.34(b)(4), you could avoid responsibility for the 
construction measure, but would be responsible for the remaining minimum 
control measures.) Your permit may be reopened and modified to include 
the requirement to implement a minimum control measure if the entity 
fails to implement it.

[64 FR 68846, Dec. 8, 1999]



Sec. 122.36  As an operator of a regulated small MS4, what happens if I don't 

comply with the application or permit requirements in Sec. Sec. 122.33 through 

122.35?

    NPDES permits are federally enforceable. Violators may be subject to 
the enforcement actions and penalties described in Clean Water Act 
sections 309 (b), (c), and (g) and 505, or under applicable State, 
Tribal, or local law. Compliance with a permit issued pursuant to 
section 402 of the Clean Water Act is deemed compliance, for purposes of 
sections 309 and 505, with sections 301, 302, 306, 307, and 403, except 
any standard imposed under section 307 for toxic pollutants injurious to 
human health. If you are covered as a co-permittee under an individual 
permit or under a general permit by means of a joint Notice of Intent 
you remain subject to the enforcement actions and penalties for the 
failure to comply with the terms of the permit in your jurisdiction 
except as set forth in Sec. 122.35(b).

[64 FR 68847, Dec. 8, 1999]



Sec. 122.37  Will the small MS4 storm water program regulations at Sec. Sec. 

122.32 through 122.36 and Sec. 123.35 of this chapter change in the future?

    EPA will evaluate the small MS4 regulations at Sec. Sec. 122.32 
through 122.36 and Sec. 123.35 of this chapter after December 10, 2012 
and make any necessary revisions. (EPA intends to conduct an enhanced 
research effort and compile a comprehensive evaluation of the NPDES MS4 
storm water program. EPA will re-evaluate the regulations based on data 
from the NPDES MS4 storm water program, from research on receiving water 
impacts from storm water, and the effectiveness of best management 
practices (BMPs), as well as other relevant information sources.)

[64 FR 68847, Dec. 8, 1999]



                       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

[[Page 239]]

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 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

[[Page 240]]

of this permit. Proper operation and maintenance also includes adequate 
laboratory controls and appropriate quality assurance procedures. This 
provision requires the operation of back-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 must be conducted according to test procedures 
approved under 40 CFR Part 136 unless another method is required under 
40 CFR subchapters N or O.
    (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.

[[Page 241]]

    (k) Signatory requirement. (1) All applications, reports, or 
information submitted to the Director shall be signed and certified. 
(See Sec. 122.22)
    (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 another method required for an industry-specific waste stream 
under 40 CFR subchapters N or O, the results of such 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.

[[Page 242]]

    (ii) The following shall be included as information which must be 
reported within 24 hours under this paragraph.
    (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

[[Page 243]]

before an action for noncompliance, is final administrative action 
subject to judicial review.
    (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; 72 FR 11211, Mar. 12, 2007]



Sec. 122.42  Additional conditions applicable to specified categories of NPDES 

permits (applicable to State NPDES programs, see Sec. 123.25).

    The following conditions, in addition to those set forth in Sec. 
122.41, apply to all NPDES permits within the categories specified 
below:
    (a) Existing manufacturing, commercial, mining, and silvicultural 
dischargers. In addition to the reporting requirements under Sec. 
122.41(1), all existing manufacturing, commercial, mining, and 
silvicultural dischargers must notify the Director as soon as they know 
or have reason to believe:
    (1) That any activity has occurred or will occur which would result 
in the discharge, on a routine or frequent basis, of any toxic pollutant 
which is not limited in the permit, if that discharge will exceed the 
highest of the following ``notification levels'':
    (i) One hundred micrograms per liter (100 [micro]g/l);
    (ii) Two hundred micrograms per liter (200 [micro]g/l) for acrolein 
and acrylonitrile; five hundred micrograms per liter (500 [micro]g/l) 
for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol; and one 
milligram per liter (1 mg/l) for antimony;
    (iii) Five (5) times the maximum concentration value reported for 
that pollutant in the permit application in accordance with Sec. 
122.21(g)(7); or
    (iv) The level established by the Director in accordance with Sec. 
122.44(f).
    (2) That any activity has occurred or will occur which would result 
in any discharge, on a non-routine or infrequent basis, of a toxic 
pollutant which is not limited in the permit, if that discharge will 
exceed the highest of the following ``notification levels'':
    (i) Five hundred micrograms per liter (500 [micro]g/l);
    (ii) One milligram per liter (1 mg/l) for antimony;
    (iii) Ten (10) times the maximum concentration value reported for 
that pollutant in the permit application in accordance with Sec. 
122.21(g)(7).
    (iv) The level established by the Director in accordance with Sec. 
122.44(f).
    (b) Publicly owned treatment works. All POTWs must provide adequate 
notice to the Director of the following:
    (1) Any new introduction of pollutants into the POTW from an 
indirect discharger which would be subject to section 301 or 306 of CWA 
if it were directly discharging those pollutants; and
    (2) Any substantial change in the volume or character of pollutants 
being introduced into that POTW by a source introducing pollutants into 
the POTW at the time of issuance of the permit.
    (3) For purposes of this paragraph, adequate notice shall include 
information on (i) the quality and quantity of effluent introduced into 
the POTW, and (ii) any anticipated impact of the change on the quantity 
or quality of effluent to be discharged from the POTW.
    (c) Municipal separate storm sewer systems. The operator of a large 
or medium municipal separate storm sewer

[[Page 244]]

system or a municipal separate storm sewer that has been designated by 
the Director under Sec. 122.26(a)(1)(v) of this part must submit an 
annual report by the anniversary of the date of the issuance of the 
permit for such system. The report shall include:
    (1) The status of implementing the components of the storm water 
management program that are established as permit conditions;
    (2) Proposed changes to the storm water management programs that are 
established as permit condition. Such proposed changes shall be 
consistent with Sec. 122.26(d)(2)(iii) of this part; and
    (3) Revisions, if necessary, to the assessment of controls and the 
fiscal analysis reported in the permit application under Sec. 
122.26(d)(2)(iv) and (d)(2)(v) of this part;
    (4) A summary of data, including monitoring data, that is 
accumulated throughout the reporting year;
    (5) Annual expenditures and budget for year following each annual 
report;
    (6) A summary describing the number and nature of enforcement 
actions, inspections, and public education programs;
    (7) Identification of water quality improvements or degradation;
    (d) Storm water discharges. The initial permits for discharges 
composed entirely of storm water issued pursuant to Sec. 122.26(e)(7) 
of this part shall require compliance with the conditions of the permit 
as expeditiously as practicable, but in no event later than three years 
after the date of issuance of the permit.
    (e) Concentrated animal feeding operations (CAFOs). Any permit 
issued to a CAFO must include the requirements in paragraphs (e)(1) 
through (e)(6) of this section.
    (1) Requirement to implement a nutrient management plan. Any permit 
issued to a CAFO must include a requirement to implement a nutrient 
management plan that, at a minimum, contains best management practices 
necessary to meet the requirements of this paragraph and applicable 
effluent limitations and standards, including those specified in 40 CFR 
part 412. The nutrient management plan must, to the extent applicable:
    (i) Ensure adequate storage of manure, litter, and process 
wastewater, including procedures to ensure proper operation and 
maintenance of the storage facilities;
    (ii) Ensure proper management of mortalities (i.e., dead animals) to 
ensure that they are not disposed of in a liquid manure, storm water, or 
process wastewater storage or treatment system that is not specifically 
designed to treat animal mortalities;
    (iii) Ensure that clean water is diverted, as appropriate, from the 
production area;
    (iv) Prevent direct contact of confined animals with waters of the 
United States;
    (v) Ensure that chemicals and other contaminants handled on-site are 
not disposed of in any manure, litter, process wastewater, or storm 
water storage or treatment system unless specifically designed to treat 
such chemicals and other contaminants;
    (vi) Identify appropriate site specific conservation practices to be 
implemented, including as appropriate buffers or equivalent practices, 
to control runoff of pollutants to waters of the United States;
    (vii) Identify protocols for appropriate testing of manure, litter, 
process wastewater, and soil;
    (viii) Establish protocols to land apply manure, litter or process 
wastewater in accordance with site specific nutrient management 
practices that ensure appropriate agricultural utilization of the 
nutrients in the manure, litter or process wastewater; and
    (ix) Identify specific records that will be maintained to document 
the implementation and management of the minimum elements described in 
paragraphs (e)(1)(i) through (e)(1)(viii) of this section.
    (2) Recordkeeping requirements. (i) The permittee must create, 
maintain for five years, and make available to the Director, upon 
request, the following records:
    (A) All applicable records identified pursuant paragraph (e)(1)(ix) 
of this section;
    (B) In addition, all CAFOs subject to 40 CFR part 412 must comply 
with

[[Page 245]]

record keeping requirements as specified in Sec. 412.37(b) and (c) and 
Sec. 412.47(b) and (c).
    (ii) A copy of the CAFO's site-specific nutrient management plan 
must be maintained on site and made available to the Director upon 
request.
    (3) Requirements relating to transfer of manure or process 
wastewater to other persons. Prior to transferring manure, litter or 
process wastewater to other persons, Large CAFOs must provide the 
recipient of the manure, litter or process wastewater with the most 
current nutrient analysis. The analysis provided must be consistent with 
the requirements of 40 CFR part 412. Large CAFOs must retain for five 
years records of the date, recipient name and address, and approximate 
amount of manure, litter or process wastewater transferred to another 
person.
    (4) Annual reporting requirements for CAFOs. The permittee must 
submit an annual report to the Director. The annual report must include:
    (i) The number and type of animals, whether in open confinement or 
housed under roof (beef cattle, broilers, layers, swine weighing 55 
pounds or more, swine weighing less than 55 pounds, mature dairy cows, 
dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys, 
other);
    (ii) Estimated amount of total manure, litter and process wastewater 
generated by the CAFO in the previous 12 months (tons/gallons);
    (iii) Estimated amount of total manure, litter and process 
wastewater transferred to other person by the CAFO in the previous 12 
months (tons/gallons);
    (iv) Total number of acres for land application covered by the 
nutrient management plan developed in accordance with paragraph (e)(1) 
of this section;
    (v) Total number of acres under control of the CAFO that were used 
for land application of manure, litter and process wastewater in the 
previous 12 months;
    (vi) Summary of all manure, litter and process wastewater discharges 
from the production area that have occurred in the previous 12 months, 
including date, time, and approximate volume; and
    (vii) A statement indicating whether the current version of the 
CAFO's nutrient management plan was developed or approved by a certified 
nutrient management planner; and
    (viii) The actual crop(s) planted and actual yield(s) for each 
field, the actual nitrogen and phosphorus content of the manure, litter, 
and process wastewater, the results of calculations conducted in 
accordance with paragraphs (e)(5)(i)(B) and (e)(5)(ii)(D) of this 
section, and the amount of manure, litter, and process wastewater 
applied to each field during the previous 12 months; and, for any CAFO 
that implements a nutrient management plan that addresses rates of 
application in accordance with paragraph (e)(5)(ii) of this section, the 
results of any soil testing for nitrogen and phosphorus taken during the 
preceding 12 months, the data used in calculations conducted in 
accordance with paragraph (e)(5)(ii)(D) of this section, and the amount 
of any supplemental fertilizer applied during the previous 12 months.
    (5) Terms of the nutrient management plan. Any permit issued to a 
CAFO must require compliance with the terms of the CAFO's site-specific 
nutrient management plan. The terms of the nutrient management plan are 
the information, protocols, best management practices, and other 
conditions in the nutrient management plan determined by the Director to 
be necessary to meet the requirements of paragraph (e)(1) of this 
section. The terms of the nutrient management plan, with respect to 
protocols for land application of manure, litter, or process wastewater 
required by paragraph (e)(1)(viii) of this section and, as applicable, 
40 CFR 412.4(c), must include the fields available for land application; 
field-specific rates of application properly developed, as specified in 
paragraphs (e)(5)(i) through (ii) of this section, to ensure appropriate 
agricultural utilization of the nutrients in the manure, litter, or 
process wastewater; and any timing limitations identified in the 
nutrient management plan concerning land application on the fields 
available for land application. The terms must address rates of 
application using one of the following two approaches, unless

[[Page 246]]

the Director specifies that only one of these approaches may be used:
    (i) Linear approach. An approach that expresses rates of application 
as pounds of nitrogen and phosphorus, according to the following 
specifications:
    (A) The terms include maximum application rates from manure, litter, 
and process wastewater for each year of permit coverage, for each crop 
identified in the nutrient management plan, in chemical forms determined 
to be acceptable to the Director, in pounds per acre, per year, for each 
field to be used for land application, and certain factors necessary to 
determine such rates. At a minimum, the factors that are terms must 
include: The outcome of the field-specific assessment of the potential 
for nitrogen and phosphorus transport from each field; the crops to be 
planted in each field or any other uses of a field such as pasture or 
fallow fields; the realistic yield goal for each crop or use identified 
for each field; the nitrogen and phosphorus recommendations from sources 
specified by the Director for each crop or use identified for each 
field; credits for all nitrogen in the field that will be plant 
available; consideration of multi-year phosphorus application; and 
accounting for all other additions of plant available nitrogen and 
phosphorus to the field. In addition, the terms include the form and 
source of manure, litter, and process wastewater to be land-applied; the 
timing and method of land application; and the methodology by which the 
nutrient management plan accounts for the amount of nitrogen and 
phosphorus in the manure, litter, and process wastewater to be applied.
    (B) Large CAFOs that use this approach must calculate the maximum 
amount of manure, litter, and process wastewater to be land applied at 
least once each year using the results of the most recent representative 
manure, litter, and process wastewater tests for nitrogen and phosphorus 
taken within 12 months of the date of land application; or
    (ii) Narrative rate approach. An approach that expresses rates of 
application as a narrative rate of application that results in the 
amount, in tons or gallons, of manure, litter, and process wastewater to 
be land applied, according to the following specifications:
    (A) The terms include maximum amounts of nitrogen and phosphorus 
derived from all sources of nutrients, for each crop identified in the 
nutrient management plan, in chemical forms determined to be acceptable 
to the Director, in pounds per acre, for each field, and certain factors 
necessary to determine such amounts. At a minimum, the factors that are 
terms must include: the outcome of the field-specific assessment of the 
potential for nitrogen and phosphorus transport from each field; the 
crops to be planted in each field or any other uses such as pasture or 
fallow fields (including alternative crops identified in accordance with 
paragraph (e)(5)(ii)(B) of this section); the realistic yield goal for 
each crop or use identified for each field; and the nitrogen and 
phosphorus recommendations from sources specified by the Director for 
each crop or use identified for each field. In addition, the terms 
include the methodology by which the nutrient management plan accounts 
for the following factors when calculating the amounts of manure, 
litter, and process wastewater to be land applied: Results of soil tests 
conducted in accordance with protocols identified in the nutrient 
management plan, as required by paragraph (e)(1)(vii) of this section; 
credits for all nitrogen in the field that will be plant available; the 
amount of nitrogen and phosphorus in the manure, litter, and process 
wastewater to be applied; consideration of multi-year phosphorus 
application; accounting for all other additions of plant available 
nitrogen and phosphorus to the field; the form and source of manure, 
litter, and process wastewater; the timing and method of land 
application; and volatilization of nitrogen and mineralization of 
organic nitrogen.
    (B) The terms of the nutrient management plan include alternative 
crops identified in the CAFO's nutrient management plan that are not in 
the planned crop rotation. Where a CAFO includes alternative crops in 
its nutrient management plan, the crops must be listed by field, in 
addition to the crops identified in the planned crop rotation for that 
field, and the nutrient

[[Page 247]]

management plan must include realistic crop yield goals and the nitrogen 
and phosphorus recommendations from sources specified by the Director 
for each crop. Maximum amounts of nitrogen and phosphorus from all 
sources of nutrients and the amounts of manure, litter, and process 
wastewater to be applied must be determined in accordance with the 
methodology described in paragraph (e)(5)(ii)(A) of this section.
    (C) For CAFOs using this approach, the following projections must be 
included in the nutrient management plan submitted to the Director, but 
are not terms of the nutrient management plan: The CAFO's planned crop 
rotations for each field for the period of permit coverage; the 
projected amount of manure, litter, or process wastewater to be applied; 
projected credits for all nitrogen in the field that will be plant 
available; consideration of multi-year phosphorus application; 
accounting for all other additions of plant available nitrogen and 
phosphorus to the field; and the predicted form, source, and method of 
application of manure, litter, and process wastewater for each crop. 
Timing of application for each field, insofar as it concerns the 
calculation of rates of application, is not a term of the nutrient 
management plan.
    (D) CAFOs that use this approach must calculate maximum amounts of 
manure, litter, and process wastewater to be land applied at least once 
each year using the methodology required in paragraph (e)(5)(ii)(A) of 
this section before land applying manure, litter, and process wastewater 
and must rely on the following data:
    (1) A field-specific determination of soil levels of nitrogen and 
phosphorus, including, for nitrogen, a concurrent determination of 
nitrogen that will be plant available consistent with the methodology 
required by paragraph (e)(5)(ii)(A) of this section, and for phosphorus, 
the results of the most recent soil test conducted in accordance with 
soil testing requirements approved by the Director; and
    (2) The results of most recent representative manure, litter, and 
process wastewater tests for nitrogen and phosphorus taken within 12 
months of the date of land application, in order to determine the amount 
of nitrogen and phosphorus in the manure, litter, and process wastewater 
to be applied.
    (6) Changes to a nutrient management plan. Any permit issued to a 
CAFO must require the following procedures to apply when a CAFO owner or 
operator makes changes to the CAFO's nutrient management plan previously 
submitted to the Director:
    (i) The CAFO owner or operator must provide the Director with the 
most current version of the CAFO's nutrient management plan and identify 
changes from the previous version, except that the results of 
calculations made in accordance with the requirements of paragraphs 
(e)(5)(i)(B) and (e)(5)(ii)(D) of this section are not subject to the 
requirements of paragraph (e)(6) of this section.
    (ii) The Director must review the revised nutrient management plan 
to ensure that it meets the requirements of this section and applicable 
effluent limitations and standards, including those specified in 40 CFR 
part 412, and must determine whether the changes to the nutrient 
management plan necessitate revision to the terms of the nutrient 
management plan incorporated into the permit issued to the CAFO. If 
revision to the terms of the nutrient management plan is not necessary, 
the Director must notify the CAFO owner or operator and upon such 
notification the CAFO may implement the revised nutrient management 
plan. If revision to the terms of the nutrient management plan is 
necessary, the Director must determine whether such changes are 
substantial changes as described in paragraph (e)(6)(iii) of this 
section.
    (A) If the Director determines that the changes to the terms of the 
nutrient management plan are not substantial, the Director must make the 
revised nutrient management plan publicly available and include it in 
the permit record, revise the terms of the nutrient management plan 
incorporated into the permit, and notify the owner or operator and 
inform the public of any changes to the terms of the nutrient management 
plan that are incorporated into the permit.

[[Page 248]]

    (B) If the Director determines that the changes to the terms of the 
nutrient management plan are substantial, the Director must notify the 
public and make the proposed changes and the information submitted by 
the CAFO owner or operator available for public review and comment. The 
process for public comments, hearing requests, and the hearing process 
if a hearing is held must follow the procedures applicable to draft 
permits set forth in 40 CFR 124.11 through 124.13. The Director may 
establish, either by regulation or in the CAFO's permit, an appropriate 
period of time for the public to comment and request a hearing on the 
proposed changes that differs from the time period specified in 40 CFR 
124.10. The Director must respond to all significant comments received 
during the comment period as provided in 40 CFR 124.17, and require the 
CAFO owner or operator to further revise the nutrient management plan if 
necessary, in order to approve the revision to the terms of the nutrient 
management plan incorporated into the CAFO's permit. Once the Director 
incorporates the revised terms of the nutrient management plan into the 
permit, the Director must notify the owner or operator and inform the 
public of the final decision concerning revisions to the terms and 
conditions of the permit.
    (iii) Substantial changes to the terms of a nutrient management plan 
incorporated as terms and conditions of a permit include, but are not 
limited to:
    (A) Addition of new land application areas not previously included 
in the CAFO's nutrient management plan. Except that if the land 
application area that is being added to the nutrient management plan is 
covered by terms of a nutrient management plan incorporated into an 
existing NPDES permit in accordance with the requirements of paragraph 
(e)(5) of this section, and the CAFO owner or operator applies manure, 
litter, or process wastewater on the newly added land application area 
in accordance with the existing field-specific permit terms applicable 
to the newly added land application area, such addition of new land 
would be a change to the new CAFO owner or operator's nutrient 
management plan but not a substantial change for purposes of this 
section;
    (B) Any changes to the field-specific maximum annual rates for land 
application, as set forth in paragraphs (e)(5)(i) of this section, and 
to the maximum amounts of nitrogen and phosphorus derived from all 
sources for each crop, as set forth in paragraph (e)(5)(ii) of this 
section;
    (C) Addition of any crop or other uses not included in the terms of 
the CAFO's nutrient management plan and corresponding field-specific 
rates of application expressed in accordance with paragraph (e)(5) of 
this section; and
    (D) Changes to site-specific components of the CAFO's nutrient 
management plan, where such changes are likely to increase the risk of 
nitrogen and phosphorus transport to waters of the U.S.
    (iv) For EPA-issued permits only. Upon incorporation of the revised 
terms of the nutrient management plan into the permit, 40 CFR 124.19 
specifies procedures for appeal of the permit decision. In addition to 
the procedures specified at 40 CFR 124.19, a person must have submitted 
comments or participated in the public hearing in order to appeal the 
permit decision.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38049, Sept. 26, 1984; 
50 FR 4514, Jan. 31, 1985; 55 FR 48073, Nov. 16, 1990; 57 FR 60448, Dec. 
18, 1992; 68 FR 7268, Feb. 12, 2003; 71 FR 6984, Feb. 10, 2006; 72 FR 
40250, July 24, 2007; 73 FR 70483, Nov. 20, 2008]



Sec. 122.43  Establishing permit conditions (applicable to State programs, see 

Sec. 123.25).

    (a) In addition to conditions required in all permits (Sec. Sec. 
122.41 and 122.42), the Director shall establish conditions, as required 
on a case-by-case basis, to provide for and assure compliance with all 
applicable requirements of CWA and regulations. These shall include 
conditions under Sec. Sec. 122.46 (duration of permits), 122.47(a) 
(schedules of compliance), 122.48 (monitoring), and for EPA permits only 
122.47(b) (alternates schedule of compliance) and 122.49 (considerations 
under Federal law).
    (b)(1) For a State issued permit, an applicable requirement is a 
State statutory or regulatory requirement which

[[Page 249]]

takes effect prior to final administrative disposition of a permit. For 
a permit issued by EPA, an applicable requirement is a statutory or 
regulatory requirement (including any interim final regulation) which 
takes effect prior to the issuance of the permit. Section 124.14 
(reopening of comment period) provides a means for reopening EPA permit 
proceedings at the discretion of the Director where new requirements 
become effective during the permitting process and are of sufficient 
magnitude to make additional proceedings desirable. For State and EPA 
administered programs, an applicable requirement is also any requirement 
which takes effect prior to the modification or revocation and 
reissuance of a permit, to the extent allowed in Sec. 122.62.
    (2) New or reissued permits, and to the extent allowed under Sec. 
122.62 modified or revoked and reissued permits, shall incorporate each 
of the applicable requirements referenced in Sec. Sec. 122.44 and 
122.45.
    (c) Incorporation. All permit conditions shall be incorporated 
either expressly or by reference. If incorporated by reference, a 
specific citation to the applicable regulations or requirements must be 
given in the permit.

[48 FR 14153, Apr. 1, 1983, as amended at 65 FR 30908, May 15, 2000]



Sec. 122.44  Establishing limitations, standards, and other permit conditions 

(applicable to State NPDES programs, see Sec. 123.25).

    In addition to the conditions established under Sec. 122.43(a), 
each NPDES permit shall include conditions meeting the following 
requirements when applicable.
    (a)(1) Technology-based effluent limitations and standards based on: 
effluent limitations and standards promulgated under section 301 of the 
CWA, or new source performance standards promulgated under section 306 
of CWA, on case-by-case effluent limitations determined under section 
402(a)(1) of CWA, or a combination of the three, in accordance with 
Sec. 125.3 of this chapter. For new sources or new dischargers, these 
technology based limitations and standards are subject to the provisions 
of Sec. 122.29(d) (protection period).
    (2) Monitoring waivers for certain guideline-listed pollutants. (i) 
The Director may authorize a discharger subject to technology-based 
effluent limitations guidelines and standards in an NPDES permit to 
forego sampling of a pollutant found at 40 CFR Subchapter N of this 
chapter if the discharger has demonstrated through sampling and other 
technical factors that the pollutant is not present in the discharge or 
is present only at background levels from intake water and without any 
increase in the pollutant due to activities of the discharger.
    (ii) This waiver is good only for the term of the permit and is not 
available during the term of the first permit issued to a discharger.
    (iii) Any request for this waiver must be submitted when applying 
for a reissued permit or modification of a reissued permit. The request 
must demonstrate through sampling or other technical information, 
including information generated during an earlier permit term that the 
pollutant is not present in the discharge or is present only at 
background levels from intake water and without any increase in the 
pollutant due to activities of the discharger.
    (iv) Any grant of the monitoring waiver must be included in the 
permit as an express permit condition and the reasons supporting the 
grant must be documented in the permit's fact sheet or statement of 
basis.
    (v) This provision does not supersede certification processes and 
requirements already established in existing effluent limitations 
guidelines and standards.
    (b)(1) Other effluent limitations and standards under sections 301, 
302, 303, 307, 318 and 405 of CWA. If any applicable toxic effluent 
standard or prohibition (including any schedule of compliance specified 
in such effluent standard or prohibition) is promulgated under section 
307(a) of CWA for a toxic pollutant and that standard or prohibition is 
more stringent than any limitation on the pollutant in the permit, the 
Director shall institute proceedings under these regulations to modify 
or revoke and reissue the permit to conform to the toxic effluent 
standard or prohibition. See also Sec. 122.41(a).

[[Page 250]]

    (2) Standards for sewage sludge use or disposal under section 405(d) 
of the CWA unless those standards have been included in a permit issued 
under the appropriate provisions of subtitle C of the Solid Waste 
Disposal Act, Part C of Safe Drinking Water Act, the Marine Protection, 
Research, and Sanctuaries Act of 1972, or the Clean Air Act, or under 
State permit programs approved by the Administrator. When there are no 
applicable standards for sewage sludge use or disposal, the permit may 
include requirements developed on a case-by-case basis to protect public 
health and the environment from any adverse effects which may occur from 
toxic pollutants in sewage sludge. If any applicable standard for sewage 
sludge use or disposal is promulgated under section 405(d) of the CWA 
and that standard is more stringent than any limitation on the pollutant 
or practice in the permit, the Director may initiate proceedings under 
these regulations to modify or revoke and reissue the permit to conform 
to the standard for sewage sludge use or disposal.
    (3) Requirements applicable to cooling water intake structures under 
section 316(b) of the CWA, in accordance with part 125, subparts I, J, 
and N of this chapter.
    (c) Reopener clause: For any permit issued to a treatment works 
treating domestic sewage (including ``sludge-only facilities''), the 
Director shall include a reopener clause to incorporate any applicable 
standard for sewage sludge use or disposal promulgated under section 
405(d) of the CWA. The Director may promptly modify or revoke and 
reissue any permit containing the reopener clause required by this 
paragraph if the standard for sewage sludge use or disposal is more 
stringent than any requirements for sludge use or disposal in the 
permit, or controls a pollutant or practice not limited in the permit.
    (d) Water quality standards and State requirements: any requirements 
in addition to or more stringent than promulgated effluent limitations 
guidelines or standards under sections 301, 304, 306, 307, 318 and 405 
of CWA necessary to:
    (1) Achieve water quality standards established under section 303 of 
the CWA, including State narrative criteria for water quality.
    (i) Limitations must control all pollutants or pollutant parameters 
(either conventional, nonconventional, or toxic pollutants) which the 
Director determines are or may be discharged at a level which will 
cause, have the reasonable potential to cause, or contribute to an 
excursion above any State water quality standard, including State 
narrative criteria for water quality.
    (ii) When determining whether a discharge causes, has the reasonable 
potential to cause, or contributes to an in-stream excursion above a 
narrative or numeric criteria within a State water quality standard, the 
permitting authority shall use procedures which account for existing 
controls on point and nonpoint sources of pollution, the variability of 
the pollutant or pollutant parameter in the effluent, the sensitivity of 
the species to toxicity testing (when evaluating whole effluent 
toxicity), and where appropriate, the dilution of the effluent in the 
receiving water.
    (iii) When the permitting authority determines, using the procedures 
in paragraph (d)(1)(ii) of this section, that a discharge causes, has 
the reasonable potential to cause, or contributes to an in-stream 
excursion above the allowable ambient concentration of a State numeric 
criteria within a State water quality standard for an individual 
pollutant, the permit must contain effluent limits for that pollutant.
    (iv) When the permitting authority determines, using the procedures 
in paragraph (d)(1)(ii) of this section, that a discharge causes, has 
the reasonable potential to cause, or contributes to an in-stream 
excursion above the numeric criterion for whole effluent toxicity, the 
permit must contain effluent limits for whole effluent toxicity.
    (v) Except as provided in this subparagraph, when the permitting 
authority determines, using the procedures in paragraph (d)(1)(ii) of 
this section, toxicity testing data, or other information, that a 
discharge causes, has the reasonable potential to cause, or contributes 
to an in-stream excursion above a narrative criterion within an

[[Page 251]]

applicable State water quality standard, the permit must contain 
effluent limits for whole effluent toxicity. Limits on whole effluent 
toxicity are not necessary where the permitting authority demonstrates 
in the fact sheet or statement of basis of the NPDES permit, using the 
procedures in paragraph (d)(1)(ii) of this section, that chemical-
specific limits for the effluent are sufficient to attain and maintain 
applicable numeric and narrative State water quality standards.
    (vi) Where a State has not established a water quality criterion for 
a specific chemical pollutant that is present in an effluent at a 
concentration that causes, has the reasonable potential to cause, or 
contributes to an excursion above a narrative criterion within an 
applicable State water quality standard, the permitting authority must 
establish effluent limits using one or more of the following options:
    (A) Establish effluent limits using a calculated numeric water 
quality criterion for the pollutant which the permitting authority 
demonstrates will attain and maintain applicable narrative water quality 
criteria and will fully protect the designated use. Such a criterion may 
be derived using a proposed State criterion, or an explicit State policy 
or regulation interpreting its narrative water quality criterion, 
supplemented with other relevant information which may include: EPA's 
Water Quality Standards Handbook, October 1983, risk assessment data, 
exposure data, information about the pollutant from the Food and Drug 
Administration, and current EPA criteria documents; or
    (B) Establish effluent limits on a case-by-case basis, using EPA's 
water quality criteria, published under section 304(a) of the CWA, 
supplemented where necessary by other relevant information; or
    (C) Establish effluent limitations on an indicator parameter for the 
pollutant of concern, provided:
    (1) The permit identifies which pollutants are intended to be 
controlled by the use of the effluent limitation;
    (2) The fact sheet required by Sec. 124.56 sets forth the basis for 
the limit, including a finding that compliance with the effluent limit 
on the indicator parameter will result in controls on the pollutant of 
concern which are sufficient to attain and maintain applicable water 
quality standards;
    (3) The permit requires all effluent and ambient monitoring 
necessary to show that during the term of the permit the limit on the 
indicator parameter continues to attain and maintain applicable water 
quality standards; and
    (4) The permit contains a reopener clause allowing the permitting 
authority to modify or revoke and reissue the permit if the limits on 
the indicator parameter no longer attain and maintain applicable water 
quality standards.
    (vii) When developing water quality-based effluent limits under this 
paragraph the permitting authority shall ensure that:
    (A) The level of water quality to be achieved by limits on point 
sources established under this paragraph is derived from, and complies 
with all applicable water quality standards; and
    (B) Effluent limits developed to protect a narrative water quality 
criterion, a numeric water quality criterion, or both, are consistent 
with the assumptions and requirements of any available wasteload 
allocation for the discharge prepared by the State and approved by EPA 
pursuant to 40 CFR 130.7.
    (2) Attain or maintain a specified water quality through water 
quality related effluent limits established under section 302 of CWA;
    (3) Conform to the conditions to a State certification under section 
401 of the CWA that meets the requirements of Sec. 124.53 when EPA is 
the permitting authority. If a State certification is stayed by a court 
of competent jurisdiction or an appropriate State board or agency, EPA 
shall notify the State that the Agency will deem certification waived 
unless a finally effective State certification is received within sixty 
days from the date of the notice. If the State does not forward a 
finally effective certification within the sixty day period, EPA shall 
include conditions in the permit that may be necessary to meet EPA's 
obligation under section 301(b)(1)(C) of the CWA;
    (4) Conform to applicable water quality requirements under section 
401(a)(2)

[[Page 252]]

of CWA when the discharge affects a State other than the certifying 
State;
    (5) Incorporate any more stringent limitations, treatment standards, 
or schedule of compliance requirements established under Federal or 
State law or regulations in accordance with section 301(b)(1)(C) of CWA;
    (6) Ensure consistency with the requirements of a Water Quality 
Management plan approved by EPA under section 208(b) of CWA;
    (7) Incorporate section 403(c) criteria under part 125, subpart M, 
for ocean discharges;
    (8) Incorporate alternative effluent limitations or standards where 
warranted by ``fundamentally different factors,'' under 40 CFR part 125, 
subpart D;
    (9) Incorporate any other appropriate requirements, conditions, or 
limitations (other than effluent limitations) into a new source permit 
to the extent allowed by the National Environmental Policy Act, 42 
U.S.C. 4321 et seq. and section 511 of the CWA, when EPA is the permit 
issuing authority. (See Sec. 122.29(c)).
    (e) Technology-based controls for toxic pollutants. Limitations 
established under paragraphs (a), (b), or (d) of this section, to 
control pollutants meeting the criteria listed in paragraph (e)(1) of 
this section. Limitations will be established in accordance with 
paragraph (e)(2) of this section. An explanation of the development of 
these limitations shall be included in the fact sheet under Sec. 
124.56(b)(1)(i).
    (1) Limitations must control all toxic pollutants which the Director 
determines (based on information reported in a permit application under 
Sec. 122.21(g)(7) or in a notification under Sec. 122.42(a)(1) or on 
other information) are or may be discharged at a level greater than the 
level which can be achieved by the technology-based treatment 
requirements appropriate to the permittee under Sec. 125.3(c) of this 
chapter; or
    (2) The requirement that the limitations control the pollutants 
meeting the criteria of paragraph (e)(1) of this section will be 
satisfied by:
    (i) Limitations on those pollutants; or
    (ii) Limitations on other pollutants which, in the judgment of the 
Director, will provide treatment of the pollutants under paragraph 
(e)(1) of this section to the levels required by Sec. 125.3(c).
    (f) Notification level. A ``notification level'' which exceeds the 
notification level of Sec. 122.42(a)(1)(i), (ii) or (iii), upon a 
petition from the permittee or on the Director's initiative. This new 
notification level may not exceed the level which can be achieved by the 
technology-based treatment requirements appropriate to the permittee 
under Sec. 125.3(c)
    (g) Twenty-four hour reporting. Pollutants for which the permittee 
must report violations of maximum daily discharge limitations under 
Sec. 122.41(1)(6)(ii)(C) (24-hour reporting) shall be listed in the 
permit. This list shall include any toxic pollutant or hazardous 
substance, or any pollutant specifically identified as the method to 
control a toxic pollutant or hazardous substance.
    (h) Durations for permits, as set forth in Sec. 122.46.
    (i) Monitoring requirements. In addition to Sec. 122.48, the 
following monitoring requirements:
    (1) To assure compliance with permit limitations, requirements to 
monitor:
    (i) The mass (or other measurement specified in the permit) for each 
pollutant limited in the permit;
    (ii) The volume of effluent discharged from each outfall;
    (iii) Other measurements as appropriate including pollutants in 
internal waste streams under Sec. 122.45(i); pollutants in intake water 
for net limitations under Sec. 122.45(f); frequency, rate of discharge, 
etc., for noncontinuous discharges under Sec. 122.45(e); pollutants 
subject to notification requirements under Sec. 122.42(a); and 
pollutants in sewage sludge or other monitoring as specified in 40 CFR 
part 503; or as determined to be necessary on a case-by-case basis 
pursuant to section 405(d)(4) of the CWA.
    (iv) According to test procedures approved under 40 CFR Part 136 for 
the analyses of pollutants or another method is required under 40 CFR 
subchapters N or O. In the case of pollutants for which there are no 
approved

[[Page 253]]

methods under 40 CFR Part 136 or otherwise required under 40 CFR 
subchapters N or O, monitoring must be conducted according to a test 
procedure specified in the permit for such pollutants.
    (2) Except as provided in paragraphs (i)(4) and (i)(5) of this 
section, requirements to report monitoring results shall be established 
on a case-by-case basis with a frequency dependent on the nature and 
effect of the discharge, but in no case less than once a year. For 
sewage sludge use or disposal practices, requirements to monitor and 
report results shall be established on a case-by-case basis with a 
frequency dependent on the nature and effect of the sewage sludge use or 
disposal practice; minimally this shall be as specified in 40 CFR part 
503 (where applicable), but in no case less than once a year.
    (3) Requirements to report monitoring results for storm water 
discharges associated with industrial activity which are subject to an 
effluent limitation guideline shall be established on a case-by-case 
basis with a frequency dependent on the nature and effect of the 
discharge, but in no case less than once a year.
    (4) Requirements to report monitoring results for storm water 
discharges associated with industrial activity (other than those 
addressed in paragraph (i)(3) of this section) shall be established on a 
case-by-case basis with a frequency dependent on the nature and effect 
of the discharge. At a minimum, a permit for such a discharge must 
require:
    (i) The discharger to conduct an annual inspection of the facility 
site to identify areas contributing to a storm water discharge 
associated with industrial activity and evaluate whether measures to 
reduce pollutant loadings identified in a storm water pollution 
prevention plan are adequate and properly implemented in accordance with 
the terms of the permit or whether additional control measures are 
needed;
    (ii) The discharger to maintain for a period of three years a record 
summarizing the results of the inspection and a certification that the 
facility is in compliance with the plan and the permit, and identifying 
any incidents of non-compliance;
    (iii) Such report and certification be signed in accordance with 
Sec. 122.22; and
    (iv) Permits for storm water discharges associated with industrial 
activity from inactive mining operations may, where annual inspections 
are impracticable, require certification once every three years by a 
Registered Professional Engineer that the facility is in compliance with 
the permit, or alternative requirements.
    (5) Permits which do not require the submittal of monitoring result 
reports at least annually shall require that the permittee report all 
instances of noncompliance not reported under Sec. 122.41(l) (1), (4), 
(5), and (6) at least annually.
    (j) Pretreatment program for POTWs. Requirements for POTWs to:
    (1) Identify, in terms of character and volume of pollutants, any 
Significant Industrial Users discharging into the POTW subject to 
Pretreatment Standards under section 307(b) of CWA and 40 CFR part 403.
    (2)(i) Submit a local program when required by and in accordance 
with 40 CFR part 403 to assure compliance with pretreatment standards to 
the extent applicable under section 307(b). The local program shall be 
incorporated into the permit as described in 40 CFR part 403. The 
program must require all indirect dischargers to the POTW to comply with 
the reporting requirements of 40 CFR part 403.
    (ii) Provide a written technical evaluation of the need to revise 
local limits under 40 CFR 403.5(c)(1), following permit issuance or 
reissuance.
    (3) For POTWs which are ``sludge-only facilities,'' a requirement to 
develop a pretreatment program under 40 CFR part 403 when the Director 
determines that a pretreatment program is necessary to assure compliance 
with Section 405(d) of the CWA.
    (k) Best management practices (BMPs) to control or abate the 
discharge of pollutants when:
    (1) Authorized under section 304(e) of the CWA for the control of 
toxic pollutants and hazardous substances from ancillary industrial 
activities;
    (2) Authorized under section 402(p) of the CWA for the control of 
storm water discharges;

[[Page 254]]

    (3) Numeric effluent limitations are infeasible; or
    (4) The practices are reasonably necessary to achieve effluent 
limitations and standards or to carry out the purposes and intent of the 
CWA.
    Note to paragraph (k)(4): Additional technical information on BMPs 
and the elements of BMPs is contained in the following documents: 
Guidance Manual for Developing Best Management Practices (BMPs), October 
1993, EPA No. 833/B-93-004, NTIS No. PB 94-178324, ERIC No. W498); Storm 
Water Management for Construction Activities: Developing Pollution 
Prevention Plans and Best Management Practices, September 1992, EPA No. 
832/R-92-005, NTIS No. PB 92-235951, ERIC No. N482); Storm Water 
Management for Construction Activities, Developing Pollution Prevention 
Plans and Best Management Practices: Summary Guidance, EPA No. 833/R-92-
001, NTIS No. PB 93-223550; ERIC No. W139; Storm Water Management for 
Industrial Activities, Developing Pollution Prevention Plans and Best 
Management Practices, September 1992; EPA 832/R-92-006, NTIS No. PB 92-
235969, ERIC No. N477; Storm Water Management for Industrial Activities, 
Developing Pollution Prevention Plans and Best Management Practices: 
Summary Guidance, EPA 833/R-92-002, NTIS No. PB 94-133782; ERIC No. 
W492. Copies of those documents (or directions on how to obtain them) 
can be obtained by contacting either the Office of Water Resource Center 
(using the EPA document number as a reference) at (202) 260-7786; or the 
Educational Resources Information Center (ERIC) (using the ERIC number 
as a reference) at (800) 276-0462. Updates of these documents or 
additional BMP documents may also be available. A list of EPA BMP 
guidance documents is available on the OWM Home Page at http://
www.epa.gov/owm. In addition, States may have BMP guidance documents.
    These EPA guidance documents are listed here only for informational 
purposes; they are not binding and EPA does not intend that these 
guidance documents have any mandatory, regulatory effect by virtue of 
their listing in this note.
    (l) Reissued permits. (1) Except as provided in paragraph (l)(2) of 
this section when a permit is renewed or reissued, interim effluent 
limitations, standards or conditions must be at least as stringent as 
the final effluent limitations, standards, or conditions in the previous 
permit (unless the circumstances on which the previous permit was based 
have materially and substantially changed since the time the permit was 
issued and would constitute cause for permit modification or revocation 
and reissuance under Sec. 122.62.)
    (2) In the case of effluent limitations established on the basis of 
Section 402(a)(1)(B) of the CWA, a permit may not be renewed, reissued, 
or modified on the basis of effluent guidelines promulgated under 
section 304(b) subsequent to the original issuance of such permit, to 
contain effluent limitations which are less stringent than the 
comparable effluent limitations in the previous permit.
    (i) Exceptions--A permit with respect to which paragraph (l)(2) of 
this section applies may be renewed, reissued, or modified to contain a 
less stringent effluent limitation applicable to a pollutant, if--
    (A) Material and substantial alterations or additions to the 
permitted facility occurred after permit issuance which justify the 
application of a less stringent effluent limitation;
    (B)(1) Information is available which was not available at the time 
of permit issuance (other than revised regulations, guidance, or test 
methods) and which would have justified the application of a less 
stringent effluent limitation at the time of permit issuance; or
    (2) The Administrator determines that technical mistakes or mistaken 
interpretations of law were made in issuing the permit under section 
402(a)(1)(b);
    (C) A less stringent effluent limitation is necessary because of 
events over which the permittee has no control and for which there is no 
reasonably available remedy;
    (D) The permittee has received a permit modification under section 
301(c), 301(g), 301(h), 301(i), 301(k), 301(n), or 316(a); or
    (E) The permittee has installed the treatment facilities required to 
meet the effluent limitations in the previous permit and has properly 
operated and maintained the facilities but has nevertheless been unable 
to achieve the previous effluent limitations, in which case the 
limitations in the reviewed, reissued, or modified permit may reflect 
the level of pollutant control actually achieved (but shall not be less 
stringent than required by effluent

[[Page 255]]

guidelines in effect at the time of permit renewal, reissuance, or 
modification).
    (ii) Limitations. In no event may a permit with respect to which 
paragraph (l)(2) of this section applies be renewed, reissued, or 
modified to contain an effluent limitation which is less stringent than 
required by effluent guidelines in effect at the time the permit is 
renewed, reissued, or modified. In no event may such a permit to 
discharge into waters be renewed, issued, or modified to contain a less 
stringent effluent limitation if the implementation of such limitation 
would result in a violation of a water quality standard under section 
303 applicable to such waters.
    (m) Privately owned treatment works. For a privately owned treatment 
works, any conditions expressly applicable to any user, as a limited co-
permittee, that may be necessary in the permit issued to the treatment 
works to ensure compliance with applicable requirements under this part. 
Alternatively, the Director may issue separate permits to the treatment 
works and to its users, or may require a separate permit application 
from any user. The Director's decision to issue a permit with no 
conditions applicable to any user, to impose conditions on one or more 
users, to issue separate permits, or to require separate applications, 
and the basis for that decision, shall be stated in the fact sheet for 
the draft permit for the treatment works.
    (n) Grants. Any conditions imposed in grants made by the 
Administrator to POTWs under sections 201 and 204 of CWA which are 
reasonably necessary for the achievement of effluent limitations under 
section 301 of CWA.
    (o) Sewage sludge. Requirements under section 405 of CWA governing 
the disposal of sewage sludge from publicly owned treatment works or any 
other treatment works treating domestic sewage for any use for which 
regulations have been established, in accordance with any applicable 
regulations.
    (p) Coast Guard. When a permit is issued to a facility that may 
operate at certain times as a means of transportation over water, a 
condition that the discharge shall comply with any applicable 
regulations promulgated by the Secretary of the department in which the 
Coast Guard is operating, that establish specifications for safe 
transportation, handling, carriage, and storage of pollutants.
    (q) Navigation. Any conditions that the Secretary of the Army 
considers necessary to ensure that navigation and anchorage will not be 
substantially impaired, in accordance with Sec. 124.59 of this chapter.
    (r) Great Lakes. When a permit is issued to a facility that 
discharges into the Great Lakes System (as defined in 40 CFR 132.2), 
conditions promulgated by the State, Tribe, or EPA pursuant to 40 CFR 
part 132.
    (s) Qualifying State, Tribal, or local programs. (1) For storm water 
discharges associated with small construction activity identified in 
Sec. 122.26(b)(15), the Director may include permit conditions that 
incorporate qualifying State, Tribal, or local erosion and sediment 
control program requirements by reference. Where a qualifying State, 
Tribal, or local program does not include one or more of the elements in 
this paragraph (s)(1), then the Director must include those elements as 
conditions in the permit. A qualifying State, Tribal, or local erosion 
and sediment control program is one that includes:
    (i) Requirements for construction site operators to implement 
appropriate erosion and sediment control best management practices;
    (ii) Requirements for construction site operators to control waste 
such as discarded building materials, concrete truck washout, chemicals, 
litter, and sanitary waste at the construction site that may cause 
adverse impacts to water quality;
    (iii) Requirements for construction site operators to develop and 
implement a storm water pollution prevention plan. (A storm water 
pollution prevention plan includes site descriptions, descriptions of 
appropriate control measures, copies of approved State, Tribal or local 
requirements, maintenance procedures, inspection procedures, and 
identification of non-storm water discharges); and

[[Page 256]]

    (iv) Requirements to submit a site plan for review that incorporates 
consideration of potential water quality impacts.
    (2) For storm water discharges from construction activity identified 
in Sec. 122.26(b)(14)(x), the Director may include permit conditions 
that incorporate qualifying State, Tribal, or local erosion and sediment 
control program requirements by reference. A qualifying State, Tribal or 
local erosion and sediment control program is one that includes the 
elements listed in paragraph (s)(1) of this section and any additional 
requirements necessary to achieve the applicable technology-based 
standards of ``best available technology'' and ``best conventional 
technology'' based on the best professional judgment of the permit 
writer.

[48 FR 14153, Apr. 1, 1983]

    Editorial Note: For Federal Register citations affecting Sec. 
122.44, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 122.45  Calculating NPDES permit conditions (applicable to State NPDES 

programs, see Sec. 123.25).

    (a) Outfalls and discharge points. All permit effluent limitations, 
standards and prohibitions shall be established for each outfall or 
discharge point of the permitted facility, except as otherwise provided 
under Sec. 122.44(k) (BMPs where limitations are infeasible) and 
paragraph (i) of this section (limitations on internal waste streams).
    (b) Production-based limitations. (1) In the case of POTWs, permit 
effluent limitations, standards, or prohibitions shall be calculated 
based on design flow.
    (2)(i) Except in the case of POTWs or as provided in paragraph 
(b)(2)(ii) of this section, calculation of any permit limitations, 
standards, or prohibitions which are based on production (or other 
measure of operation) shall be based not upon the designed production 
capacity but rather upon a reasonable measure of actual production of 
the facility. For new sources or new dischargers, actual production 
shall be estimated using projected production. The time period of the 
measure of production shall correspond to the time period of the 
calculated permit limitations; for example, monthly production shall be 
used to calculate average monthly discharge limitations.
    (ii)(A)(1) The Director may include a condition establishing 
alternate permit limitations, standards, or prohibitions based upon 
anticipated increased (not to exceed maximum production capability) or 
decreased production levels.
    (2) For the automotive manufacturing industry only, the Regional 
Administrator shall, and the State Director may establish a condition 
under paragraph (b)(2)(ii)(A)(1) of this section if the applicant 
satisfactorily demonstrates to the Director at the time the application 
is submitted that its actual production, as indicated in paragraph 
(b)(2)(i) of this section, is substantially below maximum production 
capability and that there is a reasonable potential for an increase 
above actual production during the duration of the permit.
    (B) If the Director establishes permit conditions under paragraph 
(b)(2)(ii)(A) of this section:
    (1) The permit shall require the permittee to notify the Director at 
least two business days prior to a month in which the permittee expects 
to operate at a level higher than the lowest production level identified 
in the permit. The notice shall specify the anticipated level and the 
period during which the permittee expects to operate at the alternate 
level. If the notice covers more than one month, the notice shall 
specify the reasons for the anticipated production level increase. New 
notice of discharge at alternate levels is required to cover a period or 
production level not covered by prior notice or, if during two 
consecutive months otherwise covered by a notice, the production level 
at the permitted facility does not in fact meet the higher level 
designated in the notice.
    (2) The permittee shall comply with the limitations, standards, or 
prohibitions that correspond to the lowest level of production specified 
in the permit, unless the permittee has notified the Director under 
paragraph (b)(2)(ii)(B)(1) of this section, in which case the permittee 
shall comply with

[[Page 257]]

the lower of the actual level of production during each month or the 
level specified in the notice.
    (3) The permittee shall submit with the DMR the level of production 
that actually occurred during each month and the limitations, standards, 
or prohibitions applicable to that level of production.
    (c) Metals. All permit effluent limitations, standards, or 
prohibitions for a metal shall be expressed in terms of ``total 
recoverable metal'' as defined in 40 CFR part 136 unless:
    (1) An applicable effluent standard or limitation has been 
promulgated under the CWA and specifies the limitation for the metal in 
the dissolved or valent or total form; or
    (2) In establishing permit limitations on a case-by-case basis under 
Sec. 125.3, it is necessary to express the limitation on the metal in 
the dissolved or valent or total form to carry out the provisions of the 
CWA; or
    (3) All approved analytical methods for the metal inherently measure 
only its dissolved form (e.g., hexavalent chromium).
    (d) Continuous discharges. For continuous discharges all permit 
effluent limitations, standards, and prohibitions, including those 
necessary to achieve water quality standards, shall unless impracticable 
be stated as:
    (1) Maximum daily and average monthly discharge limitations for all 
dischargers other than publicly owned treatment works; and
    (2) Average weekly and average monthly discharge limitations for 
POTWs.
    (e) Non-continuous discharges. Discharges which are not continuous, 
as defined in Sec. 122.2, shall be particularly described and limited, 
considering the following factors, as appropriate:
    (1) Frequency (for example, a batch discharge shall not occur more 
than once every 3 weeks);
    (2) Total mass (for example, not to exceed 100 kilograms of zinc and 
200 kilograms of chromium per batch discharge);
    (3) Maximum rate of discharge of pollutants during the discharge 
(for example, not to exceed 2 kilograms of zinc per minute); and
    (4) Prohibition or limitation of specified pollutants by mass, 
concentration, or other appropriate measure (for example, shall not 
contain at any time more than 0.1 mg/1 zinc or more than 250 grams (\1/
4\ kilogram) of zinc in any discharge).
    (f) Mass limitations. (1) All pollutants limited in permits shall 
have limitations, standards or prohibitions expressed in terms of mass 
except:
    (i) For pH, temperature, radiation, or other pollutants which cannot 
appropriately be expressed by mass;
    (ii) When applicable standards and limitations are expressed in 
terms of other units of measurement; or
    (iii) If in establishing permit limitations on a case-by-case basis 
under Sec. 125.3, limitations expressed in terms of mass are infeasible 
because the mass of the pollutant discharged cannot be related to a 
measure of operation (for example, discharges of TSS from certain mining 
operations), and permit conditions ensure that dilution will not be used 
as a substitute for treatment.
    (2) Pollutants limited in terms of mass additionally may be limited 
in terms of other units of measurement, and the permit shall require the 
permittee to comply with both limitations.
    (g) Pollutants in intake water. (1) Upon request of the discharger, 
technology-based effluent limitations or standards shall be adjusted to 
reflect credit for pollutants in the discharger's intake water if:
    (i) The applicable effluent limitations and standards contained in 
40 CFR subchapter N specifically provide that they shall be applied on a 
net basis; or
    (ii) The discharger demonstrates that the control system it proposes 
or uses to meet applicable technology-based limitations and standards 
would, if properly installed and operated, meet the limitations and 
standards in the absence of pollutants in the intake waters.
    (2) Credit for generic pollutants such as biochemical oxygen demand 
(BOD) or total suspended solids (TSS) should not be granted unless the 
permittee demonstrates that the constituents of the generic measure in 
the effluent are

[[Page 258]]

substantially similar to the constituents of the generic measure in the 
intake water or unless appropriate additional limits are placed on 
process water pollutants either at the outfall or elsewhere.
    (3) Credit shall be granted only to the extent necessary to meet the 
applicable limitation or standard, up to a maximum value equal to the 
influent value. Additional monitoring may be necessary to determine 
eligibility for credits and compliance with permit limits.
    (4) Credit shall be granted only if the discharger demonstrates that 
the intake water is drawn from the same body of water into which the 
discharge is made. The Director may waive this requirement if he finds 
that no environmental degradation will result.
    (5) This section does not apply to the discharge of raw water 
clarifier sludge generated from the treatment of intake water.
    (h) Internal waste streams. (1) When permit effluent limitations or 
standards imposed at the point of discharge are impractical or 
infeasible, effluent limitations or standards for discharges of 
pollutants may be imposed on internal waste streams before mixing with 
other waste streams or cooling water streams. In those instances, the 
monitoring required by Sec. 122.48 shall also be applied to the 
internal waste streams.
    (2) Limits on internal waste streams will be imposed only when the 
fact sheet under Sec. 124.56 sets forth the exceptional circumstances 
which make such limitations necessary, such as when the final discharge 
point is inaccessible (for example, under 10 meters of water), the 
wastes at the point of discharge are so diluted as to make monitoring 
impracticable, or the interferences among pollutants at the point of 
discharge would make detection or analysis impracticable.
    (i) Disposal of pollutants into wells, into POTWs or by land 
application. Permit limitations and standards shall be calculated as 
provided in Sec. 122.50.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38049, Sept. 26, 1984; 
50 FR 4514, Jan. 31, 1985; 54 FR 258, Jan. 4, 1989; 54 FR 18784, May 2, 
1989; 65 FR 30909, May 15, 2000]



Sec. 122.46  Duration of permits (applicable to State programs, see Sec. 

123.25).

    (a) NPDES permits shall be effective for a fixed term not to exceed 
5 years.
    (b) Except as provided in Sec. 122.6, the term of a permit shall 
not be extended by modification beyond the maximum duration specified in 
this section.
    (c) The Director may issue any permit for a duration that is less 
than the full allowable term under this section.
    (d) A permit may be issued to expire on or after the statutory 
deadline set forth in section 301(b)(2) (A), (C), and (E), if the permit 
includes effluent limitations to meet the requirements of section 
301(b)(2) (A), (C), (D), (E) and (F), whether or not applicable effluent 
limitations guidelines have been promulgated or approved.
    (e) A determination that a particular discharger falls within a 
given industrial category for purposes of setting a permit expiration 
date under paragraph (d) of this section is not conclusive as to the 
discharger's inclusion in that industrial category for any other 
purposes, and does not prejudice any rights to challenge or change that 
inclusion at the time that a permit based on that determination is 
formulated.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 31842, Aug. 8, 1984; 50 
FR 6940, Feb. 19, 1985; 60 FR 33931, June 29, 1995]



Sec. 122.47  Schedules of compliance.

    (a) General (applicable to State programs, see Sec. 123.25). The 
permit may, when appropriate, specify a schedule of compliance leading 
to compliance with CWA and regulations.
    (1) Time for compliance. Any schedules of compliance under this 
section shall require compliance as soon as possible, but not later than 
the applicable statutory deadline under the CWA.
    (2) The first NPDES permit issued to a new source or a new 
discharger shall contain a schedule of compliance only when necessary to 
allow a reasonable opportunity to attain compliance with requirements 
issued or revised after commencement of construction but less than three 
years before commencement of the relevant discharge. For recommencing 
dischargers, a schedule of compliance shall be available only when 
necessary to allow a reasonable opportunity to attain compliance with

[[Page 259]]

requirements issued or revised less than three years before 
recommencement of discharge.
    (3) Interim dates. Except as provided in paragraph (b)(1)(ii) of 
this section, if a permit establishes a schedule of compliance which 
exceeds 1 year from the date of permit issuance, the schedule shall set 
forth interim requirements and the dates for their achievement.
    (i) The time between interim dates shall not exceed 1 year, except 
that in the case of a schedule for compliance with standards for sewage 
sludge use and disposal, the time between interim dates shall not exceed 
six months.
    (ii) If the time necessary for completion of any interim requirement 
(such as the construction of a control facility) is more than 1 year and 
is not readily divisible into stages for completion, the permit shall 
specify interim dates for the submission of reports of progress toward 
completion of the interim requirements and indicate a projected 
completion date.
    Note: Examples of interim requirements include: (a) Submit a 
complete Step 1 construction grant (for POTWs); (b) let a contract for 
construction of required facilities; (c) commence construction of 
required facilities; (d) complete construction of required facilities.
    (4) Reporting. The permit shall be written to require that no later 
than 14 days following each interim date and the final date of 
compliance, the permittee shall notify the Director in writing of its 
compliance or noncompliance with the interim or final requirements, or 
submit progress reports if paragraph (a)(3)(ii) is applicable.
    (b) Alternative schedules of compliance. An NPDES permit applicant 
or permittee may cease conducting regulated activities (by terminating 
of direct discharge for NPDES sources) rather than continuing to operate 
and meet permit requirements as follows:
    (1) If the permittee decides to cease conducting regulated 
activities at a given time within the term of a permit which has already 
been issued:
    (i) The permit may be modified to contain a new or additional 
schedule leading to timely cessation of activities; or
    (ii) The permittee shall cease conducting permitted activities 
before non-compliance with any interim or final compliance schedule 
requirement already specified in the permit.
    (2) If the decision to cease conducting regulated activities is made 
before issuance of a permit whose term will include the termination 
date, the permit shall contain a schedule leading to termination which 
will ensure timely compliance with applicable requirements no later than 
the statutory deadline.
    (3) If the permittee is undecided whether to cease conducting 
regulated activities, the Director may issue or modify a permit to 
contain two schedules as follows:
    (i) Both schedules shall contain an identical interim deadline 
requiring a final decision on whether to cease conducting regulated 
activities no later than a date which ensures sufficient time to comply 
with applicable requirements in a timely manner if the decision is to 
continue conducting regulated activities;
    (ii) One schedule shall lead to timely compliance with applicable 
requirements, no later than the statutory deadline;
    (iii) The second schedule shall lead to cessation of regulated 
activities by a date which will ensure timely compliance with applicable 
requirements no later than the statutory deadline.
    (iv) Each permit containing two schedules shall include a 
requirement that after the permittee has made a final decision under 
paragraph (b)(3)(i) of this section it shall follow the schedule leading 
to compliance if the decision is to continue conducting regulated 
activities, and follow the schedule leading to termination if the 
decision is to cease conducting regulated activities.
    (4) The applicant's or permittee's decision to cease conducting 
regulated activities shall be evidenced by a firm public commitment 
satisfactory to the Director, such as a resolution of the board of 
directors of a corporation.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050, Sept. 26, 1984; 
50 FR 6940, Feb. 19, 1985; 54 FR 18784, May 2, 1989; 65 FR 30909, May 
15, 2000]

[[Page 260]]



Sec. 122.48  Requirements for recording and reporting of monitoring results 

(applicable to State programs, see Sec. 123.25).

    All permits shall specify:
    (a) Requirements concerning the proper use, maintenance, and 
installation, when appropriate, of monitoring equipment or methods 
(including biological monitoring methods when appropriate);
    (b) Required monitoring including type, intervals, and frequency 
sufficient to yield data which are representative of the monitored 
activity including, when appropriate, continuous monitoring;
    (c) Applicable reporting requirements based upon the impact of the 
regulated activity and as specified in Sec. 122.44. Reporting shall be 
no less frequent than specified in the above regulation.

[48 FR 14153, Apr. 1, 1983; 50 FR 6940, Feb. 19, 1985]



Sec. 122.49  Considerations under Federal law.

    The following is a list of Federal laws that may apply to the 
issuance of permits under these rules. When any of these laws is 
applicable, its procedures must be followed. When the applicable law 
requires consideration or adoption of particular permit conditions or 
requires the denial of a permit, those requirements also must be 
followed.
    (a) The Wild and Scenic Rivers Act, 16 U.S.C. 1273 et seq. section 7 
of the Act prohibits the Regional Administrator from assisting by 
license or otherwise the construction of any water resources project 
that would have a direct, adverse effect on the values for which a 
national wild and scenic river was established.
    (b) The National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq. section 106 of the Act and implementing regulations (36 CFR part 
800) require the Regional Administrator, before issuing a license, to 
adopt measures when feasible to mitigate potential adverse effects of 
the licensed activity and properties listed or eligible for listing in 
the National Register of Historic Places. The Act's requirements are to 
be implemented in cooperation with State Historic Preservation Officers 
and upon notice to, and when appropriate, in consultation with the 
Advisory Council on Historic Preservation.
    (c) The Endangered Species Act, 16 U.S.C. 1531 et seq. section 7 of 
the Act and implementing regulations (50 CFR part 402) require the 
Regional Administrator to ensure, in consultation with the Secretary of 
the Interior or Commerce, that any action authorized by EPA is not 
likely to jeopardize the continued existence of any endangered or 
threatened species or adversely affect its critical habitat.
    (d) The Coastal Zone Management Act, 16 U.S.C. 1451 et seq. section 
307(c) of the Act and implementing regulations (15 CFR part 930) 
prohibit EPA from issuing a permit for an activity affecting land or 
water use in the coastal zone until the applicant certifies that the 
proposed activity complies with the State Coastal Zone Management 
program, and the State or its designated agency concurs with the 
certification (or the Secretary of Commerce overrides the State's 
nonconcurrence).
    (e) The Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq., 
requires that the Regional Administrator, before issuing a permit 
proposing or authorizing the impoundment (with certain exemptions), 
diversion, or other control or modification of any body of water, 
consult with the appropriate State agency exercising jurisdiction over 
wildlife resources to conserve those resources.
    (f) Executive orders. [Reserved]
    (g) The National Environmental Policy Act, 42 U.S.C. 4321 et seq., 
may require preparation of an Environmental Impact Statement and 
consideration of EIS-related permit conditions (other than effluent 
limitations) as provided in Sec. 122.29(c).

(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 38050, Sept. 26, 1984]

[[Page 261]]



Sec. 122.50  Disposal of pollutants into wells, into publicly owned treatment 

works or by land application (applicable to State NPDES programs, see Sec. 

123.25).

    (a) When part of a discharger's process wastewater is not being 
discharged into waters of the United States or contiguous zone because 
it is disposed into a well, into a POTW, or by land application thereby 
reducing the flow or level of pollutants being discharged into waters of 
the United States, applicable effluent standards and limitations for the 
discharge in an NPDES permit shall be adjusted to reflect the reduced 
raw waste resulting from such disposal. Effluent limitations and 
standards in the permit shall be calculated by one of the following 
methods:
    (1) If none of the waste from a particular process is discharged 
into waters of the United States, and effluent limitations guidelines 
provide separate allocation for wastes from that process, all 
allocations for the process shall be eliminated from calculation of 
permit effluent limitations or standards.
    (2) In all cases other than those described in paragraph (a)(1) of 
this section, effluent limitations shall be adjusted by multiplying the 
effluent limitation derived by applying effluent limitation guidelines 
to the total waste stream by the amount of wastewater flow to be treated 
and discharged into waters of the United States, and dividing the result 
by the total wastewater flow. Effluent limitations and standards so 
calculated may be further adjusted under part 125, subpart D to make 
them more or less stringent if discharges to wells, publicly owned 
treatment works, or by land application change the character or 
treatability of the pollutants being discharged to receiving waters. 
This method may be algebraically expressed as:
[GRAPHIC] [TIFF OMITTED] TR23MR95.119

where P is the permit effluent limitation, E is the limitation derived 
by applying effluent guidelines to the total wastestream, N is the 
wastewater flow to be treated and discharged to waters of the United 
States, and T is the total wastewater flow.

    (b) Paragraph (a) of this section does not apply to the extent that 
promulgated effluent limitations guidelines:
    (1) Control concentrations of pollutants discharged but not mass; or
    (2) Specify a different specific technique for adjusting effluent 
limitations to account for well injection, land application, or disposal 
into POTWs.
    (c) Paragraph (a) of this section does not alter a discharger's 
obligation to meet any more stringent requirements established under 
Sec. Sec. 122.41, 122.42, 122.43, and 122.44.

[48 FR 14153, Apr. 1, 1983, as amended at 49 FR 38050, Sept. 26, 1984]



    Subpart D_Transfer, Modification, Revocation and Reissuance, and 

                         Termination of Permits



Sec. 122.61  Transfer of permits (applicable to State programs, see Sec. 

123.25).

    (a) Transfers by modification. Except as provided in paragraph (b) 
of this section, a permit may be transferred by the permittee to a new 
owner or operator only if the permit has been modified or revoked and 
reissued (under Sec. 122.62(b)(2)), or a minor modification made (under 
Sec. 122.63(d)), to identify the new permittee and incorporate such 
other requirements as may be necessary under CWA.
    (b) Automatic transfers. As an alternative to transfers under 
paragraph (a) of this section, any NPDES permit may be automatically 
transferred to a new permittee if:
    (1) The current permittee notifies the Director at least 30 days in 
advance of the proposed transfer date in paragraph (b)(2) of this 
section;
    (2) The notice includes a written agreement between the existing and 
new permittees containing a specific date for transfer of permit 
responsibility, coverage, and liability between them; and
    (3) The Director does not notify the existing permittee and the 
proposed new permittee of his or her intent to modify or revoke and 
reissue the permit. A modification under this subparagraph may also be a 
minor modification under Sec. 122.63. If this notice is not received, 
the transfer is effective on the date specified in the agreement

[[Page 262]]

mentioned in paragraph (b)(2) of this section.



Sec. 122.62  Modification or revocation and reissuance of permits (applicable 

to State programs, see Sec. 123.25).

    When the Director receives any information (for example, inspects 
the facility, receives information submitted by the permittee as 
required in the permit (see Sec. 122.41), receives a request for 
modification or revocation and reissuance under Sec. 124.5, or conducts 
a review of the permit file) he or she may determine whether or not one 
or more of the causes listed in paragraphs (a) and (b) of this section 
for modification or revocation and reissuance or both exist. If cause 
exists, the Director may modify or revoke and reissue the permit 
accordingly, subject to the limitations of Sec. 124.5(c), and may 
request an updated application if necessary. When a permit is modified, 
only the conditions subject to modification are reopened. If a permit is 
revoked and reissued, the entire permit is reopened and subject to 
revision and the permit is reissued for a new term. See Sec. 
124.5(c)(2). If cause does not exist under this section or Sec. 122.63, 
the Director shall not modify or revoke and reissue the permit. If a 
permit modification satisfies the criteria in Sec. 122.63 for ``minor 
modifications'' the permit may be modified without a draft permit or 
public review. Otherwise, a draft permit must be prepared and other 
procedures in part 124 (or procedures of an approved State program) 
followed.
    (a) Causes for modification. The following are causes for 
modification but not revocation and reissuance of permits except when 
the permittee requests or agrees.
    (1) Alterations. There are material and substantial alterations or 
additions to the permitted facility or activity (including a change or 
changes in the permittee's sludge use or disposal practice) which 
occurred after permit issuance which justify the application of permit 
conditions that are different or absent in the existing permit.

    Note: Certain reconstruction activities may cause the new source 
provisions of Sec. 122.29 to be applicable.

    (2) Information. The Director has received new information. Permits 
may be modified during their terms for this cause only if the 
information was not available at the time of permit issuance (other than 
revised regulations, guidance, or test methods) and would have justified 
the application of different permit conditions at the time of issuance. 
For NPDES general permits (Sec. 122.28) this cause includes any 
information indicating that cumulative effects on the environment are 
unacceptable. For new source or new discharger NPDES permits Sec. Sec. 
122.21, 122.29), this cause shall include any significant information 
derived from effluent testing required under Sec. 122.21(k)(5)(vi) or 
Sec. 122.21(h)(4)(iii) after issuance of the permit.
    (3) New regulations. The standards or regulations on which the 
permit was based have been changed by promulgation of amended standards 
or regulations or by judicial decision after the permit was issued. 
Permits may be modified during their terms for this cause only as 
follows:
    (i) For promulgation of amended standards or regulations, when:
    (A) The permit condition requested to be modified was based on a 
promulgated effluent limitation guideline, EPA approved or promulgated 
water quality standards, or the Secondary Treatment Regulations under 
part 133; and
    (B) EPA has revised, withdrawn, or modified that portion of the 
regulation or effluent limitation guideline on which the permit 
condition was based, or has approved a State action with regard to a 
water quality standard on which the permit condition was based; and
    (C) A permittee requests modification in accordance with Sec. 124.5 
within ninety (90) days after Federal Register notice of the action on 
which the request is based.
    (ii) For judicial decisions, a court of competent jurisdiction has 
remanded and stayed EPA promulgated regulations or effluent limitation 
guidelines, if the remand and stay concern that portion of the 
regulations or guidelines on which the permit condition was based and a 
request is filed by the permittee in accordance with Sec. 124.5 within 
ninety (90) days of judicial remand.

[[Page 263]]

    (iii) For changes based upon modified State certifications of NPDES 
permits, see Sec. 124.55(b).
    (4) Compliance schedules. The Director determines good cause exists 
for modification of a compliance schedule, such as an act of God, 
strike, flood, or materials shortage or other events over which the 
permittee has little or no control and for which there is no reasonably 
available remedy. However, in no case may an NPDES compliance schedule 
be modified to extend beyond an applicable CWA statutory deadline. See 
also Sec. 122.63(c) (minor modifications) and paragraph (a)(14) of this 
section (NPDES innovative technology).
    (5) When the permittee has filed a request for a variance under CWA 
section 301(c), 301(g), 301(h), 301(i), 301(k), or 316(a) or for 
``fundamentally different factors'' within the time specified in Sec. 
122.21 or Sec. 125.27(a).
    (6) 307(a) toxics. When required to incorporate an applicable 307(a) 
toxic effluent standard or prohibition (see Sec. 122.44(b)).
    (7) Reopener. When required by the ``reopener'' conditions in a 
permit, which are established in the permit under Sec. 122.44(b) (for 
CWA toxic effluent limitations and Standards for sewage sludge use or 
disposal, see also Sec. 122.44(c)) or 40 CFR 403.18(e) (Pretreatment 
program).
    (8)(i) Net limits. Upon request of a permittee who qualifies for 
effluent limitations on a net basis under Sec. 122.45(g).
    (ii) When a discharger is no longer eligible for net limitations, as 
provided in Sec. 122.45(g)(1)(ii).
    (9) Pretreatment. As necessary under 40 CFR 403.8(e) (compliance 
schedule for development of pretreatment program).
    (10) Failure to notify. Upon failure of an approved State to notify, 
as required by section 402(b)(3), another State whose waters may be 
affected by a discharge from the approved State.
    (11) Non-limited pollutants. When the level of discharge of any 
pollutant which is not limited in the permit exceeds the level which can 
be achieved by the technology-based treatment requirements appropriate 
to the permittee under Sec. 125.3(c).
    (12) Notification levels. To establish a ``notification level'' as 
provided in Sec. 122.44(f).
    (13) Compliance schedules. To modify a schedule of compliance to 
reflect the time lost during construction of an innovative or 
alternative facility, in the case of a POTW which has received a grant 
under section 202(a)(3) of CWA for 100% of the costs to modify or 
replace facilities constructed with a grant for innovative and 
alternative wastewater technology under section 202(a)(2). In no case 
shall the compliance schedule be modified to extend beyond an applicable 
CWA statutory deadline for compliance.
    (14) For a small MS4, to include an effluent limitation requiring 
implementation of a minimum control measure or measures as specified in 
Sec. 122.34(b) when:
    (i) The permit does not include such measure(s) based upon the 
determination that another entity was responsible for implementation of 
the requirement(s); and
    (ii) The other entity fails to implement measure(s) that satisfy the 
requirement(s).
    (15) To correct technical mistakes, such as errors in calculation, 
or mistaken interpretations of law made in determining permit 
conditions.
    (16) When the discharger has installed the treatment technology 
considered by the permit writer in setting effluent limitations imposed 
under section 402(a)(1) of the CWA and has properly operated and 
maintained the facilities but nevertheless has been unable to achieve 
those effluent limitations. In this case, the limitations in the 
modified permit may reflect the level of pollutant control actually 
achieved (but shall not be less stringent than required by a 
subsequently promulgated effluent limitations guideline).
    (17) Nutrient Management Plans. The incorporation of the terms of a 
CAFO's nutrient management plan into the terms and conditions of a 
general permit whe