[Title 40 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2011 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

                                  Title 40

                           Protection of Environment


________________________

                             Parts 190 to 259

                         Revised as of July 1, 2011

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2011
                    Published by Office of the Federal Register National 
                    Archives and Records Administration as 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........................     483
      Alphabetical List of Agencies Appearing in the CFR......     503
      List of CFR Sections Affected...........................     513

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

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 40 CFR 190.01 refers 
                       to title 40, part 190, 
                       section 01.

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

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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 
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    To determine whether a Code volume has been amended since its 
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative 
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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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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 
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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 
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1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate 
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``[RESERVED]'' TERMINOLOGY

    The term ``[Reserved]'' is used as a place holder within the Code of 
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INCORPORATION BY REFERENCE

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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 
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    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 revision dates of the 50 CFR titles.

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    July 1, 2011.







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                               THIS TITLE

    Title 40--Protection of Environment is composed of thirty-three 
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 87-95, parts 96-99, 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, 2011.

    Chapter I--Environmental Protection Agency appears in all thirty-
three 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, Susannah C. Hurley 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 190 to 259)

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

chapter i--Environmental Protection Agency (Continued)......         190

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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 F--RADIATION PROTECTION PROGRAMS
Part                                                                Page
190             Environmental radiation protection standards 
                    for nuclear power operations............           5
191             Environmental radiation protection standards 
                    for management and disposal of spent 
                    nuclear fuel, high-level and transuranic 
                    radioactive wastes......................           6
192             Health and environmental protection 
                    standards for uranium and thorium mill 
                    tailings................................          17
194             Criteria for the certification and re-
                    certification of the Waste Isolation 
                    Pilot Plant's compliance with the 40 CFR 
                    part 191 disposal regulations...........          36
195             Radon proficiency programs..................          59
197             Public health and environmental radiation 
                    protection standards for Yucca Mountain, 
                    Nevada..................................          62
                 SUBCHAPTER G--NOISE ABATEMENT PROGRAMS
201             Noise emission standards for transportation 
                    equipment; interstate rail carriers.....          71
202             Motor carriers engaged in interstate 
                    commerce................................          84
203             Low-noise-emission products.................          86
204             Noise emission standards for construction 
                    equipment...............................          89
205             Transportation equipment noise emission 
                    controls................................         106
209             Rules of practice governing proceedings 
                    under the Noise Control Act of 1972.....         160
210             Prior notice of citizen suits...............         171
211             Product noise labeling......................         173
                       SUBCHAPTER H--OCEAN DUMPING
220             General.....................................         189
221             Applications for ocean dumping permits under 
                    section 102 of the Act..................         192

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222             Action on ocean dumping permit applications 
                    under section 102 of the Act............         193
223             Contents of permits; revision, revocation or 
                    limitation of ocean dumping permits 
                    under section 104(d) of the Act.........         200
224             Records and reports required of ocean 
                    dumping permittees under section 102 of 
                    the Act.................................         203
225             Corps of Engineers dredged material permits.         204
227             Criteria for the evaluation of permit 
                    applications for ocean dumping of 
                    materials...............................         205
228             Criteria for the management of disposal 
                    sites for ocean dumping.................         216
229             General permits.............................         251
230             Section 404(b)(1) guidelines for 
                    specification of disposal sites for 
                    dredged or fill material................         253
231             Section 404(c) procedures...................         306
232             404 Program definitions; exempt activities 
                    not requiring 404 permits...............         311
233             404 State program regulations...............         317
238             Degradable plastic ring carriers............         340
                       SUBCHAPTER I--SOLID WASTES
239             Requirements for State permit program 
                    determination of adequacy...............         342
240             Guidelines for the thermal processing of 
                    solid wastes............................         350
241             Solid wastes used as fuels or ingredients in 
                    combustion units........................         358
243             Guidelines for the storage and collection of 
                    residential, commercial, and 
                    institutional solid waste...............         362
246             Source separation for materials recovery 
                    guidelines..............................         369
247             Comprehensive procurement guideline for 
                    products containing recovered materials.         378
254             Prior notice of citizen suits...............         385
255             Identification of regions and agencies for 
                    solid waste management..................         387
256             Guidelines for development and 
                    implementation of State solid waste 
                    management plans........................         393
257             Criteria for classification of solid waste 
                    disposal facilities and practices.......         405
258             Criteria for municipal solid waste landfills         428
259             [Reserved]

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               SUBCHAPTER F_RADIATION PROTECTION PROGRAMS





PART 190_ENVIRONMENTAL RADIATION PROTECTION STANDARDS FOR NUCLEAR 
POWER OPERATIONS--Table of Contents



                      Subpart A_General Provisions

Sec.
190.01 Applicability.
190.02 Definitions.

      Subpart B_Environmental Standards for the Uranium Fuel Cycle

190.10 Standards for normal operations.
190.11 Variances for unusual operations.
190.12 Effective date.

    Authority: Atomic Energy Act of 1954, as amended; Reorganization 
Plan No. 3, of 1970.

    Source: 42 FR 2860, Jan. 13, 1977, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 190.01  Applicability.

    The provisions of this part apply to radiation doses received by 
members of the public in the general environment and to radioactive 
materials introduced into the general environment as the result of 
operations which are part of a nuclear fuel cycle.



Sec. 190.02  Definitions.

    (a) Nuclear fuel cycle means the operations defined to be associated 
with the production of electrical power for public use by any fuel cycle 
through utilization of nuclear energy.
    (b) Uranium fuel cycle means the operations of milling of uranium 
ore, chemical conversion of uranium, isotopic enrichment of uranium, 
fabrication of uranium fuel, generation of electricity by a light-water-
cooled nuclear power plant using uranium fuel, and reprocessing of spent 
uranium fuel, to the extent that these directly support the production 
of electrical power for public use utilizing nuclear energy, but 
excludes mining operations, operations at waste disposal sites, 
transporta tion of any radioactive material in sup port of these 
operations, and the reuse of recovered non-uranium special nu clear and 
by-product materials from the cycle.
    (c) General environment means the total terrestrial, atmospheric and 
aquatic environments outside sites upon which any operation which is 
part of a nuclear fuel cycle is conducted.
    (d) Site means the area contained within the boundary of a location 
under the control of persons possessing or using radioactive material on 
which is conducted one or more operations covered by this part.
    (e) Radiation means any or all of the following: Alpha, beta, gamma, 
or X-rays; neutrons; and high-energy electrons, protons, or other atomic 
particles; but not sound or radio waves, nor visible, infrared, or ultra 
violet light.
    (f) Radioactive material means any material which spontaneously 
emits radiation.
    (g) Curie (Ci) means that quantity of radioactive material producing 
37 billion nuclear transformations per second. (One millicurie 
(mCi)=0.001 Ci.)
    (h) Dose equivalent means the product of absorbed dose and 
appropriate factors to account for differences in biological 
effectiveness due to the quality of radiation and its spatial 
distribution in the body. The unit of dose equivalent is the ``rem.'' 
(One millirem (mrem)= 0.001 rem.)
    (i) Organ means any human organ exclusive of the dermis, the 
epidermis, or the cornea.
    (j) Gigawatt-year refers to the quantity of electrical energy 
produced at the busbar of a generating station. A gigawatt is equal to 
one billion watts. A gigawatt-year is equivalent to the amount of energy 
output represented by an average electric power level of one gigawatt 
sustained for one year.
    (k) Member of the public means any individual that can receive a 
radiation dose in the general environment, whether he may or may not 
also be exposed to radiation in an occupation associated with a nuclear 
fuel cycle. However, an individual is not considered a member of the 
public during any

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period in which he is engaged in carrying out any operation which is 
part of a nuclear fuel cycle.
    (l) Regulatory agency means the government agency responsible for 
issuing regulations governing the use of sources of radiation or 
radioactive materials or emissions therefrom and carrying out inspection 
and enforcement activities to assure compliance with such regulations.



      Subpart B_Environmental Standards for the Uranium Fuel Cycle



Sec. 190.10  Standards for normal operations.

    Operations covered by this subpart shall be conducted in such a 
manner as to provide reasonable assurance that:
    (a) The annual dose equivalent does not exceed 25 millirems to the 
whole body, 75 millirems to the thyroid, and 25 millirems to any other 
organ of any member of the public as the result of exposures to planned 
discharges of radioactive materials, radon and its daughters excepted, 
to the general environment from uranium fuel cycle operations and to 
radiation from these operations.
    (b) The total quantity of radioactive materials entering the general 
environment from the entire uranium fuel cycle, per gigawatt-year of 
electrical energy produced by the fuel cycle, contains less than 50,000 
curies of krypton-85, 5 millicuries of iodine-129, and 0.5 millicuries 
combined of plutonium-239 and other alpha-emitting transuranic 
radionuclides with half-lives greater than one year.



Sec. 190.11  Variances for unusual operations.

    The standards specified in Sec. 190.10 may be exceeded if:
    (a) The regulatory agency has granted a variance based upon its 
determination that a temporary and unusual operating condition exists 
and continued operation is in the public interest, and
    (b) Information is promptly made a matter of public record 
delineating the nature of unusual operating conditions, the degree to 
which this operation is expected to result in levels in excess of the 
standards, the basis of the variance, and the schedule for achieving 
conformance with the standards.



Sec. 190.12  Effective date.

    (a) The standards in Sec. 190.10(a) shall be effective December 1, 
1979, except that for doses arising from operations associated with the 
milling of uranium ore the effective date shall be December 1, 1980.
    (b) The standards in Sec. 190.10(b) shall be effective December 1, 
1979, except that the standards for krypton-85 and iodine-129 shall be 
effective January 1, 1983, for any such radioactive materials generated 
by the fission process after these dates.



PART 191_ENVIRONMENTAL RADIATION PROTECTION STANDARDS FOR MANAGEMENT
AND DISPOSAL OF SPENT NUCLEAR FUEL, HIGH-LEVEL AND TRANSURANIC 

RADIOACTIVE WASTES--Table of Contents



      Subpart A_Environmental Standards for Management and Storage

Sec.
191.01 Applicability.
191.02 Definitions.
191.03 Standards.
191.04 Alternative standards.
191.05 Effective date.

             Subpart B_Environmental Standards for Disposal

191.11 Applicability.
191.12 Definitions.
191.13 Containment requirements.
191.14 Assurance requirements.
191.15 Individual protection requirements.
191.16 Alternative provisions for disposal.
191.17 Effective date.

      Subpart C_Environmental Standards for Ground-Water Protection

191.21 Applicability.
191.22 Definitions.
191.23 General provisions.
191.24 Disposal standards.
191.25 Compliance with other Federal regulations.
191.26 Alternative provisions.
191.27 Effective date.

Appendix A to Part 191--Table for Subpart B
Appendix B to Part 191--Calculation of Annual Committed Effective Dose
Appendix C to Part 191--Guidance for Implementation of Subpart B


[[Page 7]]


    Authority: The Atomic Energy Act of 1954, as amended, 42 U.S.C. 
2011-2296; Reorganization Plan No. 3 of 1970, 5 U.S.C. app. 1; the 
Nuclear Waste Policy Act of 1982, as amended, 42 U.S.C. 10101-10270; and 
the Waste Isolation Pilot Plant Land Withdrawal Act, Pub. L. 102-579, 
106 Stat. 4777.

    Source: 50 FR 38084, Sept. 19, 1985, unless otherwise noted.



      Subpart A_Environmental Standards for Management and Storage



Sec. 191.01  Applicability.

    This subpart applies to:
    (a) Radiation doses received by members of the public as a result of 
the management (except for transportation) and storage of spent nuclear 
fuel or high-level or transuranic radioactive wastes at any facility 
regulated by the Nuclear Regulatory Commission or by Agreement States, 
to the extent that such management and storage operations are not 
subject to the provisions of part 190 of title 40; and
    (b) Radiation doses received by members of the public as a result of 
the management and storage of spent nuclear fuel or high-level or 
transuranic wastes at any disposal facility that is operated by the 
Department of Energy and that is not regulated by the Commission or by 
Agreement States.



Sec. 191.02  Definitions.

    Unless otherwise indicated in this subpart, all terms shall have the 
same meaning as in Subpart A of Part 190.
    (a) Agency means the Environmental Protection Agency.
    (b) Administrator means the Administrator of the Environmental 
Protection Agency.
    (c) Commission means the Nuclear Regulatory Commission.
    (d) Department means the Department of Energy.
    (e) NWPA means the Nuclear Waste Policy Act of 1982 (Pub. L. 97-
425).
    (f) Agreement State means any State with which the Commission or the 
Atomic Energy Commission has entered into an effective agreement under 
subsection 274b of the Atomic Energy Act of 1954, as amended (68 Stat. 
919).
    (g) Spent nuclear fuel means fuel that has been withdrawn from a 
nuclear reactor following irradiation, the constituent elements of which 
have not been separated by reprocessing.
    (h) High-level radioactive waste, as used in this part, means high-
level radioactive waste as defined in the Nuclear Waste Policy Act of 
1982 (Pub. L. 97-425).
    (i) Transuranic radioactive waste, as used in this part, means waste 
containing more than 100 nanocuries of alpha-emitting transuranic 
isotopes, with half-lives greater than twenty years, per gram of waste, 
except for: (1) High-level radioactive wastes; (2) wastes that the 
Department has determined, with the concurrence of the Administrator, do 
not need the degree of isolation required by this part; or (3) wastes 
that the Commission has approved for disposal on a case-by-case basis in 
accordance with 10 CFR Part 61.
    (j) Radioactive waste, as used in this part, means the high-level 
and transuranic radioactive waste covered by this part.
    (k) Storage means retention of spent nuclear fuel or radioactive 
wastes with the intent and capability to readily retrieve such fuel or 
waste for subsequent use, processing, or disposal.
    (l) Disposal means permanent isolation of spent nuclear fuel or 
radioactive waste from the accessible environment with no intent of 
recovery, whether or not such isolation permits the recovery of such 
fuel or waste. For example, disposal of waste in a mined geologic 
repository occurs when all of the shafts to the repository are 
backfilled and sealed.
    (m) Management means any activity, operation, or process (except for 
transportation) conducted to prepare spent nuclear fuel or radioactive 
waste for storage or disposal, or the activities associated with placing 
such fuel or waste in a disposal system.
    (n) Site means an area contained within the boundary of a location 
under the effective control of persons possessing or using spent nuclear 
fuel or radioactive waste that are involved in any activity, operation, 
or process covered by this subpart.

[[Page 8]]

    (o) General environment means the total terrestrial, atmospheric, 
and aquatic environments outside sites within which any activity, 
operation, or process associated with the management and storage of 
spent nuclear fuel or radioactive waste is conducted.
    (p) Member of the public means any individual except during the time 
when that individual is a worker engaged in any activity, operation, or 
process that is covered by the Atomic Energy Act of 1954, as amended.
    (q) Critical organ means the most exposed human organ or tissue 
exclusive of the integumentary system (skin) and the cornea.



Sec. 191.03  Standards.

    (a) Management and storage of spent nuclear fuel or high-level or 
transuranic radioactive wastes at all facilities regulated by the 
Commission or by Agreement States shall be conducted in such a manner as 
to provide reasonable assurance that the combined annual dose equivalent 
to any member of the public in the general environment resulting from: 
(1) Discharges of radioactive material and direct radiation from such 
manage ment and storage and (2) all operations covered by Part 190; 
shall not exceed 25 millirems to the whole body, 75 millirems to the 
thyroid, and 25 millirems to any other critical organ.
    (b) Management and storage of spent nuclear fuel or high-level or 
transuranic radioactive wastes at all facilities for the disposal of 
such fuel or waste that are operated by the Department and that are not 
regulated by the Commission or Agreement States shall be conducted in 
such a manner as to provide reasonable assurance that the combined 
annual dose equivalent to any member of the public in the general 
environment resulting from discharges of radioactive material and direct 
radiation from such management and storage shall not exceed 25 millirems 
to the whole body and 75 millirems to any critical organ.



Sec. 191.04  Alternative standards.

    (a) The Administrator may issue alternative standards from those 
standards established in Sec. 191.03(b) for waste management and 
storage activities at facilities that are not regulated by the 
Commission or Agreement States if, upon review of an application for 
such alternative standards:
    (1) The Administrator determines that such alternative standards 
will prevent any member of the public from receiving a continuous 
exposure of more than 100 millirems per year dose equivalent and an 
infrequent exposure of more than 500 millirems dose equivalent in a year 
from all sources, excluding natural background and medical procedures; 
and
    (2) The Administrator promptly makes a matter of public record the 
degree to which continued operation of the facility is expected to 
result in levels in excess of the standards specified in Sec. 
191.03(b).
    (b) An application for alternative standards shall be submitted as 
soon as possible after the Department determines that continued 
operation of a facility will exceed the levels specified in Sec. 
191.03(b) and shall include all information necessary for the 
Administrator to make the determinations called for in Sec. 191.04(a).
    (c) Requests for alternative standards shall be submitted to the 
Administrator, U.S. Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460.

[50 FR 38084, Sept. 19, 1985, as amended at 65 FR 47325, Aug. 2, 2000]



Sec. 191.05  Effective date.

    The standards in this subpart shall be effective on November 18, 
1985.



             Subpart B_Environmental Standards for Disposal



Sec. 191.11  Applicability.

    (a) This subpart applies to:
    (1) Radioactive materials released into the accessible environment 
as a result of the disposal of spent nuclear fuel or high-level or 
transuranic radioactive wastes;
    (2) Radiation doses received by members of the public as a result of 
such disposal; and
    (3) Radioactive contamination of certain sources of ground water in 
the vicinity of disposal systems for such fuel or wastes.

[[Page 9]]

    (b) This subpart does not apply to:
    (1) Disposal directly into the oceans or ocean sediments;
    (2) Wastes disposed of before November 18, 1985; and
    (3) The characterization, licensing, construction, operation, or 
closure of any site required to be characterized under section 113(a) of 
Public Law 97-425, 96 Stat. 2201.

[50 FR 38084, Sept. 19, 1985, as amended at 58 FR 66414, Dec. 20, 1993]



Sec. 191.12  Definitions.

    Unless otherwise indicated in this subpart, all terms shall have the 
same meaning as in subpart A of this part.
    Accessible environment means: (1) The atmosphere; (2) land surfaces; 
(3) surface waters; (4) oceans; and (5) all of the lithosphere that is 
beyond the controlled area.
    Active institutional control means: (1) Controlling access to a 
disposal site by any means other than passive institutional controls; 
(2) performing maintenance operations or remedial actions at a site, (3) 
controlling or cleaning up releases from a site, or (4) monitoring 
parameters related to disposal system performance.
    Annual committed effective dose means the committed effective dose 
resulting from one-year intake of radionuclides released plus the annual 
effective dose caused by direct radiation from facilities or activities 
subject to subparts B and C of this part.
    Aquifer means an underground geological formation, group of 
formations, or part of a formation that is capable of yielding a 
significant amount of water to a well or spring.
    Barrier means any material or structure that prevents or 
substantially delays movement of water or radionuclides toward the 
accessible environment. For example, a barrier may be a geologic 
structure, a canister, a waste form with physical and chemical 
characteristics that significantly decrease the mobility of 
radionuclides, or a material placed over and around waste, provided that 
the material or structure substantially delays movement of water or 
radionuclides.
    Controlled area means: (1) A surface location, to be identified by 
passive institutional controls, that encompasses no more than 100 square 
kilometers and extends horizontally no more than five kilometers in any 
direction from the outer boundary of the original location of the 
radioactive wastes in a disposal system; and (2) the subsurface 
underlying such a surface location.
    Disposal system means any combination of engineered and natural 
barriers that isolate spent nuclear fuel or radioactive waste after 
disposal.
    Dose equivalent means the product of absorbed dose and appropriate 
factors to account for differences in biological effectiveness due to 
the quality of radiation and its spatial distribution in the body; the 
unit of dose equivalent is the ``rem'' (``sievert'' in SI units).
    Effective dose means the sum over specified tissues of the products 
of the dose equivalent received following an exposure of, or an intake 
of radionuclides into, specified tissues of the body, multiplied by 
appropriate weighting factors. This allows the various tissue-specific 
health risks to be summed into an overall health risk. The method used 
to calculate effective dose is described in appendix B of this part.
    Ground water means water below the land surface in a zone of 
saturation.
    Heavy metal means all uranium, plutonium, or thorium placed into a 
nuclear reactor.
    Implementing agency means:
    (1) The Commission for facilities licensed by the Commission;
    (2) The Agency for those implementation responsibilities for the 
Waste Isolation Pilot Plant, under this part, given to the Agency by the 
Waste Isolation Pilot Plant Land Withdrawal Act (Pub. L. 102-579, 106 
Stat. 4777) which, for the purposes of this part, are:
    (i) Determinations by the Agency that the Waste Isolation Pilot 
Plant is in compliance with subpart A of this part;
    (ii) Issuance of criteria for the certifications of compliance with 
subparts B and C of this part of the Waste Isolation Pilot Plant's 
compliance with subparts B and C of this part;
    (iii) Certifications of compliance with subparts B and C of this 
part of

[[Page 10]]

the Waste Isolation Pilot Plant's compliance with subparts B and C of 
this part;
    (iv) If the initial certification is made, periodic recertification 
of the Waste Isolation Pilot Plant's continued compliance with subparts 
B and C of this part;
    (v) Review and comment on performance assessment reports of the 
Waste Isolation Pilot Plant; and
    (vi) Concurrence by the Agency with the Department's determination 
under Sec. 191.02(i) that certain wastes do not need the degree of 
isolation required by subparts B and C of this part; and
    (3) The Department of Energy for any other disposal facility and all 
other implementation responsibilities for the Waste Isolation Pilot 
Plant, under this part, not given to the Agency.
    International System of Units is the version of the metric system 
which has been established by the International Bureau of Weights and 
Measures and is administered in the United States by the National 
Institute of Standards and Technology. The abbreviation for this system 
is ``SI.''
    Lithosphere means the solid part of the Earth below the surface, 
including any ground water contained within it.
    Passive institutional control means: (1) Permanent markers placed at 
a disposal site, (2) public records and archives, (3) government 
ownership and regulations regarding land or resource use, and (4) other 
methods of preserving knowledge about the location, design, and contents 
of a disposal system.
    Performance assessment means an analysis that: (1) Identifies the 
processes and events that might affect the disposal system; (2) examines 
the effects of these processes and events on the performance of the 
disposal system; and (3) estimates the cumulative releases of 
radionuclides, considering the associated uncertainties, caused by all 
significant processes and events. These estimates shall be incorporated 
into an overall probability distribution of cumulative release to the 
extent practicable.
    Radioactive material means matter composed of or containing 
radionuclides, with radiological half-lives greater than 20 years, 
subject to the Atomic Energy Act of 1954, as amended.
    SI unit means a unit of measure in the International System of 
Units.
    Sievert is the SI unit of effective dose and is equal to 100 rem or 
one joule per kilogram. The abbreviation is ``Sv.''
    Undisturbed performance means the predicted behavior of a disposal 
system, including consideration of the uncertainties in predicted 
behavior, if the disposal system is not disrupted by human intrusion or 
the occurrence of unlikely natural events.
    Waste, as used in this subpart, means any spent nuclear fuel or 
radioactive waste isolated in a disposal system.
    Waste form means the materials comprising the radioactive components 
of waste and any encapsulating or stabilizing matrix.

[50 FR 38084, Sept. 19, 1985, as amended at 58 FR 66414, Dec. 20, 1993]



Sec. 191.13  Containment requirements.

    (a) Disposal systems for spent nuclear fuel or high-level or 
transuranic radioactive wastes shall be designed to provide a reasonable 
expectation, based upon performance assessments, that the cumulative 
releases of radionuclides to the accessible environment for 10,000 years 
after disposal from all significant processes and events that may affect 
the disposal system shall:
    (1) Have a likelihood of less than one chance in 10 of exceeding the 
quantities calculated according to Table 1 (appendix A); and
    (2) Have a likelihood of less than one chance in 1,000 of exceeding 
ten times the quantities calculated according to Table 1 (appendix A).
    (b) Performance assessments need not provide complete assurance that 
the requirements of Sec. 191.13(a) will be met. Because of the long 
time period involved and the nature of the events and processes of 
interest, there will inevitably be substantial uncertainties in 
projecting disposal system performance. Proof of the future performance 
of a disposal system is not to be had in the ordinary sense of the word 
in situations that deal with much shorter time frames. Instead, what is 
required is a reasonable expectation, on the basis of the record before 
the implementing

[[Page 11]]

agency, that compliance with Sec. 191.13 (a) will be achieved.



Sec. 191.14  Assurance requirements.

    To provide the confidence needed for long-term compliance with the 
requirements of Sec. 191.13, disposal of spent nuclear fuel or high-
level or transuranic wastes shall be conducted in accordance with the 
following provisions, except that these provisions do not apply to 
facilities regulated by the Commission (see 10 CFR Part 60 for 
comparable provisions applicable to facilities regulated by the 
Commission):
    (a) Active institutional controls over disposal sites should be 
maintained for as long a period of time as is practicable after 
disposal; however, performance assessments that assess isolation of the 
wastes from the accessible environment shall not consider any 
contributions from active institutional controls for more than 100 years 
after disposal.
    (b) Disposal systems shall be monitored after disposal to detect 
substantial and detrimental deviations from expected performance. This 
monitoring shall be done with techniques that do not jeopardize the 
isolation of the wastes and shall be conducted until there are no 
significant concerns to be addressed by further monitoring.
    (c) Disposal sites shall be designated by the most permanent 
markers, records, and other passive institutional controls practicable 
to indicate the dangers of the wastes and their location.
    (d) Disposal systems shall use different types of barriers to 
isolate the wastes from the accessible environment. Both engineered and 
natural barriers shall be included.
    (e) Places where there has been mining for resources, or where there 
is a reasonable expectation of exploration for scarce or easily 
accessible resources, or where there is a significant concentration of 
any material that is not widely available from other sources, should be 
avoided in selecting disposal sites. Resources to be considered shall 
include minerals, petroleum or natural gas, valuable geologic 
formations, and ground waters that are either irreplaceable because 
there is no reasonable alternative source of drinking water available 
for substantial populations or that are vital to the preservation of 
unique and sensitive eco systems. Such places shall not be used for 
disposal of the wastes covered by this part unless the favorable char 
acter is tics of such places com pen sate for their greater likelihood 
of being dis turbed in the future.
    (f) Disposal systems shall be selected so that removal of most of 
the wastes is not precluded for a reasonable period of time after 
disposal.



Sec. 191.15  Individual protection requirements.

    (a) Disposal systems for waste and any associated radioactive 
material shall be designed to provide a reasonable expectation that, for 
10,000 years after disposal, undisturbed performance of the disposal 
system shall not cause the annual committed effective dose, received 
through all potential pathways from the disposal system, to any member 
of the public in the accessible environment, to exceed 15 millirems (150 
microsieverts).
    (b) Annual committed effective doses shall be calculated in 
accordance with appendix B of this part.
    (c) Compliance assessments need not provide complete assurance that 
the requirements of paragraph (a) of this section will be met. Because 
of the long time period involved and the nature of the processes and 
events of interest, there will inevitably be substantial uncertainties 
in projecting disposal system performance. Proof of the future 
performance of a disposal system is not to be had in the ordinary sense 
of the word in situations that deal with much shorter time frames. 
Instead, what is required is a reasonable expectation, on the basis of 
the record before the implementing agency, that compliance with 
paragraph (a) of this section will be achieved.
    (d) Compliance with the provisions in this section does not negate 
the necessity to comply with any other applicable Federal regulations or 
requirements.
    (e) The standards in this section shall be effective on January 19, 
1994.

[58 FR 66414, Dec. 20, 1993]

[[Page 12]]



Sec. 191.16  Alternative provisions for disposal.

    The Administrator may, by rule, substitute for any of the provisions 
of subpart B alternative provisions chosen after:
    (a) The alternative provisions have been proposed for public comment 
in the Federal Register together with information describing the costs, 
risks, and benefits of disposal in accordance with the alternative 
provisions and the reasons why compliance with the existing provisions 
of Subpart B appears inappropriate;
    (b) A public comment period of at least 90 days has been completed, 
during which an opportunity for public hearings in affected areas of the 
country has been provided; and
    (c) The public comments received have been fully considered in 
developing the final version of such alternative provisions.

[50 FR 38084, Sept. 19, 1985. Redesignated at 58 FR 66414, Dec. 20, 
1993]



Sec. 191.17  Effective date.

    The standards in this subpart shall be effective on November 18, 
1985.

[50 FR 38084, Sept. 19, 1985; 50 FR 40003, Oct. 1, 1985. Redesignated at 
58 FR 66414, Dec. 20, 1993]



      Subpart C_Environmental Standards for Ground-Water Protection

    Source: 58 FR 66415, Dec. 20, 1993, unless otherwise noted.



Sec. 191.21  Applicability.

    (a) This subpart applies to:
    (1) Radiation doses received by members of the public as a result of 
activities subject to subpart B of this part; and
    (2) Radioactive contamination of underground sources of drinking 
water in the accessible environment as a result of such activities.
    (b) This subpart does not apply to:
    (1) Disposal directly into the oceans or ocean sediments;
    (2) Wastes disposed of before the effective date of this subpart; 
and
    (3) The characterization, licensing, construction, operation, or 
closure of any site required to be characterized under section 113(a) of 
Public Law 97-425, 96 Stat. 2201.



Sec. 191.22  Definitions.

    Unless otherwise indicated in this subpart, all terms have the same 
meaning as in subparts A and B of this part.
    Public water system means a system for the provision to the public 
of piped water for human consumption, if such system has at least 
fifteen service connections or regularly serves at least twenty-five 
individuals. Such term includes:
    (1) Any collection, treatment, storage, and distribution facilities 
under control of the operator of such system and used primarily in 
connection with such system; and
    (2) Any collection or pretreatment storage facilities not under such 
control which are used primarily in connection with such system.
    Total dissolved solids means the total dissolved (filterable) solids 
in water as determined by use of the method specified in 40 CFR part 
136.
    Underground source of drinking water means an aquifer or its portion 
which:
    (1) Supplies any public water system; or
    (2) Contains a sufficient quantity of ground water to supply a 
public water system; and
    (i) Currently supplies drinking water for human consumption; or
    (ii) Contains fewer than 10,000 milligrams of total dissolved solids 
per liter.



Sec. 191.23  General provisions.

    (a) Determination of compliance with this subpart shall be based 
upon underground sources of drinking water which have been identified on 
the date the implementing agency determines compliance with subpart C of 
this part.
    (b) [Reserved]



Sec. 191.24  Disposal standards.

    (a) Disposal systems.
    (1) General. Disposal systems for waste and any associated 
radioactive material shall be designed to provide a reasonable 
expectation that 10,000 years of undisturbed performance after disposal 
shall not cause the levels of radioactivity in any underground

[[Page 13]]

source of drinking water, in the accessible environment, to exceed the 
limits specified in 40 CFR part 141 as they exist on January 19, 1994.
    (2) Disposal systems above or within a formation which within one-
quarter (\1/4\) mile contains an underground source of drinking water. 
[Reserved]
    (b) Compliance assessments need not provide complete assurance that 
the requirements of paragraph (a) of this section will be met. Because 
of the long time period involved and the nature of the processes and 
events of interest, there will inevitably be substantial uncertainties 
in projecting disposal system performance. Proof of the future 
performance of a disposal system is not to be had in the ordinary sense 
of the word in situations that deal with much shorter time frames. 
Instead, what is required is a reasonable expectation, on the basis of 
the record before the implementing agency, that compliance with 
paragraph (a) of this section will be achieved.



Sec. 191.25  Compliance with other Federal regulations.

    Compliance with the provisions in this subpart does not negate the 
necessity to comply with any other applicable Federal regulations or 
requirements.



Sec. 191.26  Alternative provisions.

    The Administrator may, by rule, substitute for any of the provisions 
of this subpart alternative provisions chosen after:
    (a) The alternative provisions have been proposed for public comment 
in the Federal Register together with information describing the costs, 
risks, and benefits of disposal in accordance with the alternative 
provisions and the reasons why compliance with the existing provisions 
of this subpart appears inappropriate;
    (b) A public comment period of at least 90 days has been completed, 
during which an opportunity for public hearings in affected areas of the 
country has been provided; and
    (c) The public comments received have been fully considered in 
developing the final version of such alternative provisions.



Sec. 191.27  Effective date.

    The standards in this subpart shall be effective on January 19, 
1994.



            Sec. Appendix A to Part 191--Table for Subpart B

          Table 1--Release Limits for Containment Requirements
   [Cumulative releases to the accessible environment for 10,000 years
                             after disposal]
------------------------------------------------------------------------
                                                                Release
                                                               limit per
                                                                 1,000
                                                                MTHM or
                                                                 other
                         Radionuclide                           unit of
                                                                 waste
                                                                  (see
                                                                 notes)
                                                                (curies)
------------------------------------------------------------------------
Americium-241 or -243........................................        100
Carbon-14....................................................        100
Cesium-135 or -137...........................................      1,000
Iodine-129...................................................        100
Neptunium-237................................................        100
Plutonium-238, -239, -240, or -242...........................        100
Radium-226...................................................        100
Strontium-90.................................................      1,000
Technetium-99................................................     10,000
Thorium-230 or -232..........................................         10
Tin-126......................................................      1,000
Uranium-233, -234, -235, -236, or -238.......................        100
Any other alpha-emitting radionuclide with a half-life               100
 greater than 20 years.......................................
Any other radionuclide with a half-life greater than 20 years      1,000
 that does not emit alpha particles..........................
------------------------------------------------------------------------

                         Application of Table 1

    Note 1: Units of Waste. The Release Limits in Table 1 apply to the 
amount of wastes in any one of the following:
    (a) An amount of spent nuclear fuel containing 1,000 metric tons of 
heavy metal (MTHM) exposed to a burnup between 25,000 megawatt-days per 
metric ton of heavy metal (MWd/MTHM) and 40,000 MWd/MTHM;
    (b) The high-level radioactive wastes generated from reprocessing 
each 1,000 MTHM exposed to a burnup between 25,000 MWd/MTHM and 40,000 
MWd/MTHM;
    (c) Each 100,000,000 curies of gamma or beta-emitting radionuclides 
with half-lives greater than 20 years but less than 100 years (for use 
as discussed in Note 5 or with materials that are identified by the 
Commission as high-level radioactive waste in accordance with part B of 
the definition of high-level waste in the NWPA);
    (d) Each 1,000,000 curies of other radionuclides (i.e., gamma or 
beta-emitters with half-lives greater than 100 years or any alpha-
emitters with half-lives greater than 20 years) (for use as discussed in 
Note 5 or with materials that are identified by the Commission as high-
level radioactive waste in accordance with part B of the definition of 
high-level waste in the NWPA); or

[[Page 14]]

    (e) An amount of transuranic (TRU) wastes containing one million 
curies of alpha-emitting transuranic radionuclides with half-lives 
greater than 20 years.
    Note 2: Release Limits for Specific Disposal Systems. To develop 
Release Limits for a particular disposal system, the quantities in Table 
1 shall be adjusted for the amount of waste included in the disposal 
system compared to the various units of waste defined in Note 1. For 
example:
    (a) If a particular disposal system contained the high-level wastes 
from 50,000 MTHM, the Release Limits for that system would be the 
quantities in Table 1 multiplied by 50 (50,000 MTHM divided by 1,000 
MTHM).
    (b) If a particular disposal system contained three million curies 
of alpha-emitting transuranic wastes, the Release Limits for that system 
would be the quantities in Table 1 multiplied by three (three million 
curies divided by one million curies).
    (c) If a particular disposal system contained both the high-level 
wastes from 50,000 MTHM and 5 million curies of alpha-emitting 
transuranic wastes, the Release Limits for that system would be the 
quantities in Table 1 multiplied by 55:
[GRAPHIC] [TIFF OMITTED] TC11NO91.000

    Note 3: Adjustments for Reactor Fuels with Different Burnup. For 
disposal systems containing reactor fuels (or the high-level wastes from 
reactor fuels) exposed to an average burnup of less than 25,000 MWd/MTHM 
or greater than 40,000 MWd/MTHM, the units of waste defined in (a) and 
(b) of Note 1 shall be adjusted. The unit shall be multiplied by the 
ratio of 30,000 MWd/MTHM divided by the fuel's actual average burnup, 
except that a value of 5,000 MWd/MTHM may be used when the average fuel 
burnup is below 5,000 MWd/MTHM and a value of 100,000 MWd/MTHM shall be 
used when the average fuel burnup is above 100,000 MWd/MTHM. This 
adjusted unit of waste shall then be used in determining the Release 
Limits for the disposal system.
    For example, if a particular disposal system contained only high-
level wastes with an average burnup of 3,000 MWd/MTHM, the unit of waste 
for that disposal system would be:
[GRAPHIC] [TIFF OMITTED] TC11NO91.001

    If that disposal system contained the high-level wastes from 60,000 
MTHM (with an average burnup of 3,000 MWd/MTHM), then the Release Limits 
for that system would be the quantities in Table 1 multiplied by ten:
[GRAPHIC] [TIFF OMITTED] TC11NO91.002

which is the same as:
[GRAPHIC] [TIFF OMITTED] TC11NO91.003

    Note 4: Treatment of Fractionated High-Level Wastes. In some cases, 
a high-level waste stream from reprocessing spent nuclear fuel may have 
been (or will be) separated into two or more high-level waste components 
destined for different disposal systems. In such cases, the implementing 
agency may allocate the Release Limit multiplier (based upon the 
original MTHM and the average fuel burnup of the high-level waste 
stream) among the various disposal systems as it chooses, provided that 
the total Release Limit multiplier used for that waste stream at all of 
its disposal systems may not exceed the Release Limit multiplier that 
would be used if the entire waste stream were disposed of in one 
disposal system.
    Note 5: Treatment of Wastes with Poorly Known Burnups or Original 
MTHM. In some cases, the records associated with particular high-level 
waste streams may not be adequate to accurately determine the original 
metric tons of heavy metal in the reactor fuel that created the waste, 
or to determine the average burnup that the fuel was exposed to. If the 
uncertainties are such that the original amount of heavy metal or the 
average fuel burnup for particular high-level waste streams cannot be 
quantified, the units of waste derived from (a) and (b) of Note 1 shall 
no longer be used. Instead, the units of waste defined in (c) and (d) of 
Note 1 shall be used for such high-level waste streams. If the 
uncertainties in such information allow a range of values to be 
associated with the original amount of heavy metal or the average fuel 
burnup, then the calculations described in previous Notes will be 
conducted using the values that result in the smallest Release Limits, 
except that the Release Limits need not be smaller than those that would 
be calculated using the units of waste defined in (c) and (d) of Note 1.
    Note 6: Uses of Release Limits to Determine Compliance with Sec. 
191.13 Once release limits for a particular disposal system have been 
determined in accordance with Notes 1 through 5, these release limits 
shall be used to determine compliance with the requirements of Sec. 
191.13 as follows. In cases where a mixture of radionuclides is 
projected to be released to the accessible environment, the limiting 
values shall be determined as follows: For each radionuclide in the 
mixture, determine the ratio between the cumulative release quantity 
projected over 10,000 years

[[Page 15]]

and the limit for that radionuclide as determined from Table 1 and Notes 
1 through 5. The sum of such ratios for all the radionuclides in the 
mixture may not exceed one with regard to Sec. 191.13(a)(1) and may not 
exceed ten with regard to Sec. 191.13(a)(2).
    For example, if radionuclides A, B, and C are projected to be 
released in amounts Qa, Qb, and Qc, and 
if the applicable Release Limits are RLa, RLb, and 
RLc, then the cumulative releases over 10,000 years shall be 
limited so that the following relationship exists:
[GRAPHIC] [TIFF OMITTED] TC11NO91.004


[50 FR 38084, Sept. 19, 1985, as amended at 58 FR 66415, Dec. 20, 1993]



 Sec. Appendix B to Part 191--Calculation of Annual Committed Effective 
                                  Dose

                           I. Equivalent Dose

    The calculation of the committed effective dose (CED) begins with 
the determination of the equivalent dose, HT, to a tissue or 
organ, T, listed in Table B.2 below by using the equation:
[GRAPHIC] [TIFF OMITTED] TR20DE93.009

where DT, R is the absorbed dose in rads (one gray, an SI 
unit, equals 100 rads) averaged over the tissue or organ, T, due to 
radiation type, R, and wR is the radiation weighting factor 
which is given in Table B.1 below. The unit of equivalent dose is the 
rem (sievert, in SI units).

              Table B.1--Radiation Weighting Factors, wR\1\
------------------------------------------------------------------------
                                                                    wR
               Radiation type and energy range \2\                 value
------------------------------------------------------------------------
Photons, all energies...........................................       1
Electrons and muons, all energies...............................       1
Neutrons, energy < 10 keV.......................................       5
          10 keV to 100 keV.....................................      10
          100 keV to 2 MeV...........................      20
          2 MeV to 20 MeV............................      10
          20 MeV.....................................       5
Protons, other than recoil protons, 2 MeV............       5
Alpha particles, fission fragments, heavy nuclei................     20
------------------------------------------------------------------------
\1\ All values relate to the radiation incident on the body or, for
  internal sources, emitted from the source.
\2\ See paragraph A14 in ICRP Publication 60 for the choice of values
  for other radiation types and energies not in the table.

                           II. Effective Dose

    The next step is the calculation of the effective dose, E. The 
probability of occurrence of a stochastic effect in a tissue or organ is 
assumed to be proportional to the equivalent dose in the tissue or 
organ. The constant of proportionality differs for the various tissues 
of the body, but in assessing health detriment the total risk is 
required. This is taken into account using the tissue weighting factors, 
wT in Table B.2, which represent the proportion of the 
stochastic risk resulting from irradiation of the tissue or organ to the 
total risk when the whole body is irradiated uniformly and HT 
is the equivalent dose in the tissue or organ, T, in the equation:
[GRAPHIC] [TIFF OMITTED] TR20DE93.010


               Table B.2--Tissue Weighting Factors, wT \1\
------------------------------------------------------------------------
                     Tissue or organ                         wT value
------------------------------------------------------------------------
Gonads..................................................            0.25
Breast..................................................            0.15
Red bone marrow.........................................            0.12
Lung....................................................            0.12
Thyroid.................................................            0.03
Bone surfaces...........................................            0.03
Remainder...............................................       \2\ 0.30
------------------------------------------------------------------------
\1\ The values are considered to be appropriate for protection for
  individuals of both sexes and all ages.
\2\ For purposes of calculation, the remainder is comprised of the five
  tissues or organs not specifically listed in Table B.2 that receive
  the highest dose equivalents; a weighting factor of 0.06 is applied to
  each of them, including the various sections of the gastrointestinal
  tract which are treated as separate organs. This covers all tissues
  and organs except the hands and forearms, the feet and ankles, the
  skin and the lens of the eye. The excepted tissues and organs should
  be excluded from the computation of HE.

          III. Annual Committed Tissue or Organ Equivalent Dose

    For internal irradiation from incorporated radionuclides, the total 
absorbed dose will be spread out in time, being gradually delivered as 
the radionuclide decays. The time distribution of the absorbed dose rate 
will vary with the radionuclide, its form, the mode of intake and the 
tissue within which it is incorporated. To take account of this 
distribution the quantity committed equivalent dose, H[Tau]([tau]) where 
is the integration time in years following an intake over any particular 
year, is used and is the integral over time of the equivalent dose rate 
in a particular tissue or organ that will be received by an individual 
following an intake of radioactive material into the body. The time 
period, [tau], is taken as 50 years as an average time of exposure 
following intake:
[GRAPHIC] [TIFF OMITTED] TR20DE93.011

for a single intake of activity at time t0 where 
HT(t) is the relevant equivalent-dose rate in a tissue or 
organ at time t. For the purposes of this part, the previously mentioned 
single intake may be considered to be an annual intake.

[[Page 16]]

                   IV. Annual Committed Effective Dose

    If the committed equivalent doses to the individual tissues or 
organs resulting from an annual intake are multiplied by the appropriate 
weighting factors, wT, and then summed, the result will be 
the annual committed effective dose, E([tau]):
[GRAPHIC] [TIFF OMITTED] TR20DE93.012


[58 FR 66415, Dec. 20, 1993]



  Sec. Appendix C to Part 191--Guidance for Implementation of Subpart B

    [Note: The supplemental information in this appendix is not an 
integral part of 40 CFR part 191. Therefore, the implementing agencies 
are not bound to follow this guidance. However, it is included because 
it describes the Agency's assumptions regarding the implementation of 
subpart B. This appendix will appear in the Code of Federal 
Regulations.]

    The Agency believes that the implementing agencies must determine 
compliance with Sec. Sec. 191.13, 191.15, and 191.16 of subpart B by 
evaluating long-term predictions of disposal system performance. 
Determining compliance with Sec. 191.13 will also involve predicting 
the likelihood of events and processes that may disturb the disposal 
system. In making these various predictions, it will be appropriate for 
the implementing agencies to make use of rather complex computational 
models, analytical theories, and prevalent expert judgment relevant to 
the numerical predictions. Substantial uncertainties are likely to be 
encountered in making these predictions. In fact, sole reliance on these 
numerical predictions to determine compliance may not be appropriate; 
the implementing agencies may choose to supplement such predictions with 
qualitative judgments as well. Because the procedures for determining 
compliance with subpart B have not been formulated and tested yet, this 
appendix to the rule indicates the Agency's assumptions regarding 
certain issues that may arise when implementing Sec. Sec. 191.13, 
191.15, and 191.16. Most of this guidance applies to any type of 
disposal system for the wastes covered by this rule. However, several 
sections apply only to disposal in mined geologic repositories and would 
be inappropriate for other types of disposal systems.
    Consideration of Total Disposal System. When predicting disposal 
system performance, the Agency assumes that reasonable projections of 
the protection expected from all of the engineered and natural barriers 
of a disposal system will be considered. Portions of the disposal system 
should not be disregarded, even if projected performance is uncertain, 
except for portions of the system that make negligible contributions to 
the overall isolation provided by the disposal system.
    Scope of Performance Assessments. Section 191.13 requires the 
implementing agencies to evaluate compliance through performance 
assessments as defined in Sec. 191.12(q). The Agency assumes that such 
performance assessments need not consider categories of events or 
processes that are estimated to have less than one chance in 10,000 of 
occurring over 10,000 years. Furthermore, the performance assessments 
need not evaluate in detail the releases from all events and processes 
estimated to have a greater likelihood of occurrence. Some of these 
events and processes may be omitted from the performance assessments if 
there is a reasonable expectation that the remaining probability 
distribution of cumulative releases would not be significantly changed 
by such omissions.
    Compliance with Sec. 191.13. The Agency assumes that, whenever 
practicable, the implementing agency will assemble all of the results of 
the performance assessments to determine compliance with Sec. 191.13 
into a ``complementary cumulative distribution function'' that indicates 
the probability of exceeding various levels of cumulative release. When 
the uncertainties in parameters are considered in a performance 
assessment, the effects of the uncertainties considered can be 
incorporated into a single such distribution function for each disposal 
system considered. The Agency assumes that a disposal system can be 
considered to be in compliance with Sec. 191.13 if this single 
distribution function meets the requirements of Sec. 191.13(a).
    Compliance with Sec. Sec. 191.15 and 191.16. When the uncertainties 
in undisturbed performance of a disposal system are considered, the 
implementing agencies need not require that a very large percentage of 
the range of estimated radiation exposures or radionuclide 
concentrations fall below limits established in Sec. Sec. 191.15 and 
191.16, respectively. The Agency assumes that compliance can be 
determined based upon ``best estimate'' predictions (e.g., the mean or 
the median of the appropriate distribution, whichever is higher).
    Institutional Controls. To comply with Sec. 191.14(a), the 
implementing agency will assume that none of the active institutional 
controls prevent or reduce radionuclide releases for more than 100 years 
after disposal. However, the Federal Government is committed to 
retaining ownership of all disposal sites for spent nuclear fuel and 
high-level and transuranic radioactive wastes and will establish 
appropriate markers and records, consistent with Sec. 191.14(c). The 
Agency assumes that, as long as such passive institutional controls 
endure and are understood, they: (1) Can be effective in deterring 
systematic or persistent exploitation of these

[[Page 17]]

disposal sites; and (2) can reduce the likelihood of inadvertent, 
intermittent human intrusion to a degree to be determined by the 
implementing agency. However, the Agency believes that passive 
institutional controls can never be assumed to eliminate the chance of 
inadvertent and intermittent human intrusion into these disposal sites.
    Consideration of Inadvertent Human Intrusion into Geologic 
Repositories. The most speculative potential disruptions of a mined 
geologic repository are those associated with inadvertent human 
intrusion. Some types of intrusion would have virtually no effect on a 
repository's containment of waste. On the other hand, it is possible to 
conceive of intrusions (involving widespread societal loss of knowledge 
regarding radioactive wastes) that could result in major disruptions 
that no reasonable repository selection or design precautions could 
alleviate. The Agency believes that the most productive consideration of 
inadvertent intrusion concerns those realistic possibilities that may be 
usefully mitigated by repository design, site selection, or use of 
passive controls (although passive institutional controls should not be 
assumed to completely rule out the possibility of intrusion). Therefore, 
inadvertent and intermittent intrusion by exploratory drilling for 
resources (other than any provided by the disposal system itself) can be 
the most severe intrusion scenario assumed by the implementing agencies. 
Furthermore, the implementing agencies can assume that passive 
institutional controls or the intruders' own exploratory procedures are 
adequate for the intruders to soon detect, or be warned of, the 
incompatibility of the area with their activities.
    Frequency and Severity of Inadvertent Human Intrusion into Geologic 
Repositories. The implementing agencies should consider the effects of 
each particular disposal system's site, design, and passive 
institutional controls in judging the likelihood and consequences of 
such inadvertent exploratory drilling. However, the Agency assumes that 
the likelihood of such inadvertent and intermittent drilling need not be 
taken to be greater than 30 boreholes per square kilometer of repository 
area per 10,000 years for geologic repositories in proximity to 
sedimentary rock formations, or more than 3 boreholes per square 
kilometer per 10,000 years for repositories in other geologic 
formations. Furthermore, the Agency assumes that the consequences of 
such inadvertent drilling need not be assumed to be more severe than: 
(1) Direct release to the land surface of all the ground water in the 
repository horizon that would promptly flow through the newly created 
borehole to the surface due to natural lithostatic pressure--or (if 
pumping would be required to raise water to the surface) release of 200 
cubic meters of ground water pumped to the surface if that much water is 
readily available to be pumped; and (2) creation of a ground water flow 
path with a permeability typical of a borehole filled by the soil or 
gravel that would normally settle into an open hole over time--not the 
permeability of a carefully sealed borehole.

[50 FR 38084, Sept. 19, 1985. Redesignated and amended at 58 FR 66415, 
Dec. 20, 1993]



PART 192_HEALTH AND ENVIRONMENTAL PROTECTION STANDARDS FOR URANIUM 
AND THORIUM MILL TAILINGS--Table of Contents



 Subpart A_Standards for the Control of Residual Radioactive Materials 
                 from Inactive Uranium Processing Sites

Sec.
192.00 Applicability.
192.01 Definitions.
192.02 Standards.
192.03 Monitoring.
192.04 Corrective action.

Table 1 to Subpart A--Maximum Concentration of Constituents for 
          Groundwater Protection

Subpart B_Standards for Cleanup of Land and Buildings Contaminated with 
  Residual Radioactive Materials from Inactive Uranium Processing Sites

192.10 Applicability.
192.11 Definitions.
192.12 Standards.

                        Subpart C_Implementation

192.20 Guidance for implementation.
192.21 Criteria for applying supplemental standards.
192.22 Supplemental standards.
192.23 Effective date.

   Subpart D_Standards for Management of Uranium Byproduct Materials 
   Pursuant to Section 84 of the Atomic Energy Act of 1954, as Amended

192.30 Applicability.
192.31 Definitions and cross-references.
192.32 Standards.
192.33 Corrective action programs.
192.34 Effective date.

Table A to Subpart D

   Subpart E_Standards for Management of Thorium Byproduct Materials 
   Pursuant to Section 84 of the Atomic Energy Act of 1954, as Amended

192.40 Applicability.

[[Page 18]]

192.41 Provisions.
192.42 Substitute provisions.
192.43 Effective date.

Appendix I to Part 192--Listed Constituents

    Authority: Sec. 275 of the Atomic Energy Act of 1954, 42 U.S.C. 
2022, as added by the Uranium Mill Tailings Radiation Control Act of 
1978, Pub. L. 95-604, as amended.

    Source: 48 FR 602, Jan. 5, 1983, unless otherwise noted.



 Subpart A_Standards for the Control of Residual Radioactive Materials 
                 from Inactive Uranium Processing Sites



Sec. 192.00  Applicability.

    This subpart applies to the control of residual radioactive material 
at designated processing or depository sites under section 108 of the 
Uranium Mill Tailings Radiation Control Act of 1978 (henceforth 
designated ``the Act''), and to restoration of such sites following any 
use of subsurface minerals under section 104(h) of the Act.



Sec. 192.01  Definitions.

    (a) Residual radioactive material means:
    (1) Waste (which the Secretary determines to be radioactive) in the 
form of tailings resulting from the processing of ores for the 
extraction of uranium and other valuable constituents of the ores; and
    (2) Other wastes (which the Secretary determines to be radioactive) 
at a processing site which relate to such processing, including any 
residual stock of unprocessed ores or low-grade materials.
    (b) Remedial action means any action performed under section 108 of 
the Act.
    (c) Control means any remedial action intended to stabilize, inhibit 
future misuse of, or reduce emissions or effluents from residual 
radioactive materials.
    (d) Disposal site means the region within the smallest perimeter of 
residual radioactive material (excluding cover materials) following 
completion of control activities.
    (e) Depository site means a site (other than a processing site) 
selected under Section 104(b) or 105(b) of the Act.
    (f) Curie (Ci) means the amount of radioactive material that 
produces 37 billion nuclear transformation per second. One picocurie 
(pCi) = 10 -12 Ci.
    (g) Act means the Uranium Mill Tailings Radiation Control Act of 
1978, as amended.
    (h) Administrator means the Administrator of the Environmental 
Protection Agency.
    (i) Secretary means the Secretary of Energy.
    (j) Commission means the Nuclear Regulatory Commission.
    (k) Indian tribe means any tribe, band, clan, group, pueblo, or 
community of Indians recognized as eligible for services provided by the 
Secretary of the Interior to Indians.
    (l) Processing site means:
    (1) Any site, including the mill, designated by the Secretary under 
Section 102(a)(1) of the Act; and
    (2) Any other real property or improvement thereon which is in the 
vicinity of such site, and is determined by the Secretary, in 
consultation with the Commission, to be contaminated with residual 
radioactive materials derived from such site.
    (m) Tailings means the remaining portion of a metal-bearing ore 
after some or all of such metal, such as uranium, has been extracted.
    (n) Disposal period means the period of time beginning March 7, 1983 
and ending with the completion of all subpart A requirements specified 
under a plan for remedial action except those specified in Sec. 192.03 
and Sec. 192.04.
    (o) Plan for remedial action means a written plan (or plans) for 
disposal and cleanup of residual radioactive materials associated with a 
processing site that incorporates the results of site characterization 
studies, environmental assessments or impact statements, and engineering 
assessments so as to satisfy the requirements of subparts A and B of 
this part. The plan(s) shall be developed in accordance with the 
provisions of Section 108(a) of the Act with the concurrence of the 
Commission and in consultation, as appropriate, with the Indian Tribe 
and the Secretary of Interior.
    (p) Post-disposal period means the period of time beginning 
immediately after the disposal period and ending at

[[Page 19]]

termination of the monitoring period established under Sec. 192.03.
    (q) Groundwater means water below the ground surface in a zone of 
saturation.
    (r) Underground source of drinking water means an aquifer or its 
portion:
    (1)(i) Which supplies any public water system as defined in Sec. 
141.2 of this chapter; or
    (ii) Which contains a sufficient quantity of groundwater to supply a 
public water system; and
    (A) Currently supplies drinking water for human consumption; or
    (B) Contains fewer than 10,000 mg/l total dissolved solids; and
    (2) Which is not an exempted aquifer as defined in Sec. 144.7 of 
this chapter.

[48 FR 602, Jan. 5, 1983, as amended at 60 FR 2865, Jan. 11, 1995]



Sec. 192.02  Standards.

    Control of residual radioactive materials and their listed 
constituents shall be designed \1\ to:
---------------------------------------------------------------------------

    \1\ Because the standard applies to design, monitoring after 
disposal is not required to demonstrate compliance with respect to Sec. 
192.02(a) and (b).
---------------------------------------------------------------------------

    (a) Be effective for up to one thousand years, to the extent 
reasonably achievable, and, in any case, for at least 200 years, and,
    (b) Provide reasonable assurance that releases of radon-222 from 
residual radioactive material to the atmosphere will not:
    (1) Exceed an average \2\ release rate of 20 picocuries per square 
meter per second, or
---------------------------------------------------------------------------

    \2\ This average shall apply over the entire surface of the disposal 
site and over at least a one-year period. Radon will come from both 
residual radioactive materials and from materials covering them. Radon 
emissions from the covering materials should be estimated as part of 
developing a remedial action plan for each site. The standard, however, 
applies only to emissions from residual radioactive materials to the 
atmosphere.
---------------------------------------------------------------------------

    (2) Increase the annual average concentration of radon-222 in air at 
or above any location outside the disposal site by more than one-half 
picocurie per liter.
    (c) Provide reasonable assurance of conformance with the following 
groundwater protection provisions:
    (1) The Secretary shall, on a site-specific basis, determine which 
of the constituents listed in Appendix I to Part 192 are present in or 
reasonably derived from residual radioactive materials and shall 
establish a monitoring program adequate to determine background levels 
of each such constituent in groundwater at each disposal site.
    (2) The Secretary shall comply with conditions specified in a plan 
for remedial action which includes engineering specifications for a 
system of disposal designed to ensure that constituents identified under 
paragraph (c)(1) of this section entering the groundwater from a 
depository site (or a processing site, if residual radioactive materials 
are retained on the site) will not exceed the concentration limits 
established under paragraph (c)(3) of this section (or the supplemental 
standards established under Sec. 192.22) in the uppermost aquifer 
underlying the site beyond the point of compliance established under 
paragraph (c)(4) of this section.
    (3) Concentration limits:
    (i) Concentration limits shall be determined in the groundwater for 
listed constituents identified under paragraph (c)(1) of this section. 
The concentration of a listed constituent in groundwater must not 
exceed:
    (A) The background level of that constituent in the groundwater; or
    (B) For any of the constituents listed in Table 1 to subpart A, the 
respective value given in that Table if the background level of the 
constituent is below the value given in the Table; or
    (C) An alternate concentration limit established pursuant to 
paragraph (c)(3)(ii) of this section.
    (ii)(A) The Secretary may apply an alternate concentration limit if, 
after considering remedial or corrective actions to achieve the levels 
specified in paragraphs (c)(3)(i)(A) and (B) of this section, he has 
determined that the constituent will not pose a substantial present or 
potential hazard to human health and the environment as long as the 
alternate concentration limit is not exceeded, and the Commission has 
concurred.
    (B) In considering the present or potential hazard to human health 
and the

[[Page 20]]

environment of alternate concentration limits, the following factors 
shall be considered:
    (1) Potential adverse effects on groundwater quality, considering:
    (i) The physical and chemical characteristics of constituents in the 
residual radioactive material at the site, including their potential for 
migration;
    (ii) The hydrogeological characteristics of the site and surrounding 
land;
    (iii) The quantity of groundwater and the direction of groundwater 
flow;
    (iv) The proximity and withdrawal rates of groundwater users;
    (v) The current and future uses of groundwater in the region 
surrounding the site;
    (vi) The existing quality of groundwater, including other sources of 
contamination and their cumulative impact on the groundwater quality;
    (vii) The potential for health risks caused by human exposure to 
constituents;
    (viii) The potential damage to wildlife, crops, vegetation, and 
physical structures caused by exposure to constituents;
    (ix) The persistence and permanence of the potential adverse 
effects;
    (x) The presence of underground sources of drinking water and 
exempted aquifers identified under Sec. 144.7 of this chapter; and
    (2) Potential adverse effects on hydraulically-connected surface-
water quality, considering:
    (i) The volume and physical and chemical characteristics of the 
residual radioactive material at the site;
    (ii) The hydrogeological characteristics of the site and surrounding 
land;
    (iii) The quantity and quality of groundwater, and the direction of 
groundwater flow;
    (iv) The patterns of rainfall in the region;
    (v) The proximity of the site to surface waters;
    (vi) The current and future uses of surface waters in the region 
surrounding the site and any water quality standards established for 
those surface waters;
    (vii) The existing quality of surface water, including other sources 
of contamination and their cumulative impact on surface water quality;
    (viii) The potential for health risks caused by human exposure to 
constituents;
    (ix) The potential damage to wildlife, crops, vegetation, and 
physical structures caused by exposure to constituents; and
    (x) The persistence and permanence of the potential adverse effects.
    (4) Point of compliance: The point of compliance is the location at 
which the groundwater concentration limits of paragraph (c)(3) of this 
section apply. The point of compliance is the intersection of a vertical 
plane with the uppermost aquifer underlying the site, located at the 
hydraulically downgradient limit of the disposal area plus the area 
taken up by any liner, dike, or other barrier designed to contain the 
residual radioactive material.
    (d) Each site on which disposal occurs shall be designed and 
stabilized in a manner that minimizes the need for future maintenance.

[60 FR 2865, Jan. 11, 1995]



Sec. 192.03  Monitoring.

    A groundwater monitoring plan shall be implemented, to be carried 
out over a period of time commencing upon completion of remedial actions 
taken to comply with the standards in Sec. 192.02, and of a duration 
which is adequate to demonstrate that future performance of the system 
of disposal can reasonably be expected to be in accordance with the 
design requirements of Sec. 192.02(c). This plan and the length of the 
monitoring period shall be modified to incorporate any corrective 
actions required under Sec. 192.04 or Sec. 192.12(c).

[60 FR 2866, Jan. 11, 1995]



Sec. 192.04  Corrective action.

    If the groundwater concentration limits established for disposal 
sites under provisions of Sec. 192.02(c) are found or projected to be 
exceeded, a corrective action program shall be placed into operation as 
soon as is practicable, and in no event later than eighteen (18) months 
after a finding of exceedance. This corrective action program will 
restore the performance of the system of disposal to the original 
concentration limits established under

[[Page 21]]

Sec. 192.02(c)(3), to the extent reasonably achievable, and, in any 
case, as a minimum shall:
    (a) Conform with the groundwater provisions of Sec. 192.02(c)(3), 
and
    (b) Clean up groundwater in conformance with subpart B, modified as 
appropriate to apply to the disposal site.

[60 FR 2866, Jan. 11, 1995]



    Sec. Table 1 to Subpart A of Part 192--Maximum Concentration of 
                 Constituents for Groundwater Protection

------------------------------------------------------------------------
      Constituent concentration \1\                   Maximum
------------------------------------------------------------------------
Arsenic.................................  0.05
Barium..................................  1.0
Cadmium.................................  0.01
Chromium................................  0.05
Lead....................................  0.05
Mercury.................................  0.002
Selenium................................  0.01
Silver..................................  0.05
Nitrate (as N)..........................  10.
Molybdenum..............................  0.1
Combined radium-226 and radium-228......  5 pCi/liter
Combined uranium-234 and uranium-238 \2\  30 pCi/liter
Gross alpha-particle activity (excluding  15 pCi/liter
 radon and uranium).
Endrin (1,2,3,4,10,10-hexachloro-6,7-     0.0002
 exposy-1,4,4a,5,6,7,8,8a-octahydro-1,4-
 endo,endo-5,8-dimethanonaphthalene).
Lindane (1,2,3,4,5,6-                     0.004
 hexachlorocyclohexane, gamma insomer).
Methoxychlor (1,1,1-trichloro-2,2'-bis(p- 0.1
 methoxyphenylethane)).
Toxaphene (C10 H10 Cl6, technical         0.005
 chlorinated camphene, 67-69 percent
 chlorine).
2,4-D (2,4-dichlorophenoxyacetic acid)..  0.1
2,4,5-TP Silvex (2,4,5-                   0.01
 trichlorophenoxypropionic acid).
------------------------------------------------------------------------
\1\ Milligrams per liter, unless stated otherwise.
\2\ Where secular equilibrium obtains, this criterion will be satisfied
  by a concentration of 0.044 milligrams per liter (0.044 mg/l). For
  conditions of other than secular equilibrium, a corresponding value
  may be derived and applied, based on the measured site-specific ratio
  of the two isotopes of uranium.


[60 FR 2866, Jan. 11, 1995]



Subpart B_Standards for Cleanup of Land and Buildings Contaminated with 
  Residual Radioactive Materials from Inactive Uranium Processing Sites



Sec. 192.10  Applicability.

    This subpart applies to land and buildings that are part of any 
processing site designated by the Secretary of Energy under section 102 
of the Act. section 101 of the Act, states, in part, that ``processing 
site'' means--
    (a) Any site, including the mill, containing residual radioactive 
materials at which all or substantially all of the uranium was produced 
for sale to any Federal agency prior to January 1, 1971, under a 
contract with any Federal agency, except in the case of a site at or 
near Slick Rock, Colorado, unless--
    (1) Such site was owned or controlled as of Januray 1, 1978, or is 
thereafter owned or controlled, by any Federal agency, or
    (2) A license (issued by the (Nuclear Regulatory) Commission or its 
predecessor agency under the Atomic Energy Act of 1954 or by a State as 
permitted under section 274 of such Act) for the production at site of 
any uranium or thorium product derived from ores is in effect on January 
1, 1978, or is issued or renewed after such date; and
    (b) Any other real property or improvement thereon which--
    (1) Is in the vicinity of such site, and
    (2) Is determined by the Secretary, in consultation with the 
Commission, to be contaminated with residual radioactive materials 
derived from such site.



Sec. 192.11  Definitions.

    (a) Unless otherwise indicated in this subpart, all terms shall have 
the same meaning as defined in subpart A.
    (b) Land means any surface or subsurface land that is not part of a 
disposal site and is not covered by an occupiable building.
    (c) Working Level (WL) means any combination of short-lived radon 
decay products in one liter of air that will result in the ultimate 
emission of alpha particles with a total energy of 130 billion electron 
volts.
    (d) Soil means all unconsolidated materials normally found on or 
near the surface of the earth including, but not limited to, silts, 
clays, sands, gravel, and small rocks.
    (e) Limited use groundwater means groundwater that is not a current 
or potential source of drinking water because (1) the concentration of 
total dissolved solids is in excess of 10,000 mg/l,

[[Page 22]]

or (2) widespread, ambient contamination not due to activities involving 
residual radioactive materials from a designated processing site exists 
that cannot be cleaned up using treatment methods reasonably employed in 
public water systems, or (3) the quantity of water reasonably available 
for sustained continuous use is less than 150 gallons per day. The 
parameters for determining the quantity of water reasonably available 
shall be determined by the Secretary with the concurrence of the 
Commission.

[48 FR 602, Jan. 5, 1983, as amended at 60 FR 2866, Jan. 11, 1995]



Sec. 192.12  Standards.

    Remedial actions shall be conducted so as to provide reasonable 
assurance that, as a result of residual radioactive materials from any 
designated processing site:
    (a) The concentration of radium-226 in land averaged over any area 
of 100 square meters shall not exceed the background level by more 
than--
    (1) 5 pCi/g, averaged over the first 15 cm of soil below the 
surface, and
    (2) 15 pCi/g, averaged over 15 cm thick layers of soil more than 15 
cm below the surface.
    (b) In any occupied or habitable building--
    (1) The objective of remedial action shall be, and reasonable effort 
shall be made to achieve, an annual average (or equivalent) radon decay 
product concentration (including background) not to exceed 0.02 WL. In 
any case, the radon decay product concentration (including background) 
shall not exceed 0.03 WL, and
    (2) The level of gamma radiation shall not exceed the background 
level by more than 20 microroentgens per hour.
    (c) The Secretary shall comply with conditions specified in a plan 
for remedial action which provides that contamination of groundwater by 
listed constituents from residual radioactive material at any designated 
processing site (Sec. 192.01(1)) shall be brought into compliance as 
promptly as is reasonably achievable with the provisions of Sec. 
192.02(c)(3) or any supplemental standards established under Sec. 
192.22. For the purposes of this subpart:
    (1) A monitoring program shall be carried out that is adequate to 
define backgroundwater quality and the areal extent and magnitude of 
groundwater contamination by listed constituents from residual 
radioactive materials (Sec. 192.02(c)(1)) and to monitor compliance 
with this subpart. The Secretary shall determine which of the 
constituents listed in Appendix I to part 192 are present in or could 
reasonably be derived from residual radioactive material at the site, 
and concentration limits shall be established in accordance with Sec. 
192.02(c)(3).
    (2) (i) If the Secretary determines that sole reliance on active 
remedial procedures is not appropriate and that cleanup of the 
groundwater can be more reasonably accomplished in full or in part 
through natural flushing, then the period for remedial procedures may be 
extended. Such an extended period may extend to a term not to exceed 100 
years if:
    (A) The concentration limits established under this subpart are 
projected to be satisfied at the end of this extended period,
    (B) Institutional control, having a high degree of permanence and 
which will effectively protect public health and the environment and 
satisfy beneficial uses of groundwater during the extended period and 
which is enforceable by the administrative or judicial branches of 
government entities, is instituted and maintained, as part of the 
remedial action, at the processing site and wherever contamination by 
listed constituents from residual radioactive materials is found in 
groundwater, or is projected to be found, and
    (C) The groundwater is not currently and is not now projected to 
become a source for a public water system subject to provisions of the 
Safe Drinking Water Act during the extended period.
    (ii) Remedial actions on groundwater conducted under this subpart 
may occur before or after actions under Section 104(f)(2) of the Act are 
initiated.
    (3) Compliance with this subpart shall be demonstrated through the 
monitoring program established under paragraph (c)(1) of this section at 
those locations not beneath a disposal site

[[Page 23]]

and its cover where groundwater contains listed constituents from 
residual radioactive material.

[48 FR 602, Jan. 5, 1983, as amended at 60 FR 2867, Jan. 11, 1995]



                        Subpart C_Implementation



Sec. 192.20  Guidance for implementation.

    Section 108 of the Act requires the Secretary of Energy to select 
and perform remedial actions with the concurrence of the Nuclear 
Regulatory Commission and the full participation of any State that pays 
part of the cost, and in consultation, as appropriate, with affected 
Indian Tribes and the Secretary of the Interior. These parties, in their 
respective roles under section 108, are referred to hereafter as ``the 
implementing agencies.'' The implementing agencies shall establish 
methods and procedures to provide ``reasonable assurance'' that the 
provisions of Subparts A and B are satisfied. This should be done as 
appropriate through use of analytic models and site-specific analyses, 
in the case of Subpart A, and for Subpart B through measurements 
performed within the accuracy of currently available types of field and 
laboratory instruments in conjunction with reasonable survey and 
sampling procedures. These methods and procedures may be varied to suit 
conditions at specific sites. In particular:
    (a)(1) The purpose of Subpart A is to provide for long-term 
stabilization and isolation in order to inhibit misuse and spreading of 
residual radioactive materials, control releases of radon to air, and 
protect water. Subpart A may be implemented through analysis of the 
physical properties of the site and the control system and projection of 
the effects of natural processes over time. Events and processes that 
could significantly affect the average radon release rate from the 
entire disposal site should be considered. Phenomena that are localized 
or temporary, such as local cracking or burrowing of rodents, need to be 
taken into account only if their cumulative effect would be significant 
in determining compliance with the standard. Computational models, 
theories, and prevalent expert judgment may be used to decide that a 
control system design will satisfy the standard. The numerical range 
provided in the standard for the longevity of the effectiveness of the 
control of residual radioactive materials allows for consideration of 
the various factors affecting the longevity of control and stabilization 
methods and their costs. These factors have different levels of 
predictability and may vary for the different sites.
    (2) Protection of water should be considered on a case-specific 
basis, drawing on hydrological and geochemical surveys and all other 
relevant data. The hydrologic and geologic assessment to be conducted at 
each site should include a monitoring program sufficient to establish 
background groundwater quality through one or more upgradient or other 
appropriately located wells. The groundwater monitoring list in Appendix 
IX of part 264 of this chapter (plus the additional constituents in 
Table A of this paragraph) may be used for screening purposes in place 
of Appendix I of part 192 in the monitoring program. New depository 
sites for tailings that contain water at greater than the level of 
``specific retention'' should use aliner or equivalent. In considering 
design objectives for groundwater protection, the implementing agencies 
should give priority to concentration levels in the order listed under 
Sec. 192.02(c)(3)(i). When considering the potential for health risks 
caused by human exposure to known or suspected carcinogens, alternate 
concentration limits pursuant to paragraph 192.02(c)(3)(ii) should be 
established at concentration levels which represent an excess lifetime 
risk, at a point of exposure, to an average individual no greater than 
between 10-4 and 10-6.

     Table A to Sec. 192.20(a)(2)--Additional Listed Constituents
Nitrate (as N)
Molybdenum
Combined radium-226 and radium-228
Combined uranium-234 and uranium-238
Gross alpha-particle activity (excluding radon and uranium)
 

    (3) The plan for remedial action, concurred in by the Commission, 
will specify how applicable requirements of subpart A are to be 
satisfied. The plan

[[Page 24]]

should include the schedule and steps necessary to complete disposal 
operations at the site. It should include an estimate of the inventory 
of wastes to be disposed of in the pile and their listed constituents 
and address any need to eliminate free liquids; stabilization of the 
wastes to a bearing capacity sufficient to support the final cover; and 
the design and engineering specifications for a cover to manage the 
migration of liquids through the stabilized pile, function without 
maintenance, promote drainage and minimize erosion or abrasion of the 
cover, and accommodate settling and subsidence so that cover integrity 
is maintained. Evaluation of proposed designs to conform to subpart A 
should be based on realistic technical judgments and include use of 
available empirical information. The consideration of possible failure 
modes and related corrective actions should be limited to reasonable 
failure assumptions, with a demonstration that the disposal design is 
generally amenable to a range of corrective actions.
    (4) The groundwater monitoring list in Appendix IX of part 264 of 
this chapter (plus the additional constituents in Table A in paragraph 
(a)(2) of this section) may be used for screening purposes in place of 
Appendix I of part 192 in monitoring programs. The monitoring plan 
required under Sec. 192.03 should be designed to include verification 
of site-specific assumptions used to project the performance of the 
disposal system. Prevention of contamination of groundwater may be 
assessed by indirect methods, such as measuring the migration of 
moisture in the various components of the cover, the tailings, and the 
area between the tailings and the nearest aquifer, as well as by direct 
monitoring of groundwater. In the case of vicinity properties (Sec. 
192.01(l)(2)), such assessments may not be necessary, as determined by 
the Secretary, with the concurrence of the Commission, considering such 
factors as local geology and the amount of contamination present. 
Temporary excursions from applicable limits of groundwater 
concentrations that are attributable to a disposal operation itself 
shall not constitute a basis for considering corrective action under 
Sec. 192.04 during the disposal period, unless the disposal operation 
is suspended prior to completion for other than seasonal reasons.
    (b)(1) Compliance with Sec. 192.12(a) and (b) of subpart B, to the 
extent practical, should be demonstrated through radiation surveys. Such 
surveys may, if appropriate, be restricted to locations likely to 
contain residual radioactive materials. These surveys should be designed 
to provide for compliance averaged over limited areas rather than point-
by-point compliance with the standards. In most cases, measurement of 
gamma radiation exposure rates above and below the land surface can be 
used to show compliance with Sec. 192.12(a). Protocols for making such 
measurements should be based on realistic radium distributions near the 
surface rather than extremes rarely encountered.
    (2) In Sec. 192.12(a), ``background level'' refers to the native 
radium concentration in soil. Since this may not be determinable in the 
presence of contamination by residual radioactive materials, a surrogate 
``background level'' may be established by simple direct or indirect 
(e.g., gamma radiation) measurements performed nearby but outside of the 
contaminated location.
    (3) Compliance with Sec. 192.12(b) may be demonstrated by methods 
that the Department of Energy has approved for use under Pub. L. 92-314 
(10 CFR part 712), or by other methods that the implementing agencies 
determine are adequate. Residual radioactive materials should be removed 
from buildings exceeding 0.03 WL so that future replacement buildings 
will not pose a hazard [unless removal is not practical--see Sec. 
192.21(c)]. However, seal ants, filtration, and ventilation devices may 
provide reasonable as sur ance of reductions from 0.03 WL to below 0.02 
WL. In unusual cases, indoor radiation may exceed the levels specified 
in Sec. 192.12(b) due to sources other than residual radioactive 
materials. Re medial actions are not required in order to comply with 
the standard when there is reasonable assurance that residual 
radioactive materials are not the cause of such an excess.

[[Page 25]]

    (4) The plan(s) for remedial action will specify how applicable 
requirements of subpart B would be satisfied. The plan should include 
the schedule and steps necessary to complete the cleanup of groundwater 
at the site. It should document the extent of contamination due to 
releases prior to final disposal, including the identification and 
location of listed constituents and the rate and direction of movement 
of contaminated groundwater, based upon the monitoring carried out under 
Sec. 192.12(c)(1). In addition, the assessment should consider future 
plume movement, including an evaluation of such processes as attenuation 
and dilution and future contamination from beneath a disposal site. 
Monitoring for assessment and compliance purposes should be sufficient 
to establish the extent and magnitude of contamination, with reasonable 
assurance, through use of a carefully chosen minimal number of sampling 
locations. The location and number of monitoring wells, the frequency 
and duration of monitoring, and the selection of indicator analytes for 
long-term groundwater monitoring, and, more generally, the design and 
operation of the monitoring system, will depend on the potential for 
risk to receptors and upon other factors, including characteristics of 
the subsurface environment, such as velocity of groundwater flow, 
contaminant retardation, time of groundwater or contaminant transit to 
receptors, results of statistical evaluations of data trends, and 
modeling of the dynamics of the groundwater system. All of these factors 
should be incorporated into the design of a site-specific monitoring 
program that will achieve the purpose of the regulations in this subpart 
in the most cost-effective manner. In the case of vicinity properties 
(Sec. 192.01(l)(2)), such assessments will usually not be necessary. 
The Secretary, with the concurrence of the Commission, may consider such 
factors as local geology and amount of contamination present in 
determining criteria to decide when such assessments are needed. In 
cases where Sec. 192.12(c)(2) is invoked, the plan should include a 
monitoring program sufficient to verify projections of plume movement 
and attenuation periodically during the extended cleanup period. 
Finally, the plan should specify details of the method to be used for 
cleanup of groundwater.

[48 FR 602, Jan. 5, 1983, as amended at 60 FR 2867, Jan. 11, 1995]



Sec. 192.21  Criteria for applying supplemental standards.

    Unless otherwise indicated in this subpart, all terms shall have the 
same meaning as defined in Title I of the Act or in subparts A and B. 
The implementing agencies may (and in the case of paragraph (h) of this 
section shall) apply standards under Sec. 192.22 in lieu of the 
standards of subparts A or B if they determine that any of the following 
circumstances exists:
    (a) Remedial actions required to satisfy subpart A or B would pose a 
clear and present risk of injury to workers or to members of the public, 
notwithstanding reasonable measures to avoid or reduce risk.
    (b) Remedial actions to satisfy the cleanup standards for land, 
Sec. 192.12(a), and groundwater, Sec. 192.12(c), or the acquisition of 
minimum materials required for control to satisfy Sec. Sec. 192.02(b) 
and (c), would, notwithstanding reasonable measures to limit damage, 
directly produce health and environmental harm that is clearly excessive 
compared to the health and environmental benefits, now or in the future. 
A clear excess of health and environmental harm is harm that is long-
term, manifest, and grossly disproportionate to health and environmental 
benefits that may reasonably be anticipated.
    (c) The estimated cost of remedial action to satisfy Sec. 192.12(a) 
at a ``vicinity'' site (described under section 101(6)(B) of the Act) is 
unreasonably high relative to the long-term benefits, and the residual 
radioactive materials do not pose a clear present or future hazard. The 
likelihood that buildings will be erected or that people will spend long 
periods of time at such a vicinity site should be considered in 
evaluating this hazard. Remedial action will generally not be necessary 
where residual radioactive materials have been placed semi-permanently 
in a location where site-specific factors limit their hazard and from 
which they are costly or difficult to remove, or

[[Page 26]]

where only minor quantities of residual radioactive materials are 
involved. Examples are residual radioactive materials under hard surface 
public roads and sidewalks, around public sewer lines, or in fence post 
foundations. Supplemental standards should not be applied at such sites, 
however, if individuals are likely to be exposed for long periods of 
time to radiation from such materials at levels above those that would 
prevail under Sec. 192.12(a).
    (d) The cost of a remedial action for cleanup of a building under 
Sec. 192.12(b) is clearly unreasonably high relative to the benefits. 
Factors that should be included in this judgment are the anticipated 
period of occupancy, the incremental radiation level that would be 
affected by the remedial action, the residual useful lifetime of the 
building, the potential for future construction at the site, and the 
applicability of less costly remedial methods than removal of residual 
radioactive materials.
    (e) There is no known remedial action.
    (f) The restoration of groundwater quality at any designated 
processing site under Sec. 192.12(c) is technically impracticable from 
an engineering perspective.
    (g) The groundwater meets the criteria of Sec. 192.11(e).
    (h) Radionuclides other than radium-226 and its decay products are 
present in sufficient quantity and concentration to constitute a 
significant radiation hazard from residual radioactive materials.

[48 FR 602, Jan. 5, 1983, as amended at 60 FR 2868, Jan. 11, 1995]



Sec. 192.22  Supplemental standards.

    Federal agencies implementing subparts A and B may in lieu thereof 
proceed pursuant to this section with respect to generic or individual 
situations meeting the eligibility requirements of Sec. 192.21.
    (a) When one or more of the criteria of Sec. 192.21(a) through (g) 
applies, the Secretary shall select and perform that alternative 
remedial action that comes as close to meeting the otherwise applicable 
standard under Sec. 192.02(c)(3) as is reasonably achievable.
    (b) When Sec. 192.21(h) applies, remedial actions shall reduce 
other residual radioactivity to levels that are as low as is reasonably 
achievable and conform to the standards of subparts A and B to the 
maximum extent practicable.
    (c) The implementing agencies may make general determinations 
concerning remedial actions under this section that will apply to all 
locations with specified characteristics, or they may make a 
determination for a specific location. When remedial actions are 
proposed under this section for a specific location, the Department of 
Energy shall inform any private owners and occupants of the affected 
location and solicit their comments. The Department of Energy shall 
provide any such comments to the other implementing agencies. The 
Department of Energy shall also periodically inform the Environmental 
Protection Agency of both general and individual determinations under 
the provisions of this section.
    (d) When Sec. 192.21(b), (f), or (g) apply, implementing agencies 
shall apply any remedial actions for the restoration of contamination of 
groundwater by residual radioactive materials that is required to 
assure, at a minimum, protection of human health and the environment. In 
addition, when Sec. 192.21(g) applies, supplemental standards shall 
ensure that current and reasonably projected uses of the affected 
groundwater are preserved.

[48 FR 602, Jan. 5, 1983, as amended at 60 FR 2868, Jan. 11, 1995]



Sec. 192.23  Effective date.

    Subparts A, B, and C shall be effective March 7, 1983.



   Subpart D_Standards for Management of Uranium Byproduct Materials 
   Pursuant to Section 84 of the Atomic Energy Act of 1954, as Amended

    Source: 48 FR 45946, Oct. 7, 1983, unless otherwise noted.



Sec. 192.30  Applicability.

    This subpart applies to the management of uranium byproduct 
materials under section 84 of the Atomic Energy Act of 1954 (henceforth 
designated ``the

[[Page 27]]

Act''), as amended, during and following processing of uranium ores, and 
to restoration of disposal sites following any use of such sites under 
section 83(b)(1)(B) of the Act.



Sec. 192.31  Definitions and cross-references.

    References in this subpart to other parts of the Code of Federal 
Regulations are to those parts as codified on January 1, 1983.
    (a) Unless otherwise indicated in this subpart, all terms shall have 
the same meaning as in Title II of the Uranium Mill Tailings Rediation 
Control Act of 1978, subparts A and B of this part, or parts 190, 260, 
261, and 264 of this chapter. For the purposes of this subpart, the 
terms ``waste,'' ``hazardous waste,'' and related terms, as used in 
parts 260, 261, and 264 of this chapter shall apply to byproduct 
material.
    (b) Uranium byproduct material means the tailings or wastes produced 
by the extraction or concentration of uranium from any ore processed 
primarily for its source material content. Ore bodies depleted by 
uranium solution extraction operations and which remain underground do 
not constitute ``byproduct material'' for the purpose of this subpart.
    (c) Control means any action to stabilize, inhibit future misuse of, 
or reduce emissions or effluents from uranium byproduct materials.
    (d) Licensed site means the area contained within the boundary of a 
location under the control of persons generating or storing uranium 
byproduct materials under a license issued pursuant to section 84 of the 
Act. For purposes of this subpart, ``licensed site'' is equivalent to 
``regulated unit'' in subpart F of part 264 of this chapter.
    (e) Disposal site means a site selected pursuant to section 83 of 
the Act.
    (f) Disposal area means the region within the perimeter of an 
impoundment or pile containing uranium by product materials to which the 
post-closure requirements of Sec. 192.32(b)(1) of this subpart apply.
    (g) Regulatory agency means the U.S. Nuclear Regulatory Commission.
    (h) Closure period means the period of time beginning with the 
cessation, with respect to a waste impoundment, of uranium ore 
processing operations and ending with completion of requirements 
specified under a closure plan.
    (i) Closure plan means the plan required under Sec. 264.112 of this 
chapter.
    (j) Existing portion means that land surface area of an existing 
surface impoundment on which significant quantities of uranium byproduct 
materials have been placed prior to promulgation of this standard.
    (k) As expeditiously as practicable considering technological 
feasibility means as quickly as possible considering: the physical 
characteristics of the tailings and the site; the limits of available 
technology; the need for consistency with mandatory requirements of 
other regulatory programs; and factors beyond the control of the 
licensee. The phrase permits consideration of the cost of compliance 
only to the extent specifically provided for by use of the term 
``available technology.''
    (l) Permanent Radon Barrier means the final radon barrier 
constructed to achieve compliance with, including attainment of, the 
limit on releases of radon-222 in Sec. 192.32(b)(1)(ii).
    (m) Available technology means technologies and methods for 
emplacing a permanent radon barrier on uranium mill tailings piles or 
impoundments. This term shall not be construed to include extraordinary 
measures or techniques that would impose costs that are grossly 
excessive as measured by practice within the industry or one that is 
reasonably analogous, (such as, by way of illustration only, 
unreasonable overtime, staffing or transportation requirements, etc., 
considering normal practice in the industry; laser fusion, of soils, 
etc.), provided there is reasonable progress toward emplacement of a 
permanent radon barrier. To determine grossly excessive costs, the 
relevant baseline against which cost increases shall be compared is the 
cost estimate for tailings impoundment closure contained in the 
licensee's tailings closure plan, but costs beyond such estimates shall 
not automatically be considered grossly excessive.
    (n) Tailings Closure Plan (Radon) means the Nuclear Regulatory 
Commission or Agreement State approved plan detailing activities to 
accomplish timely emplacement of a permanent

[[Page 28]]

radon barrier. A tailings closure plan shall include a schedule for key 
radon closure milestone activities such as wind blown tailings retrieval 
and placement on the pile, interim stabilization (including dewatering 
or the removal of freestanding liquids and recontouring), and 
emplacement of a permanent radon barrier constructed to achieve 
compliance with the 20 pCi/m\2\-s flux standard as expeditiously as 
practicable considering technological feasibility (including factors 
beyond the control of the licensee).
    (o) Factors beyond the control of the licensee means factors 
proximately causing delay in meeting the schedule in the applicable 
license for timely emplacement of the permanent radon barrier 
notwithstanding the good faith efforts of the licensee to achieve 
compliance. These factors may include, but are not limited to, physical 
conditions at the site; inclement weather or climatic conditions; an act 
of God; an act of war; a judicial or administrative order or decision, 
or change to the statutory, regulatory, or other legal requirements 
applicable to the licensee's facility that would preclude or delay the 
performance of activities required for compliance; labor disturbances; 
any modifications, cessation or delay ordered by state, Federal or local 
agencies; delays beyond the time reasonably required in obtaining 
necessary governmental permits, licenses, approvals or consent for 
activities described in the tailings closure plan (radon) proposed by 
the licensee that result from agency failure to take final action after 
the licensee has made a good faith, timely effort to submit legally 
sufficient applications, responses to requests (including relevant data 
requested by the agencies), or other information, including approval of 
the tailings closure plan by NRC or the affected Agreement State; and an 
act or omission of any third party over whom the licensee has no 
control.
    (p) Operational means that a uranium mill tailings pile or 
impoundment is being used for the continued placement of uranium 
byproduct material or is in standby status for such placement. A 
tailings pile or impoundment is operational from the day that uranium 
byproduct material is first placed in the pile or impoundment until the 
day final closure begins.
    (q) Milestone means an enforceable date by which action, or the 
occurrence of an event, is required for purposes of achieving compliance 
with the 20 pCi/m\2\-s flux standard.

[48 FR 45946, Oct. 7, 1983, as amended at 58 FR 60355, Nov. 15, 1993]



Sec. 192.32  Standards.

    (a) Standards for application during processing operations and prior 
to the end of the closure period. (1) Surface impoundments (except for 
an existing portion) subject to this subpart must be designed, 
constructed, and installed in such manner as to conform to the 
requirements of Sec. 264.221 of this chapter, except that at sites 
where the annual precipitation falling on the impoundment and any 
drainage area contributing surface runoff to the impoundment is less 
than the annual evaporation from the impoundment, the requirements of 
Sec. 264.228(a)(2) (iii)(E) referenced in Sec. 264.221 do not apply.
    (2) Uranium byproduct materials shall be managed so as to conform to 
the ground water protection standard in Sec. 264.92 of this chapter, 
except that for the purposes of this subpart:
    (i) To the list of hazardous constituents referenced in Sec. 264.93 
of this chapter are added the chemical elements molybdenum and uranium,
    (ii) To the concentration limits provided in Table 1 of Sec. 264.94 
of this chapter are added the radioactivity limits in Table A of this 
subpart,
    (iii) Detection monitoring programs required under Sec. 264.98 to 
establish the standards required under Sec. 264.92 shall be completed 
within one (1) year of promulgation,
    (iv) The regulatory agency may establish alternate concentration 
limits (to be satisfied at the point of compliance specified under Sec. 
264.95) under the criteria of Sec. 264.94(b), provided that, after 
considering practicable corrective actions, these limits are as low as 
reasonably achievable, and that, in any case, the standards of Sec. 
264.94(a) are satisfied at all points at a greater distance than 500 
meters from the edge of the disposal area and/or outside the site 
boundary, and

[[Page 29]]

    (v) The functions and responsibilities designated in Part 264 of 
this chapter as those of the ``Regional Administrator'' with respect to 
``facility permits'' shall be carried out by the regulatory agency, 
except that exemptions of hazardous constituents under Sec. 264.93 (b) 
and (c) of this chapter and alter nate concentration limits established 
under Sec. 264.94 (b) and (c) of this chapter (except as otherwise 
provided in Sec. 192.32(a)(2)(iv)) shall not be effective until EPA has 
concurred therein.
    (3)(i) Uranium mill tailings piles or impoundments that are 
nonoperational and subject to a license by the Nuclear Regulatory 
Commission or an Agreement State shall limit releases of radon-222 by 
emplacing a permanent radon barrier. This permanent radon barrier shall 
be constructed as expeditiously as practicable considering technological 
feasibility (including factors beyond the control of the licensee) after 
the pile or impoundment ceases to be operational. Such control shall be 
carried out in accordance with a written tailings closure plan (radon) 
to be incorporated by the Nuclear Regulatory Commission or Agreement 
State into individual site licenses.
    (ii) The Nuclear Regulatory Commission or Agreement State may 
approve a licensee's request to extend the time for performance of 
milestones if, after providing an opportunity for public participation, 
the Nuclear Regulatory Commission or Agreement State finds that 
compliance with the 20 pCi/m\2\-s flux standard has been demonstrated 
using a method approved by the NRC, in the manner required in 
192.32(a)(4)(i). Only under these circumstances and during the period of 
the extension must compliance with the 20 pCi/m\2\-s flux standard be 
demonstrated each year.
    (iii) The Nuclear Regulatory Commission or Agreement State may 
extend the final compliance date for emplacement of the permanent radon 
barrier, or relevant milestone, based upon cost if the new date is 
established after a finding by the Nuclear Regulatory Commission or 
Agreement State, after providing an opportunity for public 
participation, that the licensee is making good faith efforts to emplace 
a permanent radon barrier; the delay is consistent with the definition 
of ``available technology'' in Sec. 192.31(m); and the delay will not 
result in radon releases that are determined to result in significant 
incremental risk to the public health.
    (iv) The Nuclear Regulatory Commission or Agreement State may, in 
response to a request from a licensee, authorize by license or license 
amendment a portion of the site to remain accessible during the closure 
process to accept uranium byproduct material as defined in section 
11(e)(2) of the Atomic Energy Act, 42 U.S.C. 2014(e)(2), or to accept 
materials similar to the physical, chemical and radiological 
characteristics of the in situ uranium mill tailings and associated 
wastes, from other sources. No such authorization may be used as a means 
for delaying or otherwise impeding emplacement of the permanent radon 
barrier over the remainder of the pile or impoundment in a manner that 
will achieve compliance with the 20 pCi/m\2\-s flux standard, averaged 
over the entire pile or impoundment.
    (v) The Nuclear Regulatory Commission or Agreement State may, in 
response to a request from a licensee, authorize by license or license 
amendment a portion of a pile or impoundment to remain accessible after 
emplacement of a permanent radon barrier to accept uranium byproduct 
material as defined in section 11(e)(2) of the Atomic Energy Act, 42 
U.S.C. 2014(e)(2), if compliance with the 20 pCi/m\2\-s flux standard of 
Sec. 192.32(b)(1)(ii) is demonstrated by the licensee's monitoring 
conducted in a manner consistent with Sec. 192.32(a)(4)(i). Such 
authorization may be provided only if the Nuclear Regulatory Commission 
or Agreement State makes a finding, constituting final agency action and 
after providing an opportunity for public participation, that the site 
will continue to achieve the 20 pCi/m2-s flux standard when averaged 
over the entire impoundment.
    (4)(i) Upon emplacement of the permanent radon barrier pursuant to 
40 CFR 192.32(a)(3), the licensee shall conduct appropriate monitoring 
and analysis of the radon-222 releases to demonstrate that the design of 
the permanent radon barrier is effective in limiting releases of radon-
222 to a level

[[Page 30]]

not exceeding 20 pCi/m\2\-s as required by 40 CFR 192.32(b)(1)(ii). This 
monitoring shall be conducted using the procedures described in 40 CFR 
part 61, Appendix B, Method 115, or any other measurement method 
proposed by a licensee that the Nuclear Regulatory Commission or 
Agreement State approves as being at least as effective as EPA Method 
115 in demonstrating the effectiveness of the permanent radon barrier in 
achieving compliance with the 20 pCi/m\2\-s flux standard.
    (ii) When phased emplacement of the permanent radon barrier is 
included in the applicable tailings closure plan (radon), then radon 
flux monitoring required under Sec. 192.32(a)(4)(i) shall be conducted, 
however the licensee shall be allowed to conduct such monitoring for 
each portion of the pile or impoundment on which the radon barrier has 
been emplaced by conducting flux monitoring on the closed portion.
    (5) Uranium byproduct materials shall be managed so as to conform to 
the provisions of:
    (i) Part 190 of this chapter, ``Environmental Radiation Protection 
Standards for Nuclear Power Operations'' and
    (ii) Part 440 of this chapter, ``Ore Mining and Dressing Point 
Source Category: Effluent Limitations Guidelines and New Source 
Performance Standards, Subpart C, Uranium, Radium, and Vanadium Ores 
Subcategory.''
    (6) The regulatory agency, in conformity with Federal Radiation 
Protection Guidance (FR, May 18, 1960, pgs. 4402-4403), shall make every 
effort to maintain radiation doses from radon emissions from surface 
impoundments of uranium byproduct materials as far below the Federal 
Radiation Protection Guides as is practicable at each licensed site.
    (b) Standards for application after the closure period. At the end 
of the closure period:
    (1) Disposal areas shall each comply with the closure performance 
standard in Sec. 264.111 of this chapter with respect to 
nonradiological hazards and shall be designed \1\ to provide reasonable 
assurance of control of radiological hazards to
---------------------------------------------------------------------------

    \1\ The standard applies to design with a monitoring requirement as 
specified in Sec. 192.32(a)(4).
---------------------------------------------------------------------------

    (i) Be effective for one thousand years, to the extent reasonably 
achievable, and, in any case, for at least 200 years, and,
    (ii) Limit releases of radon-222 from uranium byproduct materials to 
the atmosphere so as to not exceed an average \2\ release rate of 20 
picocuries per square meter per second (pCi/m2s).
---------------------------------------------------------------------------

    \2\ This average shall apply to the entire surface of each disposal 
area over periods of at least one year, but short compared to 100 years. 
Radon will come from both uranium byproduct materials and from covering 
materials. Radon emissions from covering materials should be estimated 
as part of developing a closure plan for each site. The standard, 
however, applies only to emissions from uranium byproduct materials to 
the atmosphere.
---------------------------------------------------------------------------

    (2) The requirements of Sec. 192.32(b)(1) shall not apply to any 
portion of a licensed and/or disposal site which contains a 
concentration of radium-226 in land, averaged over areas of 100 square 
meters, which, as a result of uranium byproduct material, does not 
exceed the background level by more than:
    (i) 5 picocuries per gram (pCi/g), averaged over the first 15 
centimeters (cm) below the surface, and
    (ii) 15 pCi/g, averaged over 15 cm thick layers more than 15 cm 
below the surface.

[48 FR 45946, Oct. 7, 1983, as amended at 58 FR 60355-60356, Nov. 15, 
1993]



Sec. 192.33  Corrective action programs.

    If the ground water standards established under provisions of Sec. 
192.32(a)(2) are exceeded at any licensed site, a corrective action 
program as specified in Sec. 264.100 of this chapter shall be put into 
operation as soon as is practicable, and in no event later than eighteen 
(18) months after a finding of exceedance.



Sec. 192.34  Effective date.

    Subpart D shall be effective December 6, 1983.



                  Sec. Table A to Subpart D of Part 192

------------------------------------------------------------------------
                                                               pCi/liter
------------------------------------------------------------------------
Combined radium-226 and radium-228...........................          5

[[Page 31]]

 
Gross alpha-particle activity (excluding radon and uranium)..         15
------------------------------------------------------------------------



   Subpart E_Standards for Management of Thorium Byproduct Materials 
   Pursuant to Section 84 of the Atomic Energy Act of 1954, as Amended

    Source: 48 FR 45947, Oct. 7, 1983, unless otherwise noted.



Sec. 192.40  Applicability.

    This subpart applies to the management of thorium byproduct 
materials under section 84 of the Atomic Energy Act of 1954, as amended, 
during and following processing of thorium ores, and to restoration of 
disposal sites following any use of such sites under section 83(b)(1)(B) 
of the Act.



Sec. 192.41  Provisions.

    Except as otherwise noted in Sec. 192.41(e), the provisions of 
subpart D of this part, including Sec. Sec. 192.31, 192.32, and 192.33, 
shall apply to thorium byproduct material and:
    (a) Provisions applicable to the element uranium shall also apply to 
the element thorium;
    (b) Provisions applicable to radon-222 shall also apply to radon-
220; and
    (c) Provisions applicable to radium-226 shall also apply to radium-
228.
    (d) Operations covered under Sec. 192.32(a) shall be conducted in 
such a manner as to provide reasonable assurance that the annual dose 
equivalent does not exceed 25 millirems to the whole body, 75 millirems 
to the thyroid, and 25 millirems to any other organ of any member of the 
public as a result of exposures to the planned discharge of radioactive 
materials, radon-220 and its daughters excepted, to the general 
environment.
    (e) The provisions of Sec. 192.32(a) (3) and (4) do not apply to 
the management of thorium byproduct material.

[48 FR 45946, Oct. 7, 1983, as amended at 58 FR 60356, Nov. 15, 1993]



Sec. 192.42  Substitute provisions.

    The regulatory agency may, with the concurrence of EPA, substitute 
for any provisions of Sec. 192.41 of this subpart alternative 
provisions it deems more practical that will provide at least an 
equivalent level of protection for human health and the environment.



Sec. 192.43  Effective date.

    Subpart E shall be effective December 6, 1983.



            Sec. Appendix I to Part 192--Listed Constituents

Acetonitrile
Acetophenone (Ethanone, 1-phenyl)
2-Acetylaminofluorene (Acetamide, N-9H-fluoren-2-yl-)
Acetyl chloride
1-Acetyl-2-thiourea (Acetamide, N-(aminothioxymethyl)-)
Acrolein (2-Propenal)
Acrylamide (2-Propenamide)
Acrylonitrile (2-Propenenitrile)
Aflatoxins
Aldicarb (Propenal, 2-methyl-2-(methyl thio)-,O-
[(methylamino)carbonyl]oxime
Aldrin (1,4:5,8-Dimethanonaphthalene, 1,2,3,4,10,10-hexachloro-
1,4,4a,5,8,8a-
hexahydro(1[alpha],4[alpha],4a[beta],5[alpha],8[alpha],8[alpha][beta])-)
Allyl alcohol (2-Propen-1-ol)
Allyl chloride (1-Propane,3-chloro)
Aluminum phosphide
4-Aminobiphenyl ([1,1'-Biphenyl]-4-amine)
5-(Aminomethyl)-3-isoxazolol (3(2H)-Isoxazolone,5-(aminomethyl)-)
4-Aminopyridine (4-Pyridineamine)
Amitrole (lH-1,2,4-Triazol-3-amine)
Ammonium vanadate (Vanadic acid, ammonium salt)
Aniline (Benzenamine)
Antimony and compounds, N.O.S. \1\
---------------------------------------------------------------------------

    \1\ The abbreviation N.O.S. (not otherwise specified) signifies 
those members of the general class not specifically listed by name in 
this appendix.
---------------------------------------------------------------------------

Aramite (Sulfurous acid, 2-chloroethyl 2-[4-(1,1-dimethylethyl)phenoxy]-
1-methylethyl ester)
Arsenic and compounds, N.O.S.
Arsenic acid (Arsenic acid H3 AsO4)
Arsenic pentoxide (Arsenic oxide As2 O5)
Auramine (Benzamine, 4,4'-carbonimidoylbis[N,N-dimethyl-])
Azaserine (L-Serine, diazoacetate (ester))
Barium and compounds, N.O.S.
Barium cyanide
Benz[c]acridine (3,4-Benzacridine)
Benz[a]anthracene (1,2-Benzanthracene)
Benzal chloride (Benzene, dichloromethyl-)
Benzene (Cyclohexatriene)
Benzenearsonic acid (Arsenic acid, phenyl-)
Benzidine ([1,1'-Biphenyl]-4,4'-diamine)
Benzo[b]fluoranthene (Benz[e]acephananthrylene)

[[Page 32]]

Benzo[j]fluoranthene
Benzo[k]fluoranthene
Benzo[a]pyrene
p-Benzoquinone (2,5-Cyclohexadiene-1,4-dione)
Benzotrichloride (Benzene, (trichloro-methyl)-)
Benzyl chloride (Benzene, (chloromethyl)-)
Beryllium and compounds, N.O.S.
Bromoacetone (2-Propanone, 1-bromo-)
Bromoform (Methane, tribromo-)
4-Bromophenyl phenyl ether (Benzene, l-bromo-4-phenoxy-)
Brucine (Strychnidin-10-one, 2,3-dimeth-oxy-)
Butyl benzyl phthalate (1,2-Benzenedicarbozylic acid, butyl phenylmethyl 
ester)
Cacodylic acid (Arsinic acid, dimethyl)
Cadmium and compounds, N.O.S.
Calcium chromate (Chromic acid H2 CrO4, calcium 
salt)
Calcium cyanide (Ca(CN)2)
Carbon disulfide
Carbon oxyfluoride (Carbonic difluoride)
Carbon tetrachloride (Methane, tetrachloro-)
Chloral (Acetaldehyde, trichloro-)
Chlorambucil (Benzenebutanoic acid, 4-[bis(2-chloroethyl)amino]-)
Chlordane (4,7-Methano-1H-indene,1,2,4,5,6,7,8,8-octachloro-
2,3,3a,4,7,7a-hexahydro-)
Chlorinated benzenes, N.O.S.
Chlorinated ethane, N.O.S.
Chlorinated fluorocarbons, N.O.S.
Chlorinated naphthalene, N.O.S.
Chlorinated phenol, N.O.S.
Chlornaphazin (Naphthalenamine, N,N'-bis(2-chlorethyl)-)
Chloroacetaldehyde (Acetaldehyde, chloro-)
Chloroalkyl ethers, N.O.S.
p-Chloroaniline (Benzenamine, 4-chloro-)
Chlorobenzene (Benzene, chloro-)
Chlorobenzilate (Benzeneacetic acid, 4-chloro-[alpha]-(4-chlorophenyl)-
[alpha]-hydroxy-, ethyl ester)
p-Chloro-m-cresol (Phenol, 4-chloro-3-methyl)
2-Chloroethyl vinyl ether (Ethene, (2-chloroethoxy)-)
Chloroform (Methane, trichloro-)
Chloromethyl methyl ether (Methane, chloromethoxy-)
[beta]-Chloronapthalene (Naphthalene, 2-chloro-)
o-Chlorophenol (Phenol, 2-chloro-)
1-(o-Chlorophenyl)thiourea (Thiourea, (2-chlorophenyl-))
3-Chloropropionitrile (Propanenitrile, 3-chloro-)
Chromium and compounds, N.O.S.
Chrysene
Citrus red No. 2 (2-Naphthalenol, 1-[(2,5-dimethoxyphenyl)azo]-)
Coal tar creosote
Copper cyanide (CuCN)
Creosote
Cresol (Chresylic acid) (Phenol, methyl-)
Crotonaldehyde (2-Butenal)
Cyanides (soluble salts and complexes), N.O.S.
Cyanogen (Ethanedinitrile)
Cyanogen bromide ((CN)Br)
Cyanogen chloride ((CN)Cl)
Cycasin (beta-D-Glucopyranoside, (methyl-ONN-azoxy)methyl)
2-Cyclohexyl-4,6-dinitrophenol (Phenol, 2-cyclohexyl-4,6-dinitro-)
Cyclophosphamide (2H-1,3,2-Oxazaphosphorin-2-amine,N,N-bis(2-
chloroethyl) tetrahydro-,2-oxide)
2,4-D and salts and esters (Acetic acid, (2,4-dichlorophenoxy)-)
Daunomycin (5,12-Naphthacenedione,8-acetyl-10-[(3-amino-2,3,6-trideoxy-
[alpha]-Llyxo-hexopyranosyl)oxy]-7,8,9,10-tetrahydro-6,8,11-trihydroxy-
1-methoxy-,(8S-cis))
DDD (Benzene, 1,1'-(2,2-dichloroethylidene)bis[4-chloro-)
DDE (Benzene, 1,1-(dichloroethylidene)bis[4-chloro-)
DDT (Benzene, 1,1'-(2,2,2-trichloroethlyidene)bis[4-chloro-)
Diallate (Carbomothioic acid, bis(1-methylethyl)-,S-(2,3-dichloro-2-
propenyl) ester)
Dibenz[a,h]acridine
Dibenz[a,j]acridine
Dibenz[a,h]anthracene
7H-Dibenzo[c,g]carbazole
Dibenzo[a,e]pyrene (Naphtho[1,2,4,5-def)crysene)
Dibenzo[a,h]pyrene (Dibenzo[b,def]crysene)
Dibenzo[a,i]pyrene (Benzo[rst]pentaphene)
1,2-Dibromo-3-chloropropane (Propane, 1,2-dibromo-3-chloro-)
Dibutylphthalate (1,2-Benzenedicarboxylic acid, dibutyl ester)
o-Dichlorobenzene (Benzene, 1,2-dichloro-)
m-Dichlorobenzene (Benzene, 1,3-dichloro-)
p-Dichlorobenzene (Benzene, 1,4-dichloro-)
Dichlorobenzene, N.O.S. (Benzene; dichloro-, N.O.S.)
3,3'-Dichlorobenzidine ([1,1'-Biphenyl]-4,4'-diamine, 3,3'-dichloro-)
1,4-Dichloro-2-butene (2-Butene, 1,4-dichloro-)
Dichlorodifluoromethane (Methane, dichlorodifluoro-)
Dichloroethylene, N.O.S.
1,1-Dichloroethylene (Ethene, 1,1-dichloro-)
1,2-Dichloroethylene (Ethene, 1,2-dichloro-,(E)-)
Dichloroethyl ether (Ethane, 1,1'-oxybis[2-chloro-)
Dichloroisopropyl ether (Propane, 2,2'-oxybis[2-chloro-)
Dichloromethoxy ethane (Ethane, 1,1'-[methylenebis(oxy)bis[2-chloro-)
Dichloromethyl ether (Methane, oxybis[chloro-)
2,4-Dichlorophenol (Phenol, 2,4-dichloro-)
2,6-Dichlorophenol (Phenol, 2,6-dichloro-)
Dichlorophenylarsine (Arsinous dichloride, phenyl-)

[[Page 33]]

Dichloropropane, N.O.S. (Propane, dichloro-,)
Dichloropropanol, N.O.S. (Propanol, dichloro-,)
Dichloropropene; N.O.S. (1-Propane, dichloro-,)
1,3-Dichloropropene (1-Propene, 1,3-dichloro-)
Dieldrin (2,7:3,6-Dimethanonaphth[2,3-b]oxirene,3,4,5,6,9,9-hexachloro-
1a,2,2a,3,6,6a,7,7a,octahydro-
,(1a[alpha],2[beta],2a[alpha],3[beta],6[beta],6a[alpha],7[beta],7a[alpha]
)-)
1,2:3,4-Diepoxybutane (2,2'-Bioxirane)
Diethylarsine (Arsine, diethyl-)
1,4 Diethylene oxide (1,4-Dioxane)
Diethylhexyl phthalate (1,2-Benzenedicarboxlyic acid, bis(2-ethylhexl) 
ester)
N,N-Diethylhydrazine (Hydrazine, 1,2-diethyl)
O,O-Diethyl S-methyl dithiophosphate (Phosphorodithioic acid, O,O-
diethyl S-methyl ester)
Diethyl-p-nitrophenyl phosphate (Phosphoric acid, diethyl 4-nitrophenyl 
ester)
Diethyl phthalate (1,2-Benzenedicarboxylic acid, diethyl ester)
O,O-Diethyl O-pyrazinyl phosphorothioate (Phosphorothioic acid, O,O-
diethyl O-pyrazinyl ester)
Diethylstilbesterol (Phenol, 4,4'-(1,2-diethyl-1,2-ethenediyl)bis-,(E)-)
Dihydrosafrole (1,3-Benxodioxole, 5-propyl-)
Diisopropylfluorophosphate (DFP) (Phosphorofluoridic acid, bis(1-methyl 
ethyl) ester)
Dimethoate (Phosphorodithioic acid, O,O-dimethyl S-[2-(methylamino) 2-
oxoethyl] ester)
3,3'-Dimethoxybenzidine ([1,1'-Biphenyl]-4,4'-diamine, 3,3'-dimethoxy-)
p-Dimethylaminoazobenzene (Benzenamine, N,N-dimethyl-4-(phenylazo)-)
7,12-Dimethylbenz[a]anthracene (Benz[a]anthracene, 7,12-dimethyl-)
3,3'-Dimethylbenzidine ([1,1'-Biphenyl]-4,4'-diamine, 3,3'-dimethyl-)
Dimethylcarbamoyl chloride (carbamic chloride, dimethyl-)
1,1-Dimethylhydrazine (Hydrazine, 1,1-dimethyl-)
1,2-Dimethylhydrazine (Hydrazine, 1,2-dimethyl-)
[alpha],[alpha]-Dimethylphenethylamine (Benzeneethanamine, 
[alpha],[alpha]-dimethyl-)
2,4-Dimethylphenol (Phenol, 2,4-dimethyl-)
Dimethylphthalate (1,2-Benzenedicarboxylic acid, dimethyl ester)
Dimethyl sulfate (Sulfuric acid, dimethyl ester)
Dinitrobenzene, N.O.S. (Benzene, dinitro-)
4,6-Dinitro-o-cresol and salts (Phenol, 2-methyl-4,6-dinitro-)
2,4-Dinitrophenol (Phenol, 2,4-dinitro-)
2,4-Dinitrotoluene (Benzene, 1-methyl-2,4-dinitro-)
2,6-Dinitrotoluene (Benzene, 2-methyl-1,3-dinitro-)
Dinoseb (Phenol, 2-(1-methylpropyl)-4,6-dinitro-)
Di-n-octyl phthalate (1,2-Benzenedicarboxylic acid, dioctyl ester)
1,4-Dioxane (1,4-Diethyleneoxide)
Diphenylamine (Benzenamine, N-phenyl-)
1,2-Diphenylhydrazine (Hydrazine, 1,2-diphenyl-)
Di-n-propylnitrosamine (1-Propanamine,N-nitroso-N-propyl-)
Disulfoton (Phosphorodithioic acid, O,O-diethyl S-[2-(ethylthio)ethyl] 
ester)
Dithiobiuret (Thioimidodicarbonic diamide [(H2 
N)C(S)]2 NH)
Endosulfan (6,9,Methano-2,4,3-benzodioxathiepin,6,7,8,9,10,10-
hexachloro-1,5,5a,6,9,9ahexahydro,3-oxide)
Endothall (7-Oxabicyclo[2.2.1]heptane-2,3-dicarboxylic acid)
Endrin and metabolites (2,7:3,6-Dimethanonaphth[2,3-
b]oxirene,3,4,5,6,9,9-hexachloro1a,2,2a,3,6,6a,7,7a-octa-
hydro,(1a[alpha],2[beta],2a[beta],3[alpha],6[alpha],6a[beta],7[beta],7a[a
lpha])-)
Epichlorohydrin (Oxirane, (chloromethyl)-)
Epinephrine (1,2-Benzenediol,4-[1-hydroxy-2-(methylamino)ethyl]-,(R)-,)
Ethyl carbamate (urethane) (Carbamic acid, ethyl ester)
Ethyl cyanide (propanenitrile)
Ethylenebisdithiocarbamic acid, salts and esters (Carbamodithioic acid, 
1,2-Ethanediylbis-)
Ethylene dibromide (1,2-Dibromoethane)
Ethylene dichloride (1,2-Dichloroethane)
Ethylene glycol monoethyl ether (Ethanol, 2-ethoxy-)
Ethyleneimine (Aziridine)
Ethylene oxide (Oxirane)
Ethylenethiourea (2-Imidazolidinethione)
Ethylidene dichloride (Ethane, 1,1-Dichloro-)
Ethyl methacrylate (2-Propenoic acid, 2-methyl-, ethyl ester)
Ethylmethane sulfonate (Methanesulfonic acid, ethyl ester)
Famphur (Phosphorothioic acid, O-[4-[(dimethylamino)sulphonyl]phenyl] 
O,O-dimethyl ester)
Fluoranthene
Fluorine
Fluoroacetamide (Acetamide, 2-fluoro-)
Fluoroacetic acid, sodium salt (Acetic acid, fluoro-, sodium salt)
Formaldehyde (Methylene oxide)
Formic acid (Methanoic acid)
Glycidylaldehyde (Oxiranecarboxyaldehyde)
Halomethane, N.O.S.
Heptachlor (4,7-Methano-1H-indene, 1,4,5,6,7,8,8-heptachloro-3a,4,7,7a-
tetrahydro-)
Heptachlor epoxide ([alpha], [beta], and [gamma] isomers) (2,5-Methano-
2H-indeno[1,2-b]-oxirene, 2,3,4,5,6,7,7-heptachloro-1a,1b,5,5a,6,6a-
hexa-hydro-
,(1a[alpha],1b[beta],2[alpha],5[alpha],5a[beta],6[beta],6a[alpha])-)
Hexachlorobenzene (Benzene, hexachloro-)
Hexachlorobutadiene (1,3-Butadiene, 1,1,2,3,4,4-hexachloro-)

[[Page 34]]

Hexachlorocyclopentadiene (1,3-Cyclopentadiene, 1,2,3,4,5,5-hexachloro-)
Hexachlorodibenzofurans
Heptachlorodibenzo-p-dioxins
Hexachloroethane (Ethane, hexachloro-)
Hexachlorophene (phenol, 2,2'-Methylenebis[3,4,6-trichloro-)
Hexachloropropene (1-Propene, 1,1,2,3,3,3-hexachloro-)
Hexaethyl tetraphosphate (Tetraphosphoric acid, hexaethyl ester)
Hydrazine
Hydrocyanic acid
Hydrofluoric acid
Hydrogen sulfide (H2 S)
Indeno(1,2,3-cd)pyrene
Isobutyl alcohol (1-Propanol, 2-methyl-)
Isodrin (1,4,5,8-Dimethanonaphthalene, 1,2,3,4,10,10-hexachloro-
1,4,4a,5,8,8a-hexahydro, 
(1[alpha],4[alpha],4a[beta],5[beta],8[beta],8a[beta])-)
Isosafrole (1,3-Benzodioxole, 5-(1-propenyl)-)
Kepone (1,3,4-Metheno-2H-cyclobuta[cd]pentalen-2-one, 
1,1a,3,3a,4,5,5,5a,5b,6-decachlorooctahydro-)
Lasiocarpine (2-Butenoic acid, 2-methyl-,7-[[2,3-dihydroxy-2-(1-
methoxyethyl)-3-methyl-1-oxobutoxy]methyl]-2,3,5,7a-tetrahydro-1H-
pyrrolizin-l-yl ester)
Lead and compounds, N.O.S.
Lead acetate (Acetic acid, lead(2+) salt)
Lead phosphate (Phosphoric acid, lead(2+) salt(2:3))
Lead subacetate (Lead, bis(acetato-O)tetrahydroxytri-)
Lindane (Clohexane, 1,2,3,4,5,6-hexachloro-, 
(1[alpha],2[alpha],3[beta],4[alpha],5[alpha],6[beta])-)
Maleic anhydride (2,5-Furandione)
Maleic hydrazide (3,6-Pyridazinedione, 1,2-dihydro-)
Malononitrile (Propanedinitrile)
Melphalan (L-Phenylalanine, 4-[bis(2-chloroethyl)aminol]-)
Mercury and compounds, N.O.S.
Mercury fulminate (Fulminic acid, mercury(2+) salt)
Methacrylonitrile (2-Propenenitrile, 2-methyl-)
Methapyrilene (1,2-Ethanediamine, N,N-dimethyl-N'-2-pyridinyl-N'-(2-
thienylmethyl)-)
Metholmyl (Ethamidothioic acid, N-[[(methylamino)carbonyl]oxy]thio-, 
methyl ester)
Methoxychlor (Benzene, 1,1'-(2,2,2-trichloroethylidene)bis[4-methoxy-)
Methyl bromide (Methane, bromo-)
Methyl chloride (Methane, chloro-)
Methyl chlorocarbonate (Carbonchloridic acid, methyl ester)
Methyl chloroform (Ethane, 1,1,1-trichloro-)
3-Methylcholanthrene (Benz[j]aceanthrylene, 1,2-dihydro-3-methyl-)
4,4'-Methylenebis(2-chloroaniline) (Benzenamine, 4,4'-methylenebis(2-
chloro-)
Methylene bromide (Methane, dibromo-)
Methylene chloride (Methane, dichloro-)
Methyl ethyl ketone (MEK) (2-Butanone)
Methyl ethyl ketone peroxide (2-Butanone, peroxide)
Methyl hydrazine (Hydrazine, methyl-)
Methyl iodide (Methane, iodo-)
Methyl isocyanate (Methane, isocyanato-)
2-Methyllactonitrile (Propanenitrile, 2-hydroxy-2-methyl-)
Methyl methacrylate (2-Propenoic acid, 2-methyl-, methyl ester)
Methyl methanesulfonate (Methanesulfonic acid, methyl ester)
Methyl parathion (Phosphorothioic acid, O,O-dimethyl O-(4-nitrophenyl) 
ester)
Methylthiouracil (4(1H)Pyrimidinone, 2,3-dihydro-6-methyl-2-thioxo-)
Mitomycin C (Azirino[2',3':3,4]pyrrolo[1,2-a]indole-4,7-dione,6-amino-8-
[[(aminocarbonyl) oxy]methyl]-1,1a,2,8,8a,8b-hexahydro-8a-methoxy-5-
methy-, [1aS-(1a[alpha],8[beta],8a[alpha],8b[alpha])]-)
MNNG (Guanidine, N-methyl-N'-nitro-N-nitroso-)
Mustard gas (Ethane, 1,1'-thiobis[2-chloro-)
Naphthalene
1,4-Naphthoquinone (1,4-Naphthalenedione)
[alpha]-Naphthalenamine (1-Naphthylamine)
[beta]-Naphthalenamine (2-Naphthylamine)
[alpha]-Naphthylthiourea (Thiourea, 1-naphthalenyl-)
Nickel and compounds, N.O.S.
Nickel carbonyl (Ni(CO)4 (T-4)-)
Nickel cyanide (Ni(CN)2)
Nicotine and salts (Pyridine, 3-(1-methyl-2-pyrrolidinyl)-, (S)-)
Nitric oxide (Nitrogen oxide NO)
p-Nitroaniline (Benzenamine, 4-nitro-)
Nitrobenzene (Benzene, nitro-)
Nitrogen dioxide (Nitrogen oxide NO2)
Nitrogen mustard, and hydrochloride salt (Ethanamine, 2-chloro-N-(2-
chloroethyl)-N-methyl-)
Nitrogen mustard N-oxide and hydrochloride salt (Ethanamine, 2chloro-N-
(2-chloroethyl)N-methyl-, N-oxide)
Nitroglycerin (1,2,3-Propanetriol, trinitrate)
p-Nitrophenol (Phenol, 4-nitro-)
2-Nitropropane (Propane, 2-nitro-)
Nitrosamines, N.O.S.
N-Nitrosodi-n-butylamine (l-Butanamine, N-butyl-N-nitroso-)
N-Nitrosodiethanolamine (Ethanol, 2,2'-(nitrosoimino)bis-)
N-Nitrosodiethylamine (Ethanamine, N-ethyl-N-nitroso-1)
N-Nitrosodimethylamine (Methanamine, N-methyl-N-nitroso-)
N-Nitroso-N-ethylurea (Urea, N-ethyl-N-nitroso-)
N-Nitrosomethylethylamine (Ethanamine, N-methyl-N-nitroso-)
N-Nitroso-N-methylurea (Urea, N-methyl-N-nitroso-)
N-Nitroso-N-methylurethane (Carbamic acid, methylnitroso-, ethyl ester)
N-Nitrosomethylvinylamine (Vinylamine, N-methyl-N-nitroso-)

[[Page 35]]

N-Nitrosomorpholine (Morpholine, 4-nitroso-)
N-Nitrosonornicotine (Pyridine, 3-(1-nitroso-2-pyrrolidinyl)-, (S)-)
N-Nitrosopiperidine (Piperidine, 1-nitroso-)
Nitrosopyrrolidine (Pyrrolidine, 1-nitroso-)
N-Nitrososarcosine (Glycine, N-methyl-N-nitroso-)
5-Nitro-o-toluidine (Benzenamine, 2-methyl-5-nitro-)
Octamethylpyrophosphoramide (Diphosphoramide, octamethyl-)
Osmium tetroxide (Osmium oxide OsO4, (T-4)-)
Paraldehyde (1,3,5-Trioxane, 2,4,6-trimethyl-)
Parathion (Phosphorothioic acid, O,O-diethyl O-(4-nitrophenyl) ester)
Pentachlorobenzene (Benzene, pentachloro-)
Pentachlorodibenzo-p-dioxins
Pentachlorodibenzofurans
Pentachloroethane (Ethane, pentachloro-)
Pentachloronitrobenzene (PCNB) (Benzene, pentachloronitro-)
Pentachlorophenol (Phenol, pentachloro-)
Phenacetin (Acetamide, N-(4-ethoxyphenyl)-)
Phenol
Phenylenediamine (Benzenediamine)
Phenylmercury acetate (Mercury, (acetato-O)phenyl-)
Phenylthiourea (Thiourea, phenyl-)
Phosgene (Carbonic dichloride)
Phosphine
Phorate (Phosphorodithioic acid, O,O-diethyl S-[(ethylthiomethyl] ester)
Phthalic acid esters, N.O.S.
Phthalic anhydride (1,3-isobenzofurandione)
2-Picoline (Pyridine, 2-methyl-)
Polychlorinated biphenyls, N.O.S.
Potassium cyanide (K(CN))
Potassium silver cyanide (Argentate(l-), bis(cyano-C)-, potassium)
Pronamide (Benzamide, 3,5-dichloro-N-(1,1-dimethyl-2-propynyl)-)
1,3-Propane sultone (1,2-Oxathiolane, 2,2-dioxide)
n-Propylamine (1-Propanamine)
Propargyl alcohol (2-Propyn-1-ol)
Propylene dichloride (Propane, 1,2-dichloro-)
1,2-Propylenimine (Aziridine, 2-methyl-)
Propylthiouracil (4(1H)-Pyrimidinone, 2,3-dihydro-6-propyl-2-thioxo-)
Pyridine
Reserpinen (Yohimban-16-carboxylic acid, 11,17-dimethoxy-18-[(3,4,5-
trimethoxybenzoyl)oxy]-smethyl ester, (3[beta],16 
[beta],17[alpha],18[beta],20[alpha])-)
Resorcinol (1,3-Benzenediol)
Saccharin and salts (1,2-Benzisothiazol-3(2H)-one, 1,1-dioxide)
Safrole (1,3-Benzodioxole, 5-(2-propenyl)-)
Selenium and compounds, N.O.S.
Selenium dioxide (Selenious acid)
Selenium sulfide (SeS2)
Selenourea
Silver and compounds, N.O.S.
Silver cyanide (Silver cyanide Ag(CN))
Silvex (Propanoic acid, 2-(2,4,5-trichlorophenoxy)-)
Sodium cyanide (Sodium cyanide Na(CN))
Streptozotocin (D-Glucose, 2-deoxy-2-
[[methylnitrosoamino)carbonyl]amino]-)
Strychnine and salts (Strychnidin-10-one)
TCDD (Dibenzo[b,e][1,4]dioxin, 2,3,7,8-tetrachloro-)
1,2,4,5-Tetrachlorobenzene (Benzene, 1,2,4,5-tetrachloro-)
Tetrachlorodibenzo-p-dioxins
Tetrachlorodibenxofurans
Tetrachloroethane, N.O.S. (Ethane, tetrachloro-, N.O.S.)
1,1,1,2-Tetrachloroethane (Ethane, 1,1,1,2-tetrachloro-)
1,1,2,2-Tetrachloroethane (Ethane, 1,1,2,2-tetrachloro-)
Tetrachloroethylene (Ethene, tetrachloro-)
2,3,4,6-Tetrachlorophenol (Phenol, 2,3,4,6-tetrachloro-)
Tetraethyldithiopyrophosphate (Thiodiphosphoric acid, tetraethyl ester)
Tetraethyl lead (Plumbane, tetraethyl-)
Tetraethyl pyrophosphate (Diphosphoric acid, tetraethyl ester)
Tetranitromethane (Methane, tetranitro-)
Thallium and compounds, N.O.S.
Thallic oxide (Thallium oxide Tl2 O3)
Thallium (I) acetate (Acetic acid, thallium (1+) salt)
Thallium (I) carbonate (Carbonic acid, dithallium (1+) salt)
Thallium (I) chloride (Thallium chloride TlCl)
Thallium (I) nitrate (Nitric acid, thallium (1+) salt)
Thallium selenite (Selenius acid, dithallium (1+) salt)
Thallium (I) sulfate (Sulfuric acid, thallium (1+) salt)
Thioacetamide (Ethanethioamide)
3,Thiofanox (2-Butanone, 3,3-dimethyl-1-(methylthio)-, O-
[(methylamino)carbonyl] oxime)
Thiomethanol (Methanethiol)
Thiophenol (Benzenethiol)
Thiosemicarbazide (Hydrazinecarbothioamide)
Thiourea
Thiram (Thioperoxydicarbonic diamide [(H2 
N)C(S)]2S2, tetramethyl-)
Toluene (Benzene, methyl-)
Toluenediamine (Benzenediamine, ar-methyl-)
Toluene-2,4-diamine (1,3-Benzenediamine, 4-methyl-)
Toluene-2,6-diamine (1,3-Benzenediamine, 2-methyl-)
Toluene-3,4-diamine (1,2-Benzenediamine, 4-methyl-)
Toluene diisocyanate (Benzene, 1,3-diisocyanatomethyl-)
o-Toluidine (Benzenamine, 2-methyl-)
o-Toluidine hydrochloride (Benzenamine, 2-methyl-, hydrochloride)
p-Toluidine (Benzenamine, 4-methyl-)

[[Page 36]]

Toxaphene
1,2,4-Trichlorobenzene (Benzene, 1,2,4-trichloro-)
1,1,2-Trichloroethane (Ethane, 1,1,2-trichloro-)
Trichloroethylene (Ethene,trichloro-)
Trichloromethanethiol (Methanethiol, trichloro-)
Trichloromonofluoromethane (Methane, trichlorofluoro-)
2,4,5-Trichlorophenol (Phenol, 2,4,5-tri chlo-ro-)
2,4,6-Trichlorophenol (Phenol, 2,4,6-tri chlo-ro-)
2,4,5-T (Acetic acid, 2,4,5- trichloro-phenoxy-)
Trichloropropane, N.O.S.
1,2,3-Trichloropropane (Propane, 1,2,3-trichloro-)
O,O,O-Triethyl phosphorothioate (Phosphorothioic acid, O,O,O-triethyl 
ester)
Trinitrobenzene (Benzene, 1,3,5-trinitro-)
Tris(1-aziridinyl)phosphine sulfide (Aziridine, 
1,1',1''phosphinothioylidyne-tris-))
Tris(2,3-dibromopropyl) phosphate (1-Propanol, 2,3-dibromo-, phosphate 
(3:1))
Trypan blue (2,7-Naphthalendisulfonic acid, 3,3'-[(3,3'-dimethyl[1,1'-
biphenyl]-4,4'-diyl)bis(azo)]bis(5-amino-4-hydroxy-, tetrasodium salt)
Uracil mustard (2,4-(1H,3H)-Pyrimidinedione, 5-[bis(2-
chloroethyl)amino]-)
Vanadium pentoxide (Vanadium oxide V2 O5)
Vinyl chloride (Ethene, chloro-)
Wayfarin (2H-1-Benzopyran-2-one, 4-hydroxy-3-(3-oxo-1-phenlybutyl)-)
Zinc cyanide (Zn(CN)2)
Zinc phosphide (Zn3 P2)

[60 FR 2868, Jan. 11, 1995]



PART 194_CRITERIA FOR THE CERTIFICATION AND RE-CERTIFICATION OF THE
WASTE ISOLATION PILOT PLANT'S COMPLIANCE WITH THE 40 CFR PART 191 

DISPOSAL REGULATIONS--Table of Contents



                      Subpart A_General Provisions

Sec.
194.1 Purpose, scope, and applicability.
194.2 Definitions.
194.3 Communications.
194.4 Conditions of compliance certification.
194.5 Publications incorporated by reference.
194.6 Alternative provisions.
194.7 Effective date.
194.8 Approval process for waste shipment from waste generator sites for 
          disposal at the WIPP.

  Subpart B_Compliance Certification and Re-certification Applications

194.11 Completeness and accuracy of compliance applications.
194.12 Submission of compliance applications.
194.13 Submission of reference materials.
194.14 Content of compliance certification application.
194.15 Content of compliance re-certification application(s).

         Subpart C_Compliance Certification and Re-certification

                          General Requirements

194.21 Inspections.
194.22 Quality assurance.
194.23 Models and computer codes.
194.24 Waste characterization.
194.25 Future state assumptions.
194.26 Expert judgment.
194.27 Peer review.

                        Containment Requirements

194.31 Application of release limits.
194.32 Scope of performance assessments.
194.33 Consideration of drilling events in performance assessments.
194.34 Results of performance assessments.

                         Assurance Requirements

194.41 Active institutional controls.
194.42 Monitoring.
194.43 Passive institutional controls.
194.44 Engineered barriers.
194.45 Consideration of the presence of resources.
194.46 Removal of waste.

           Individual and Ground-water Protection Requirements

194.51 Consideration of protected individual.
194.52 Consideration of exposure pathways.
194.53 Consideration of underground sources of drinking water.
194.54 Scope of compliance assessments.
194.55 Results of compliance assessments.

                     Subpart D_Public Participation

194.61 Advance notice of proposed rulemaking for certification.
194.62 Notice of proposed rulemaking for certification.
194.63 Final rule for certification.
194.64 Documentation of continued compliance.
194.65 Notice of proposed rulemaking for modification or revocation.
194.66 Final rule for modification or revocation.
194.67 Dockets.

Appendix A to Part 194--Certification of the Waste Isolation Pilot 
          Plant's

[[Page 37]]

          Compliance with the 40 CFR Part 191 Disposal Regulations and 
          the 40 CFR Part 194 Compliance Criteria

    Authority: Pub. L. 102-579, 106 Stat. 4777, as amended by Pub. L. 
104-201,110 Stat. 2422; Reorganization Plan No. 3 of 1970, 35 FR 15623, 
Oct. 6, 1970, 5 U.S.C. app. 1; Atomic Energy Act of 1954, as amended, 42 
U.S.C. 2011-2296 and 10101-10270.

    Source: 61 FR 5235, Feb. 9, 1996, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 194.1  Purpose, scope, and applicability.

    This part specifies criteria for the certification or any re-
certification, or subsequent actions relating to the terms or conditions 
of certification of the Department of Energy's Waste Isolation Pilot 
Plant's compliance with the disposal regulations found at part 191 of 
this chapter and pursuant to section 8(d)(1) and section 8(f), 
respectively, of the WIPP LWA. The compliance certification application 
submitted pursuant to section 8(d)(1) of the WIPP LWA and any compliance 
re-certification application submitted pursuant to section 8(f) of the 
WIPP LWA shall comply with the requirements of this part.



Sec. 194.2  Definitions.

    Unless otherwise indicated in this part, all terms have the same 
meaning as in part 191 of this chapter.
    Acceptable knowledge means any information about the process used to 
generate waste, material inputs to the process, and the time period 
during which the waste was generated, as well as data resulting from the 
analysis of waste, conducted prior to or separate from the waste 
certification process authorized by EPA's Certification Decision, to 
show compliance with Condition 3 of the certification decision (appendix 
A of this part).
    Administrator's authorized representative means the director in 
charge of radiation programs at the Agency.
    Certification means any action taken by the Administrator pursuant 
to section 8(d)(1) of the WIPP LWA.
    Compliance application(s) means the compliance certification 
application submitted to the Administrator pursuant to section 8(d)(1) 
of the WIPP LWA or any compliance re-certification applications 
submitted to the Administrator pursuant to section 8(f) of the WIPP LWA.
    Compliance assessment(s) means the analysis conducted to determine 
compliance with Sec. 191.15, and part 191, subpart C of this chapter.
    Delaware Basin means those surface and subsurface features which lie 
inside the boundary formed to the north, east and west of the disposal 
system by the innermost edge of the Capitan Reef, and formed, to the 
south, by a straight line drawn from the southeastern point of the Davis 
Mountains to the most southwestern point of the Glass Mountains.
    Deep drilling means those drilling events in the Delaware Basin that 
reach or exceed a depth of 2,150 feet below the surface relative to 
where such drilling occurred.
    Department means the United States Department of Energy.
    Disposal regulations means part 191, subparts B and C of this 
chapter.
    Management systems review means the qualitative assessment of a data 
collection operation or organization(s) to establish whether the 
prevailing quality management structure, policies, practices, and 
procedures are adequate to ensure that the type and quality of data 
needed are obtained.
    Minor alternative provision means an alternative provision to the 
Compliance Criteria that only clarifies an existing regulatory 
provision, or does not substantively alter the existing regulatory 
requirements.
    Modification means action(s) taken by the Administrator that alters 
the terms or conditions of certification pursuant to section 8(d)(1) of 
the WIPP LWA. Modification of any certification shall comply with this 
part and part 191 of this chapter.
    Population of CCDFs means all possible complementary, cumulative 
distribution functions (CCDFs) that can be generated from all disposal 
system parameter values used in performance assessments.
    Population of estimates means all possible estimates of radiation 
doses and radionuclide concentrations that can be generated from all 
disposal system

[[Page 38]]

parameter values used in compliance assessments.
    Quality assurance means those planned and systematic actions 
necessary to provide adequate confidence that the disposal system will 
comply with the disposal regulations set forth in part 191 of this 
chapter. Quality assurance includes quality control, which comprises 
those actions related to the physical characteristics of a material, 
structure, component, or system that provide a means to control the 
quality of the material, structure, component, or system to 
predetermined requirements.
    Re-certification means any action taken by the Administrator 
pursuant to section 8(f) of the WIPP LWA.
    Regulatory time frame means the time period beginning at disposal 
and ending 10,000 years after disposal.
    Revocation means any action taken by the Administrator to terminate 
the certification pursuant to section 8(d)(1) of the WIPP LWA.
    Secretary means the Secretary of Energy.
    Shallow drilling means those drilling events in the Delaware Basin 
that do not reach a depth of 2,150 feet below the surface relative to 
where such drilling occurred.
    Suspension means any action taken by the Administrator to withdraw, 
for a limited period of time, the certification pursuant to section 
8(d)(1) of the WIPP LWA.
    Waste means the radioactive waste, radioactive material and 
coincidental material subject to the requirements of part 191 of this 
chapter.
    Waste characteristic means a property of the waste that has an 
impact on the containment of waste in the disposal system.
    Waste component means an ingredient of the total inventory of the 
waste that influences a waste characteristic.
    WIPP means the Waste Isolation Pilot Plant, as authorized pursuant 
to section 213 of the Department of Energy National Security and 
Military Applications of Nuclear Energy Authorization Act of 1980 (Pub. 
L. 96-164; 93 Stat. 1259, 1265).
    WIPP LWA means the Waste Isolation Pilot Plant Land Withdrawal Act 
of 1992 (Pub.L. 102-579, 106 Stat. 4777).

[61 FR 5235, Feb. 9, 1996, as amended at 63 FR 27404, May 18, 1998; 69 
FR 42580, July 16, 2004]



Sec. 194.3  Communications.

    (a) Compliance application(s) shall be:
    (1) Addressed to the Administrator; and
    (2) Signed by the Secretary.
    (b) Communications and reports concerning the criteria in this part 
shall be:
    (1) Addressed to the Administrator or the Administrator's authorized 
representative; and
    (2) Signed by the Secretary or the Secretary's authorized 
representative.



Sec. 194.4  Conditions of compliance certification.

    (a) Any certification of compliance issued pursuant to section 
8(d)(1) of the WIPP LWA may include such conditions as the Administrator 
finds necessary to support such certification.
    (b) Whether stated therein or not, the following conditions shall 
apply in any such certification:
    (1) The certification shall be subject to modification, suspension 
or revocation by the Administrator. Any suspension of the certification 
shall be done at the discretion of the Administrator. Any modification 
or revocation of the certification shall be done by rule pursuant to 5 
U.S.C. 553. If the Administrator revokes the certification, the 
Department shall retrieve, as soon as practicable and to the extent 
practicable, any waste emplaced in the disposal system.
    (2) Any time after the Administrator issues a certification, the 
Administrator or the Administrator's authorized representative may 
submit a written request to the Department for information to enable the 
Administrator to determine whether the certification should be modified, 
suspended or revoked. Unless otherwise specified by the Administrator or 
the Administrator's authorized representative, the Department shall 
submit such information to the Administrator or the Administrator's 
authorized representative

[[Page 39]]

within 30 calendar days of receipt of the request.
    (3) Any time after the Administrator issues a certification, the 
Department shall report any planned or unplanned changes in activities 
or conditions pertaining to the disposal system that differ 
significantly from the most recent compliance application.
    (i) The Department shall inform the Administrator, in writing, prior 
to making such a planned change in activity or disposal system 
condition.
    (ii) In the event of an unplanned change in activity or condition, 
the Department shall immediately cease emplacement of waste in the 
disposal system if the Department determines that one or more of the 
following conditions is true:
    (A) The containment requirements established pursuant to Sec. 
191.13 of this chapter have been or are expected to be exceeded;
    (B) Releases from already-emplaced waste lead to committed effective 
doses that are or are expected to be in excess of those established 
pursuant to Sec. 191.15 of this chapter. For purposes of this paragraph 
(b)(3)(ii)(B), emissions from operations covered pursuant to part 191, 
subpart A of this chapter are not included; or
    (C) Releases have caused or are expected to cause concentrations of 
radionuclides or estimated doses due to radionuclides in underground 
sources of drinking water in the accessible environment to exceed the 
limits established pursuant to part 191, subpart C of this chapter.
    (iii) If the Department determines that a condition described in 
paragraph (b)(3)(ii) of this section has occurred or is expected to 
occur, the Department shall notify the Administrator, in writing, within 
24 hours of the determination. Such notification shall, to the extent 
practicable, include the following information:
    (A) Identification of the location and environmental media of the 
release or the expected release;
    (B) Identification of the type and quantity of waste (in activity in 
curies of each radionuclide) released or expected to be released;
    (C) Time and date of the release or the estimated time of the 
expected release;
    (D) Assessment of the hazard posed by the release or the expected 
release; and
    (E) Additional information requested by the Administrator or the 
Administrator's authorized representative.
    (iv) The Department may resume emplacement of waste in the disposal 
system upon written notification that the suspension has been lifted by 
the Administrator.
    (v) If the Department discovers a condition or activity that differs 
significantly from what is indicated in the most recent compliance 
application, but does not involve conditions or activities listed in 
paragraph (b)(3)(ii) of this section, then the difference shall be 
reported, in writing, to the Administrator within 10 calendar days of 
its discovery.
    (vi) Following receipt of notification, the Administrator will 
notify the Secretary in writing whether any condition or activity 
reported pursuant to paragraph (b)(3) this section:
    (A) Does not comply with the terms of the certification; and, if it 
does not comply,
    (B) Whether the compliance certification must be modified, suspended 
or revoked. The Administrator or the Administrator's authorized 
representative may request additional information before determining 
whether modification, suspension or revocation of the compliance 
certification is required.
    (4) Not later than six months after the Administrator issues a 
certification, and at least annually thereafter, the Department shall 
report to the Administrator, in writing, any changes in conditions or 
activities pertaining to the disposal system that were not required to 
be reported by paragraph (b)(3) of this section and that differ from 
information contained in the most recent compliance application.



Sec. 194.5  Publications incorporated by reference.

    (a) The following publications are incorporated into this part by 
reference:
    (1) U.S. Nuclear Regulatory Commission, NUREG-1297 ``Peer Review for

[[Page 40]]

High-Level Nuclear Waste Repositories,'' published February 1988; 
incorporation by reference (IBR) approved for Sec. Sec. 194.22, 194.23 
and 194.27.
    (2) American Society of Mechanical Engineers (ASME) Nuclear Quality 
Assurance (NQA) Standard, NQA-1-1989 edition, ``Quality Assurance 
Program Requirements for Nuclear Facilities;'' IBR approved for Sec. 
194.22.
    (3) ASME NQA-2a-1990 addenda, part 2.7, to ASME NQA-2-1989 edition 
``Quality Assurance Requirements for Nuclear Facility Applications;'' 
IBR approved for Sec. 194.22 and Sec. 194.23.
    (4) ASME NQA-3-1989 edition, ``Quality Assurance Program 
Requirements for the Collection of Scientific and Technical Information 
for Site Characterization of High-Level Nuclear Waste Repositories'' 
(excluding section 2.1 (b) and (c)); IBR approved for Sec. 194.22.
    (b) The publications listed in paragraph (a) of this section were 
approved for incorporation by reference by the Director of the Federal 
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies 
may be inspected or obtained from the Air Docket, Docket No. A-92-56, 
room M1500 (LE131), U.S. Environmental Protection Agency, 1200 
Pennsylvania Ave., NW., Washington, DC 20460, or copies may be inspected 
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. or copies may be obtained from 
the following addresses:
    (1) For ASME standards, contact American Society of Mechanical 
Engineers, 22 Law Drive, P.O. Box 2900, Fairfield, NJ 07007-2900, phone 
1-800-843-2763.
    (2) For Nuclear Regulatory Commission documents, contact Division of 
Information Support Services, Distribution Service, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555, or contact National 
Technical Information Service, 5285 Port Royal Road, Springfield, VA 
22161, phone 703-487-4650.

[61 FR 5235, Feb. 9, 1996, as amended at 65 FR 47325, Aug. 2, 2000; 69 
FR 18803, Apr. 9, 2004]



Sec. 194.6  Alternative provisions.

    The Administrator may, by rule pursuant to 5 U.S.C. 553, substitute 
for any of the provisions of this part alternative provisions, or minor 
alternative provisions, in accordance with the following procedures:
    (a) Alternative provisions may be substituted after:
    (1) Alternative provisions have been proposed for public comment in 
the Federal Register together with information describing how the 
alternative provisions comport with the disposal regulations, the 
reasons why the existing provisions of this part appear inappropriate, 
and the costs, risks and benefits of compliance in accordance with the 
alternative provisions;
    (2) A public comment period of at least 120 days has been completed 
and public hearings have been held in New Mexico;
    (3) The public comments received have been fully considered; and
    (4) A notice of final rulemaking is published in the Federal 
Register.
    (b) Minor alternative provisions may be substituted after:
    (1) The minor alternative provisions have been proposed for public 
comment in the Federal Register together with information describing how 
they comport with the disposal regulations, the reasons why the existing 
provisions of this part appear inappropriate, and the benefit of 
compliance in accordance with the minor alternative provision;
    (2) A public comment period of at least 30 days has been completed 
for the minor alternative provisions and the public comments received 
have been fully considered;
    (3) A notice of final rulemaking is published in the Federal 
Register for the minor alternative provisions.

[69 FR 42581, July 16, 2004]



Sec. 194.7  Effective date.

    The criteria in this part shall be effective on April 9, 1996. The 
incorporation by reference of certain publications listed in the 
criteria is approved by the Director of the Federal Register as of April 
9, 1996.

[[Page 41]]



Sec. 194.8  Approval process for waste shipment from waste generator
sites for disposal at the WIPP.

    (a) Quality Assurance Programs at Waste Generator Sites. The Agency 
will determine compliance with requirements for site-specific quality 
assurance programs as set forth below:
    (1) Upon submission by the Department of a site-specific quality 
assurance program plan the Agency will evaluate the plan to determine 
whether it establishes the applicable Nuclear Quality Assurance (NQA) 
requirements of Sec. 194.22(a)(1) for the items and activities of 
Sec. Sec. 194.22(a)(2)(i), 194.24(c)(3) and 194.24(c)(5). The program 
plan and other documentation submitted by the Department will be placed 
in the dockets described in Sec. 194.67.
    (2) The Agency will conduct a quality assurance audit or an 
inspection of a Department quality assurance audit at the relevant site 
for the purpose of verifying proper execution of the site-specific 
quality assurance program plan. The Agency will publish a notice in the 
Federal Register announcing a scheduled inspection or audit. In that or 
another notice, the Agency will also solicit public comment on the 
quality assurance program plan and appropriate Department documentation 
described in paragraph (a)(1) of this section. A public comment period 
of at least 30 days will be allowed.
    (3) The Agency's written decision regarding compliance with the 
requisite quality assurance requirements at a waste generator site will 
be conveyed in a letter from the Administrator's authorized 
representative to the Department. No such compliance determination shall 
be granted until after the end of the public comment period described in 
paragraph (a)(2) of this section. A copy of the Agency's compliance 
determination letter will be placed in the public dockets in accordance 
with Sec. 194.67. The results of any inspections or audits conducted by 
the Agency to evaluate the quality assurance programs described in 
paragraph (a)(1) of this section will also be placed in the dockets 
described in Sec. 194.67.
    (4) Subsequent to any positive determination of compliance as 
described in paragraph (a)(3) of this section, the Agency intends to 
conduct inspections, in accordance with Sec. Sec. 194.21 and 194.22(e), 
to confirm the continued compliance of the programs approved under 
paragraphs (a)(2) and (a)(3) of this section. The results of such 
inspections will be made available to the public through the Agency's 
public dockets, as described in Sec. 194.67.
    (b) Waste characterization programs at transuranic waste sites. The 
Agency will establish compliance with Condition 3 of the certification 
using the following process:
    (1) DOE will implement waste characterization programs and processes 
in accordance with Sec. 194.24(c)(4) to confirm that the total amount 
of each waste component that will be emplaced in the disposal system 
will not exceed the upper limiting value or fall below the lower 
limiting value described in the introductory text of Sec. 194.24(c). 
Waste characterization processes will include the collection and use of 
acceptable knowledge; destructive and/or nondestructive techniques for 
identifying and measuring waste components; and the validation, control, 
and transmittal to the WIPP Waste Information System database of waste 
characterization data, in accordance with Sec. 194.24(c)(4).
    (2) The Agency will verify the compliance of waste characterization 
programs and processes identified in paragraph (b)(1) of this section at 
sites without EPA approval prior to October 14, 2004, using the 
following process:
    (i) DOE will notify EPA by letter that a transuranic waste site is 
prepared to ship waste to the WIPP and has established adequate waste 
characterization processes and programs. DOE also will provide the 
relevant waste characterization program plans and documentation. EPA may 
request additional information from DOE.
    (ii) EPA will conduct a baseline compliance inspection at the site 
to verify that adequate waste characterization program plans and 
technical procedures have been established, and that those plans and 
procedures are effectively implemented. The inspection will include a 
demonstration or test by the site of the waste characterization 
processes identified in paragraph (b)(1) of this section. If an 
inspection does not lead to approval, we will send an

[[Page 42]]

inspection report to DOE identifying deficiencies and place the report 
in the public docket described in Sec. 194.67. More than one inspection 
may be necessary to resolve compliance issues.
    (iii) The Agency will announce in the Federal Register a proposed 
Baseline Compliance Decision to accept the site's compliance with Sec. 
194.24(c)(4). We will place the inspection report(s) and any supporting 
documentation in the public docket described in Sec. 194.67. The site 
inspection report supporting the proposal will describe any limitations 
on approved waste streams or waste characterization processes. It will 
also identify (through tier designations in accordance with paragraph 
(b)(4) of this section) what changes to the approved waste 
characterization processes must be reported to and approved by EPA 
before they can be implemented. In the notice, we will solicit public 
comment (for a minimum of 45 days) on the proposed Baseline Compliance 
Decision, including any limitations and the tier designations for future 
changes or expansions to the site's waste characterization program.
    (iv) Our written decision regarding compliance with the requirements 
for waste characterization programs and processes described in paragraph 
(b)(1) of this section will be conveyed in a letter from the 
Administrator's authorized representative to DOE. EPA will not issue a 
compliance decision until after the end of the public comment period 
described in paragraph (b)(2)(iii) of this section. EPA's compliance 
decision will respond to significant and timely-received comments. A 
copy of our compliance decision will be placed in the public docket 
described in Sec. 194.67. DOE will comply with any requirements 
identified in the compliance decision and the accompanying inspection 
report.
    (3) Subsequent to any positive determination of compliance as 
described in paragraph (b)(2)(iv) of this section, the Agency intends to 
conduct inspections, in accordance with Sec. 194.24(h), to confirm the 
continued compliance of approved waste characterization programs and 
processes at transuranic waste sites. EPA will make the results of these 
inspections available to the public in the dockets described in Sec. 
194.67.
    (4) Subsequent to any positive determination of compliance as 
described in paragraph (b)(2)(iv) of this section, the Department must 
report changes or expansions to the approved waste characterization 
program at a site in accordance with the tier designations established 
in the Baseline Compliance Decision.
    (i) For changes or expansions to the waste characterization program 
designated as ``Tier 1,'' the Department shall provide written 
notification to the Agency. The Department shall not ship for disposal 
at WIPP any waste that has been characterized using the new or revised 
processes, equipment, or waste streams until EPA has provided written 
approval of such new or revised systems.
    (ii) For changes or expansions to the waste characterization program 
designated as ``Tier 2,'' the Department shall provide written 
notification to the Agency. Waste characterized using the new or revised 
processes, equipment, or waste streams may be disposed at WIPP without 
written EPA approval.
    (iii) EPA may conduct inspections in accordance with Sec. 194.24(h) 
to evaluate the implementation of Tier 1 and Tier 2 changes or 
expansions to the waste characterization program at a site.
    (iv) Waste characterization program changes or expansions that are 
not identified as either ``Tier 1'' or ``Tier 2'' will not require 
written notification by the Department to the Agency before 
implementation or before shipping waste for disposal at WIPP.
    (5) Subsequent to any positive determination of compliance as 
described in paragraph (b)(2)(iii) of this section, EPA may revise the 
tier designations for approving changes or expansions to the waste 
characterization program at a site using the following process:
    (i) The Agency shall announce the proposed tier changes in a letter 
to the Department. The letter will describe the Agency's reasons for the 
proposed change in tier designation(s). The letter and any supporting 
inspection report(s) or other documentation will be placed in the 
dockets described in Sec. 194.67.

[[Page 43]]

    (ii) If the revised designation entails more stringent notification 
and approval requirements (e.g., from Tier 2 to Tier 1, or from 
undesignated to Tier 2), the change shall become effective immediately 
and the site shall operate under the more stringent requirements without 
delay.
    (iii) If the revised designated entails less stringent notification 
and approval requirements, (e.g., from Tier 1 to Tier 2, or from Tier 2 
to undesignated), EPA will solicit comments from the public for a 
minimum of 30 days. The site will continue to operate under the more 
stringent approval requirements until the public comment period is 
closed and EPA notifies DOE in writing of the Agency's final decision.
    (6) A waste generator site that EPA approved for characterizing and 
disposing transuranic waste at the WIPP under this section prior to 
October 14, 2004, may continue characterizing and disposing such waste 
at the WIPP under paragraph (c) of this section until EPA has conducted 
a baseline compliance inspection and provided a Baseline Compliance 
Decision under paragraph (b)(2) of this section.
    (i) Until EPA provides a Baseline Compliance Decision for such a 
site, EPA may approve additional transuranic waste streams for disposal 
at WIPP under the provisions of paragraph (c) of this section. Prior to 
the effective date of EPA's Baseline Compliance Decision for such a 
site, EPA will continue to conduct inspections of the site in accordance 
with Sec. 194.24(c).
    (ii) EPA shall conduct a baseline compliance inspection and issue a 
Baseline Compliance Decision for such previously approved sites in 
accordance with the provisions of paragraph (b) of this section, except 
that the site shall not be required to provide written notification of 
readiness as described in paragraph (b)(2)(i) of this section.
    (c) Waste characterization programs at waste generator sites with 
prior approval. For a waste generator site that EPA approved for 
characterizing and disposing transuranic waste at the WIPP under this 
section prior to October 14, 2004, the Agency will determine compliance 
with the requirements for use of process knowledge and a system of 
controls at waste generator sites as set in this paragraph (c). 
Approvals for a site to characterize and dispose of transuranic waste at 
WIPP will proceed according to this section only until EPA has conducted 
a baseline compliance inspection and provided a Baseline Compliance 
Decision for a site under paragraph (b)(2) of this section.
    (1) For each waste stream or group of waste streams at a site, the 
Department must:
    (i) Provide information on how process knowledge will be used for 
waste characterization of the waste stream(s) proposed for disposal at 
the WIPP; and
    (ii) Implement a system of controls at the site, in accordance with 
Sec. 194.24(c)(4), to confirm that the total amount of each waste 
component that will be emplaced in the disposal system will not exceed 
the upper limiting value or fall below the lower limiting value 
described in the introductory text of Sec. 194.24(c). The 
implementation of such a system of controls shall include a 
demonstration that the site has procedures in place for adding data to 
the WIPP Waste Information System (``WWIS''), and that such information 
can be transmitted from that site to the WWIS database; and a 
demonstration that measurement techniques and control methods can be 
implemented in accordance with Sec. 194.24(c)(4) for the waste 
stream(s) proposed for disposal at the WIPP.
    (2) The Agency will conduct an audit or an inspection of a 
Department audit for the purpose of evaluating the use of process 
knowledge and the implementation of a system of controls for each waste 
stream or group of waste streams at a waste generator site. The Agency 
will announce a scheduled inspection or audit by the Agency with a 
notice in the Federal Register. In that or another notice, the Agency 
will also solicit public comment on the relevant waste characterization 
program plans and Department documentation, which will be placed in the 
dockets described in Sec. 194.67. A public comment period of at least 
30 days will be allowed.
    (3) The Agency's written decision regarding compliance with the 
requirements for waste characterization programs described in paragraph 
(b)(1) of this section for one or more waste

[[Page 44]]

streams from a waste generator site will be conveyed in a letter from 
the Administrator's authorized representative to the Department. No such 
compliance determination shall be granted until after the end of the 
public comment period described in paragraph (b)(2) of this section. A 
copy of the Agency's compliance determination letter will be placed in 
the public dockets in accordance with Sec. 194.67. The results of any 
inspections or audits conducted by the Agency to evaluate the plans 
described in paragraph (b)(1) of this section will also be placed in the 
dockets described in Sec. 194.67.
    (4) Subsequent to any positive determination of compliance as 
described in paragraph (b)(3) of this section, the Agency intends to 
conduct inspections, in accordance with Sec. Sec. 194.21 and 194.24(h), 
to confirm the continued compliance of the programs approved under 
paragraphs (b)(2) and (b)(3) of this section. The results of such 
inspections will be made available to the public through the Agency's 
public dockets, as described in Sec. 194.67.

[63 FR 27404, May 18, 1998, as amended at 69 FR 42581, July 16, 2004]



  Subpart B_Compliance Certification and Re-certification Applications



Sec. 194.11  Completeness and accuracy of compliance applications.

    Information provided to the Administrator in support of any 
compliance application shall be complete and accurate. The 
Administrator's evaluation for certification pursuant to section 
8(d)(1)(B) of the WIPP LWA and evaluation for recertification pursuant 
to section 8(f)(2) of the WIPP LWA shall not begin until the 
Administrator has notified the Secretary, in writing, that a complete 
application in accordance with this part has been received.



Sec. 194.12  Submission of compliance applications.

    Unless otherwise specified by the Administrator or the 
Administrator's authorized representative, 5 copies of any compliance 
application(s), any accompanying materials, and any amendments thereto 
shall be submitted in a printed form to the Administrator's authorized 
representative. These paper copies are intended for the official docket 
in Washington, DC, as well as the four informational dockets in 
Albuquerque and Santa Fe, New Mexico. In addition, DOE shall submit 10 
copies of the complete application in alternative format (e.g., compact 
disk) or other approved format, as specified by the Administrator's 
authorized representative.

[69 FR 42582, July 16, 2004]



Sec. 194.13  Submission of reference materials.

    Information may be included by reference into compliance 
applications(s), provided that the references are clear specific and 
that unless, otherwise specified by the Administrator or the 
Administrator's authorized representative, 5 copies of reference 
information are submitted to the Administrator's authorized 
representative. These paper copies are intended for the official docket 
in Washington, DC, as well as the four informational dockets in 
Albuquerque and Santa Fe, New Mexico. Reference materials that are 
widely available in standard text books or reference books need not to 
be submitted. Whenever possible, DOE shall submit 10 copies of reference 
materials in alternative format (e.g., compact disk) or other approved 
format, as specified by the Administrator's authorized representative.

[69 FR 42582, July 16, 2004]



Sec. 194.14  Content of compliance certification application.

    Any compliance application shall include:
    (a) A current description of the natural and engineered features 
that may affect the performance of the disposal system. The description 
of the disposal system shall include, at a minimum, the following 
information:
    (1) The location of the disposal system and the controlled area;
    (2) A description of the geology, geophysics, hydrogeology, 
hydrology, and geochemistry of the disposal system and its vicinity and 
how these conditions are expected to change and interact over the 
regulatory time frame.

[[Page 45]]

Such description shall include, at a minimum:
    (i) Existing fluids and fluid hydraulic potential, including brine 
pockets, in and near the disposal system; and
    (ii) Existing higher permeability anhydrite interbeds located at or 
near the horizon of the waste.
    (3) The presence and characteristics of potential pathways for 
transport of waste from the disposal system to the accessible 
environment including, but not limited to: Existing boreholes, solution 
features, breccia pipes, and other potentially permeable features, such 
as interbeds.
    (4) The projected geophysical, hydrogeologic and geochemical 
conditions of the disposal system due to the presence of waste 
including, but not limited to, the effects of production of heat or 
gases from the waste.
    (b) A description of the design of the disposal system including:
    (1) Information on materials of construction including, but not 
limited to: Geologic media, structural materials, engineered barriers, 
general arrangement, and approximate dimensions; and
    (2) Computer codes and standards that have been applied to the 
design and construction of the disposal system.
    (c) Results of assessments conducted pursuant to this part.
    (d) A description of input parameters associated with assessments 
conducted pursuant to this part and the basis for selecting those input 
parameters.
    (e) Documentation of measures taken to meet the assurance 
requirements of this part.
    (f) A description of waste acceptance criteria and actions taken to 
assure adherence to such criteria.
    (g) A description of background radiation in air, soil and water in 
the vicinity of the disposal system and the procedures employed to 
determine such radiation.
    (h) One or more topographic map(s) of the vicinity of the disposal 
system. The contour interval shall be sufficient to show clearly the 
pattern of surface water flow in the vicinity of the disposal system. 
The map(s) shall include standard map notations and symbols, and, in 
addition, shall show boundaries of the controlled area and the location 
of any active, inactive, and abandoned injection and withdrawal wells in 
the controlled area and in the vicinity of the disposal system.
    (i) A description of past and current climatologic and meteorologic 
conditions in the vicinity of the disposal system and how these 
conditions are expected to change over the regulatory time frame.
    (j) The information required elsewhere in this part or any 
additional information, analyses, tests, or records determined by the 
Administrator or the Administrator's authorized representative to be 
necessary for determining compliance with this part.



Sec. 194.15  Content of compliance re-certification application(s).

    (a) In submitting documentation of continued compliance pursuant to 
section 8(f) of the WIPP LWA, the previous compliance application shall 
be updated to provide sufficient information for the Administrator to 
determine whether or not the WIPP continues to be in compliance with the 
disposal regulations. Updated documentation shall include:
    (1) All additional geologic, geophysical, geochemical, hydrologic, 
and meteorologic information;
    (2) All additional monitoring data, analyses and results;
    (3) All additional analyses and results of laboratory experiments 
conducted by the Department or its contractors as part of the WIPP 
program;
    (4) An identification of any activities or assumptions that deviate 
from the most recent compliance application;
    (5) A description of all waste emplaced in the disposal system since 
the most recent compliance certification or re-certification 
application. Such description shall consist of a description of the 
waste characteristics and waste components identified in Sec. Sec. 
194.24(b)(1) and 194.24(b)(2);
    (6) Any significant information not previously included in a 
compliance certification or re-certification application related to 
whether the disposal system continues to be in compliance with the 
disposal regulations; and
    (7) Any additional information requested by the Administrator or the

[[Page 46]]

Administrator's authorized representative.
    (b) To the extent that information required for a re-certification 
of compliance remains valid and has been submitted in previous 
certification or re-certification application(s), such information need 
not be duplicated in subsequent applications; such information may be 
summarized and referenced.



         Subpart C_Compliance Certification and Re-certification

                          General Requirements



Sec. 194.21  Inspections.

    (a) The Administrator or the Administrator's authorized 
representative(s) shall, at any time:
    (1) Be afforded unfettered and unannounced access to inspect any 
area of the WIPP, and any locations performing activities that provide 
information relevant to compliance application(s), to which the 
Department has rights of access. Such access shall be equivalent to 
access afforded Department employees upon presentation of credentials 
and other required documents.
    (2) Be allowed to obtain samples, including split samples, and to 
monitor and measure aspects of the disposal system and the waste 
proposed for disposal in the disposal system.
    (b) Records (including data and other information in any form) kept 
by the Department pertaining to the WIPP shall be made available to the 
Administrator or the Administrator's authorized representative upon 
request. If requested records are not immediately available, they shall 
be delivered within 30 calendar days of the request.
    (c) The Department shall, upon request by the Administrator or the 
Administrator's authorized representative, provide permanent, private 
office space that is accessible to the disposal system. The office space 
shall be for the exclusive use of the Administrator or the 
Administrator's authorized representative(s).
    (d) The Administrator or the Administrator's authorized 
representative(s) shall comply with applicable access control measures 
for security, radiological protection, and personal safety when 
conducting activities pursuant to this section.



Sec. 194.22  Quality assurance.

    (a)(1) As soon as practicable after April 9, 1996, the Department 
shall adhere to a quality assurance program that implements the 
requirements of ASME NQA-1-1989 edition, ASME NQA-2a-1990 addenda, part 
2.7, to ASME NQA-2-1989 edition, and ASME NQA-3-1989 edition (excluding 
Section 2.1 (b) and (c), and Section 17.1). (Incorporation by reference 
as specified in Sec. 194.5.)
    (2) Any compliance application shall include information which 
demonstrates that the quality assurance program required pursuant to 
paragraph (a)(1) of this section has been established and executed for:
    (i) Waste characterization activities and assumptions;
    (ii) Environmental monitoring, monitoring of the performance of the 
disposal system, and sampling and analysis activities;
    (iii) Field measurements of geologic factors, ground water, 
meteorologic, and topographic characteristics;
    (iv) Computations, computer codes, models and methods used to 
demonstrate compliance with the disposal regulations in accordance with 
the provisions of this part;
    (v) Procedures for implementation of expert judgment elicitation 
used to support applications for certification or re-certification of 
compliance;
    (vi) Design of the disposal system and actions taken to ensure 
compliance with design specifications;
    (vii) The collection of data and information used to support 
compliance application(s); and
    (viii) Other systems, structures, components, and activities 
important to the containment of waste in the disposal system.
    (b) Any compliance application shall include information which 
demonstrates that data and information collected prior to the 
implementation of the quality assurance program required pursuant to 
paragraph (a)(1) of this section have been qualified in accordance with 
an alternate methodology, approved by the Administrator or the 
Administrator's authorized representative, that employs one or more

[[Page 47]]

of the following methods: Peer review, conducted in a manner that is 
compatible with NUREG-1297, ``Peer Review for High-Level Nuclear Waste 
Repositories,'' published February 1988 (incorporation by reference as 
specified in Sec. 194.5); corroborating data; confirmatory testing; or 
a quality assurance program that is equivalent in effect to ASME NQA-1-
1989 edition, ASME NQA-2a-1990 addenda, part 2.7, to ASME NQA-2-1989 
edition, and ASME NQA-3-1989 edition (excluding Section 2.1 (b) and (c) 
and Section 17.1). (Incorporation by reference as specified in Sec. 
194.5.)
    (c) Any compliance application shall provide, to the extent 
practicable, information which describes how all data used to support 
the compliance application have been assessed for their quality 
characteristics, including:
    (1) Data accuracy, i.e., the degree to which data agree with an 
accepted reference or true value;
    (2) Data precision, i.e., a measure of the mutual agreement between 
comparable data gathered or developed under similar conditions expressed 
in terms of a standard deviation;
    (3) Data representativeness, i.e., the degree to which data 
accurately and precisely represent a characteristic of a population, a 
parameter, variations at a sampling point, or environmental conditions;
    (4) Data completeness, i.e., a measure of the amount of valid data 
obtained compared to the amount that was expected; and
    (5) Data comparability, i.e., a measure of the confidence with which 
one data set can be compared to another.
    (d) Any compliance application shall provide information which 
demonstrates how all data are qualified for use in the demonstration of 
compliance.
    (e) The Administrator will verify appropriate execution of quality 
assurance programs through inspections, record reviews and record 
keeping requirements, which may include, but may not be limited to, 
surveillance, audits and management systems reviews.



Sec. 194.23  Models and computer codes.

    (a) Any compliance application shall include:
    (1) A description of the conceptual models and scenario construction 
used to support any compliance application.
    (2) A description of plausible, alternative conceptual model(s) 
seriously considered but not used to support such application, and an 
explanation of the reason(s) why such model(s) was not deemed to 
accurately portray performance of the disposal system.
    (3) Documentation that:
    (i) Conceptual models and scenarios reasonably represent possible 
future states of the disposal system;
    (ii) Mathematical models incorporate equations and boundary 
conditions which reasonably represent the mathematical formulation of 
the conceptual models;
    (iii) Numerical models provide numerical schemes which enable the 
mathematical models to obtain stable solutions;
    (iv) Computer models accurately implement the numerical models; 
i.e., computer codes are free of coding errors and produce stable 
solutions;
    (v) Conceptual models have undergone peer review according to Sec. 
194.27.
    (b) Computer codes used to support any compliance application shall 
be documented in a manner that complies with the requirements of ASME 
NQA-2a-1990 addenda, part 2.7, to ASME NQA-2-1989 edition. 
(Incorporation by reference as specified in Sec. 194.5.)
    (c) Documentation of all models and computer codes included as part 
of any compliance application performance assessment calculation shall 
be provided. Such documentation shall include, but shall not be limited 
to:
    (1) Descriptions of the theoretical backgrounds of each model and 
the method of analysis or assessment;
    (2) General descriptions of the models; discussions of the limits of 
applicability of each model; detailed instructions for executing the 
computer codes, including hardware and software requirements, input and 
output formats with explanations of each input and output variable and 
parameter (e.g., parameter name and units); listings of input and output 
files from a sample computer run; and reports on code verification, 
benchmarking, validation, and quality assurance procedures;

[[Page 48]]

    (3) Detailed descriptions of the structure of computer codes and 
complete listings of the source codes;
    (4) Detailed descriptions of data collection procedures, sources of 
data, data reduction and analysis, and code input parameter development;
    (5) Any necessary licenses; and
    (6) An explanation of the manner in which models and computer codes 
incorporate the effects of parameter correlation.
    (d) The Administrator or the Administrator's authorized 
representative may verify the results of computer simulations used to 
support any compliance application by performing independent 
simulations. Data files, source codes, executable versions of computer 
software for each model, other material or information needed to permit 
the Administrator or the Administrator's authorized representative to 
perform independent simulations, and access to necessary hardware to 
perform such simulations, shall be provided within 30 calendar days of a 
request by the Administrator or the Administrator's authorized 
representative.



Sec. 194.24  Waste characterization.

    (a) Any compliance application shall describe the chemical, 
radiological and physical composition of all existing waste proposed for 
disposal in the disposal system. To the extent practicable, any 
compliance application shall also describe the chemical, radiological 
and physical composition of to-be-generated waste proposed for disposal 
in the disposal system. These descriptions shall include a list of waste 
components and their approximate quantities in the waste. This list may 
be derived from process knowledge, current non-destructive examination/
assay, or other information and methods.
    (b) The Department shall submit in the compliance certification 
application the results of an analysis which substantiates:
    (1) That all waste characteristics influencing containment of waste 
in the disposal system have been identified and assessed for their 
impact on disposal system performance. The characteristics to be 
analyzed shall include, but shall not be limited to: Solubility; 
formation of colloidal suspensions containing radionuclides; production 
of gas from the waste; shear strength; compactability; and other waste-
related inputs into the computer models that are used in the performance 
assessment.
    (2) That all waste components influencing the waste characteristics 
identified in paragraph (b)(1) of this section have been identified and 
assessed for their impact on disposal system performance. The components 
to be analyzed shall include, but shall not be limited to: metals; 
cellulosics; chelating agents; water and other liquids; and activity in 
curies of each isotope of the radionuclides present.
    (3) Any decision to exclude consideration of any waste 
characteristic or waste component because such characteristic or 
component is not expected to significantly influence the containment of 
the waste in the disposal system.
    (c) For each waste component identified and assessed pursuant to 
paragraph (b) of this section, the Department shall specify the limiting 
value (expressed as an upper or lower limit of mass, volume, curies, 
concentration, etc.), and the associated uncertainty (i.e., margin of 
error) for each limiting value, of the total inventory of such waste 
proposed for disposal in the disposal system. Any compliance application 
shall:
    (1) Demonstrate that, for the total inventory of waste proposed for 
disposal in the disposal system, WIPP complies with the numeric 
requirements of Sec. 194.34 and Sec. 194.55 for the upper or lower 
limits (including the associated uncertainties), as appropriate, for 
each waste component identified in paragraph (b)(2) of this section, and 
for the plausible combinations of upper and lower limits of such waste 
components that would result in the greatest estimated release.
    (2) Identify and describe the method(s) used to quantify the limits 
of waste components identified in paragraph (b)(2) of this section.
    (3) Provide information that demonstrates that the use of acceptable 
knowledge to quantify components in waste for disposal conforms with the

[[Page 49]]

quality assurance requirements of Sec. 194.22.
    (4) Provide information which demonstrates that a system of controls 
has been and will continue to be implemented to confirm that the total 
amount of each waste component that will be emplaced in the disposal 
system will not exceed the upper limiting value or fall below the lower 
limiting value described in the introductory text of paragraph (c) of 
this section. The system of controls shall include, but shall not be 
limited to: Measurement; sampling; chain of custody records; record 
keeping systems; waste loading schemes used; and other documentation.
    (5) Identify and describe such controls delineated in paragraph 
(c)(4) of this section and confirm that they are applied in accordance 
with the quality assurance requirements found in Sec. 194.22.
    (d) The Department shall include a waste loading scheme in any 
compliance application, or else performance assessments conducted 
pursuant to Sec. 194.32 and compliance assessments conducted pursuant 
to Sec. 194.54 shall assume random placement of waste in the disposal 
system.
    (e) Waste may be emplaced in the disposal system only if the 
emplaced components of such waste will not cause:
    (1) The total quantity of waste in the disposal system to exceed the 
upper limiting value, including the associated uncertainty, described in 
the introductory text to paragraph (c) of this section; or
    (2) The total quantity of waste that will have been emplaced in the 
disposal system, prior to closure, to fall below the lower limiting 
value, including the associated uncertainty, described in the 
introductory text to paragraph (c) of this section.
    (f) Waste emplacement shall conform to the assumed waste loading 
conditions, if any, used in performance assessments conducted pursuant 
to Sec. 194.32 and compliance assessments conducted pursuant to Sec. 
194.54.
    (g) The Department shall demonstrate in any compliance application 
that the total inventory of waste emplaced in the disposal system 
complies with the limitations on transuranic waste disposal described in 
the WIPP LWA.
    (h) The Administrator will use inspections and records reviews, such 
as audits, to verify compliance with this section.

[61 FR 5235, Feb. 9, 1996, as amended at 69 FR 42583, July 16, 2004]



Sec. 194.25  Future state assumptions.

    (a) Unless otherwise specified in this part or in the disposal 
regulations, performance assessments and compliance assessments 
conducted pursuant the provisions of this part to demonstrate compliance 
with Sec. 191.13, Sec. 191.15 and part 191, subpart C shall assume 
that characteristics of the future remain what they are at the time the 
compliance application is prepared, provided that such characteristics 
are not related to hydrogeologic, geologic or climatic conditions.
    (b) In considering future states pursuant to this section, the 
Department shall document in any compliance application, to the extent 
practicable, effects of potential future hydrogeologic, geologic and 
climatic conditions on the disposal system over the regulatory time 
frame. Such documentation shall be part of the activities undertaken 
pursuant to Sec. 194.14, Content of compliance certification 
application; Sec. 194.32, Scope of performance assessments; and Sec. 
194.54, Scope of compliance assessments.
    (1) In considering the effects of hydrogeologic conditions on the 
disposal system, the Department shall document in any compliance 
application, to the extent practicable, the effects of potential changes 
to hydrogeologic conditions.
    (2) In considering the effects of geologic conditions on the 
disposal system, the Department shall document in any compliance 
application, to the extent practicable, the effects of potential changes 
to geologic conditions, including, but not limited to: Dissolution; near 
surface geomorphic features and processes; and related subsidence in the 
geologic units of the disposal system.
    (3) In considering the effects of climatic conditions on the 
disposal system, the Department shall document in

[[Page 50]]

any compliance application, to the extent practicable, the effects of 
potential changes to future climate cycles of increased precipitation 
(as compared to present conditions).



Sec. 194.26  Expert judgment.

    (a) Expert judgment, by an individual expert or panel of experts, 
may be used to support any compliance application, provided that expert 
judgment does not substitute for information that could reasonably be 
obtained through data collection or experimentation.
    (b) Any compliance application shall:
    (1) Identify any expert judgments used to support the application 
and shall identify experts (by name and employer) involved in any expert 
judgment elicitation processes used to support the application.
    (2) Describe the process of eliciting expert judgment, and document 
the results of expert judgment elicitation processes and the reasoning 
behind those results. Documentation of interviews used to elicit 
judgments from experts, the questions or issues presented for 
elicitation of expert judgment, background information provided to 
experts, and deliberations and formal interactions among experts shall 
be provided. The opinions of all experts involved in each elicitation 
process shall be provided whether the opinions are used to support 
compliance applications or not.
    (3) Provide documentation that the following restrictions and 
guidelines have been applied to any selection of individuals used to 
elicit expert judgments:
    (i) Individuals who are members of the team of investigators 
requesting the judgment or the team of investigators who will use the 
judgment were not selected; and
    (ii) Individuals who maintain, at any organizational level, a 
supervisory role or who are supervised by those who will utilize the 
judgment were not selected.
    (4) Provide information which demonstrates that:
    (i) The expertise of any individual involved in expert judgment 
elicitation comports with the level of knowledge required by the 
questions or issues presented to that individual; and
    (ii) The expertise of any expert panel, as a whole, involved in 
expert judgment elicitation comports with the level and variety of 
knowledge required by the questions or issues presented to that panel.
    (5) Explain the relationship among the information and issues 
presented to experts prior to the elicitation process, the elicited 
judgment of any expert panel or individual, and the purpose for which 
the expert judgment is being used in compliance applications(s).
    (6) Provide documentation that the initial purpose for which expert 
judgment was intended, as presented to the expert panel, is consistent 
with the purpose for which this judgment was used in compliance 
application(s).
    (7) Provide documentation that the following restrictions and 
guidelines have been applied in eliciting expert judgment:
    (i) At least five individuals shall be used in any expert 
elicitation process, unless there is a lack or unavailability of experts 
and a documented rationale is provided that explains why fewer than five 
individuals were selected.
    (ii) At least two-thirds of the experts involved in an elicitation 
shall consist of individuals who are not employed directly by the 
Department or by the Department's contractors, unless the Department can 
demonstrate and document that there is a lack or unavailability of 
qualified independent experts. If so demonstrated, at least one-third of 
the experts involved in an elicitation shall consist of individuals who 
are not employed directly by the Department or by the Department's 
contractors.
    (c) The public shall be afforded a reasonable opportunity to present 
its scientific and technical views to expert panels as input to any 
expert elicitation process.



Sec. 194.27  Peer review.

    (a) Any compliance application shall include documentation of peer 
review that has been conducted, in a manner required by this section, 
for:
    (1) Conceptual models selected and developed by the Department;
    (2) Waste characterization analyses as required in Sec. 194.24(b); 
and

[[Page 51]]

    (3) Engineered barrier evaluation as required in Sec. 194.44.
    (b) Peer review processes required in paragraph (a) of this section, 
and conducted subsequent to the promulgation of this part, shall be 
conducted in a manner that is compatible with NUREG-1297, ``Peer Review 
for High-Level Nuclear Waste Repositories,'' published February 1988. 
(Incorporation by reference as specified in Sec. 194.5.)
    (c) Any compliance application shall:
    (1) Include information that demonstrates that peer review processes 
required in paragraph (a) of this section, and conducted prior to the 
implementation of the promulgation of this part, were conducted in 
accordance with an alternate process substantially equivalent in effect 
to NUREG-1297 and approved by the Administrator or the Administrator's 
authorized representative; and
    (2) Document any peer review processes conducted in addition to 
those required pursuant to paragraph (a) of this section. Such 
documentation shall include formal requests, from the Department to 
outside review groups or individuals, to review or comment on any 
information used to support compliance applications, and the responses 
from such groups or individuals.

                        Containment Requirements



Sec. 194.31  Application of release limits.

    The release limits shall be calculated according to part 191, 
appendix A of this chapter, using the total activity, in curies, that 
will exist in the disposal system at the time of disposal.



Sec. 194.32  Scope of performance assessments.

    (a) Performance assessments shall consider natural processes and 
events, mining, deep drilling, and shallow drilling that may affect the 
disposal system during the regulatory time frame.
    (b) Assessments of mining effects may be limited to changes in the 
hydraulic conductivity of the hydrogeologic units of the disposal system 
from excavation mining for natural resources. Mining shall be assumed to 
occur with a one in 100 probability in each century of the regulatory 
time frame. Performance assessments shall assume that mineral deposits 
of those resources, similar in quality and type to those resources 
currently extracted from the Delaware Basin, will be completely removed 
from the controlled area during the century in which such mining is 
randomly calculated to occur. Complete removal of such mineral resources 
shall be assumed to occur only once during the regulatory time frame.
    (c) Performance assessments shall include an analysis of the effects 
on the disposal system of any activities that occur in the vicinity of 
the disposal system prior to disposal and are expected to occur in the 
vicinity of the disposal system soon after disposal. Such activities 
shall include, but shall not be limited to, existing boreholes and the 
development of any existing leases that can be reasonably expected to be 
developed in the near future, including boreholes and leases that may be 
used for fluid injection activities.
    (d) Performance assessments need not consider processes and events 
that have less than one chance in 10,000 of occurring over 10,000 years.
    (e) Any compliance application(s) shall include information which:
    (1) Identifies all potential processes, events or sequences and 
combinations of processes and events that may occur during the 
regulatory time frame and may affect the disposal system;
    (2) Identifies the processes, events or sequences and combinations 
of processes and events included in performance assessments; and
    (3) Documents why any processes, events or sequences and 
combinations of processes and events identified pursuant to paragraph 
(e)(1) of this section were not included in performance assessment 
results provided in any compliance application.



Sec. 194.33  Consideration of drilling events in performance assessments.

    (a) Performance assessments shall examine deep drilling and shallow 
drilling that may potentially affect the disposal system during the 
regulatory time frame.
    (b) The following assumptions and process shall be used in assessing 
the likelihood and consequences of drilling

[[Page 52]]

events, and the results of such process shall be documented in any 
compliance application:
    (1) Inadvertent and intermittent intrusion by drilling for resources 
(other than those resources provided by the waste in the disposal system 
or engineered barriers designed to isolate such waste) is the most 
severe human intrusion scenario.
    (2) In performance assessments, drilling events shall be assumed to 
occur in the Delaware Basin at random intervals in time and space during 
the regulatory time frame.
    (3) The frequency of deep drilling shall be calculated in the 
following manner:
    (i) Identify deep drilling that has occurred for each resource in 
the Delaware Basin over the past 100 years prior to the time at which a 
compliance application is prepared.
    (ii) The total rate of deep drilling shall be the sum of the rates 
of deep drilling for each resource.
    (4) The frequency of shallow drilling shall be calculated in the 
following manner:
    (i) Identify shallow drilling that has occurred for each resource in 
the Delaware Basin over the past 100 years prior to the time at which a 
compliance application is prepared.
    (ii) The total rate of shallow drilling shall be the sum of the 
rates of shallow drilling for each resource.
    (iii) In considering the historical rate of all shallow drilling, 
the Department may, if justified, consider only the historical rate of 
shallow drilling for resources of similar type and quality to those in 
the controlled area.
    (c) Performance assessments shall document that in analyzing the 
consequences of drilling events, the Department assumed that:
    (1) Future drilling practices and technology will remain consistent 
with practices in the Delaware Basin at the time a compliance 
application is prepared. Such future drilling practices shall include, 
but shall not be limited to: The types and amounts of drilling fluids; 
borehole depths, diameters, and seals; and the fraction of such 
boreholes that are sealed by humans; and
    (2) Natural processes will degrade or otherwise affect the 
capability of boreholes to transmit fluids over the regulatory time 
frame.
    (d) With respect to future drilling events, performance assessments 
need not analyze the effects of techniques used for resource recovery 
subsequent to the drilling of the borehole.



Sec. 194.34  Results of performance assessments.

    (a) The results of performance assessments shall be assembled into 
``complementary, cumulative distribution functions'' (CCDFs) that 
represent the probability of exceeding various levels of cumulative 
release caused by all significant processes and events.
    (b) Probability distributions for uncertain disposal system 
parameter values used in performance assessments shall be developed and 
documented in any compliance application.
    (c) Computational techniques, which draw random samples from across 
the entire range of the probability distributions developed pursuant to 
paragraph (b) of this section, shall be used in generating CCDFs and 
shall be documented in any compliance application.
    (d) The number of CCDFs generated shall be large enough such that, 
at cumulative releases of 1 and 10, the maximum CCDF generated exceeds 
the 99th percentile of the population of CCDFs with at least a 0.95 
probability. Values of cumulative release shall be calculated according 
to Note 6 of Table 1, appendix A of part 191 of this chapter.
    (e) Any compliance application shall display the full range of CCDFs 
generated.
    (f) Any compliance application shall provide information which 
demonstrates that there is at least a 95 percent level of statistical 
confidence that the mean of the population of CCDFs meets the 
containment requirements of Sec. 191.13 of this chapter.

                         Assurance Requirements



Sec. 194.41  Active institutional controls.

    (a) Any compliance application shall include detailed descriptions 
of proposed active institutional controls, the controls' location, and 
the period of

[[Page 53]]

time the controls are proposed to remain active. Assumptions pertaining 
to active institutional controls and their effectiveness in terms of 
preventing or reducing radionuclide releases shall be supported by such 
descriptions.
    (b) Performance assessments shall not consider any contributions 
from active institutional controls for more than 100 years after 
disposal.



Sec. 194.42  Monitoring.

    (a) The Department shall conduct an analysis of the effects of 
disposal system parameters on the containment of waste in the disposal 
system and shall include the results of such analysis in any compliance 
application. The results of the analysis shall be used in developing 
plans for pre-closure and post-closure monitoring required pursuant to 
paragraphs (c) and (d) of this section. The disposal system parameters 
analyzed shall include, at a minimum:
    (1) Properties of backfilled material, including porosity, 
permeability, and degree of compaction and reconsolidation;
    (2) Stresses and extent of deformation of the surrounding roof, 
walls, and floor of the waste disposal room;
    (3) Initiation or displacement of major brittle deformation features 
in the roof or surrounding rock;
    (4) Ground water flow and other effects of human intrusion in the 
vicinity of the disposal system;
    (5) Brine quantity, flux, composition, and spatial distribution;
    (6) Gas quantity and composition; and
    (7) Temperature distribution.
    (b) For all disposal system parameters analyzed pursuant to 
paragraph (a) of this section, any compliance application shall document 
and substantiate the decision not to monitor a particular disposal 
system parameter because that parameter is considered to be 
insignificant to the containment of waste in the disposal system or to 
the verification of predictions about the future performance of the 
disposal system.
    (c) Pre-closure monitoring. To the extent practicable, pre-closure 
monitoring shall be conducted of significant disposal system 
parameter(s) as identified by the analysis conducted pursuant to 
paragraph (a) of this section. A disposal system parameter shall be 
considered significant if it affects the system's ability to contain 
waste or the ability to verify predictions about the future performance 
of the disposal system. Such monitoring shall begin as soon as 
practicable; however, in no case shall waste be emplaced in the disposal 
system prior to the implementation of pre-closure monitoring. Pre-
closure monitoring shall end at the time at which the shafts of the 
disposal system are backfilled and sealed.
    (d) Post-closure monitoring. The disposal system shall, to the 
extent practicable, be monitored as soon as practicable after the shafts 
of the disposal system are backfilled and sealed to detect substantial 
and detrimental deviations from expected performance and shall end when 
the Department can demonstrate to the satisfaction of the Administrator 
that there are no significant concerns to be addressed by further 
monitoring. Post-closure monitoring shall be complementary to monitoring 
required pursuant to applicable federal hazardous waste regulations at 
parts 264, 265, 268, and 270 of this chapter and shall be conducted with 
techniques that do not jeopardize the containment of waste in the 
disposal system.
    (e) Any compliance application shall include detailed pre-closure 
and post-closure monitoring plans for monitoring the performance of the 
disposal system. At a minimum, such plans shall:
    (1) Identify the parameters that will be monitored and how baseline 
values will be determined;
    (2) Indicate how each parameter will be used to evaluate any 
deviations from the expected performance of the disposal system; and
    (3) Discuss the length of time over which each parameter will be 
monitored to detect deviations from expected performance.



Sec. 194.43  Passive institutional controls.

    (a) Any compliance application shall include detailed descriptions 
of the

[[Page 54]]

measures that will be employed to preserve knowledge about the location, 
design, and contents of the disposal system. Such measures shall 
include:
    (1) Identification of the controlled area by markers that have been 
designed and will be fabricated and emplaced to be as permanent as 
practicable;
    (2) Placement of records in the archives and land record systems of 
local, State, and Federal governments, and international archives, that 
would likely be consulted by individuals in search of unexploited 
resources. Such records shall identify:
    (i) The location of the controlled area and the disposal system;
    (ii) The design of the disposal system;
    (iii) The nature and hazard of the waste;
    (iv) Geologic, geochemical, hydrologic, and other site data 
pertinent to the containment of waste in the disposal system, or the 
location of such information; and
    (v) The results of tests, experiments, and other analyses relating 
to backfill of excavated areas, shaft sealing, waste interaction with 
the disposal system, and other tests, experiments, or analyses pertinent 
to the containment of waste in the disposal system, or the location of 
such information.
    (3) Other passive institutional controls practicable to indicate the 
dangers of the waste and its location.
    (b) Any compliance application shall include the period of time 
passive institutional controls are expected to endure and be understood.
    (c) The Administrator may allow the Department to assume passive 
institutional control credit, in the form of reduced likelihood of human 
intrusion, if the Department demonstrates in the compliance application 
that such credit is justified because the passive institutional controls 
are expected to endure and be understood by potential intruders for the 
time period approved by the Administrator. Such credit, or a smaller 
credit as determined by the Administrator, cannot be used for more than 
several hundred years and may decrease over time. In no case, however, 
shall passive institutional controls be assumed to eliminate the 
likelihood of human intrusion entirely.



Sec. 194.44  Engineered barriers.

    (a) Disposal systems shall incorporate engineered barrier(s) 
designed to prevent or substantially delay the movement of water or 
radionuclides toward the accessible environment.
    (b) In selecting any engineered barrier(s) for the disposal system, 
the Department shall evaluate the benefit and detriment of engineered 
barrier alternatives, including but not limited to: Cementation, 
shredding, supercompaction, incineration, vitrification, improved waste 
canisters, grout and bentonite backfill, melting of metals, alternative 
configurations of waste placements in the disposal system, and 
alternative disposal system dimensions. The results of this evaluation 
shall be included in any compliance application and shall be used to 
justify the selection and rejection of each engineered barrier 
evaluated.
    (c)(1) In conducting the evaluation of engineered barrier 
alternatives, the following shall be considered, to the extent 
practicable:
    (i) The ability of the engineered barrier to prevent or 
substantially delay the movement of water or waste toward the accessible 
environment;
    (ii) The impact on worker exposure to radiation both during and 
after incorporation of engineered barriers;
    (iii) The increased ease or difficulty of removing the waste from 
the disposal system;
    (iv) The increased or reduced risk of transporting the waste to the 
disposal system;
    (v) The increased or reduced uncertainty in compliance assessment;
    (vi) Public comments requesting specific engineered barriers;
    (vii) The increased or reduced total system costs;
    (viii) The impact, if any, on other waste disposal programs from the 
incorporation of engineered barriers (e.g., the extent to which the 
incorporation of engineered barriers affects the volume of waste);
    (ix) The effects on mitigating the consequences of human intrusion.
    (2) If, after consideration of one or more of the factors in 
paragraph (c)(1)

[[Page 55]]

of this section, the Department concludes that an engineered barrier 
considered within the scope of the evaluation should be rejected without 
evaluating the remaining factors in paragraph (c)(1) of this section, 
then any compliance application shall provide a justification for this 
rejection explaining why the evaluation of the remaining factors would 
not alter the conclusion.
    (d) In considering the ability of engineered barriers to prevent or 
substantially delay the movement of water or radionuclides toward the 
accessible environment, the benefit and detriment of engineered barriers 
for existing waste already packaged, existing waste not yet packaged, 
existing waste in need of re-packaging, and to-be-generated waste shall 
be considered separately and described.
    (e) The evaluation described in paragraphs (b), (c) and (d) of this 
section shall consider engineered barriers alone and in combination.



Sec. 194.45  Consideration of the presence of resources.

    Any compliance application shall include information that 
demonstrates that the favorable characteristics of the disposal system 
compensate for the presence of resources in the vicinity of the disposal 
system and the likelihood of the disposal system being disturbed as a 
result of the presence of those resources. If performance assessments 
predict that the disposal system meets the containment requirements of 
Sec. 191.13 of this chapter, then the Agency will assume that the 
requirements of this section and Sec. 191.14(e) of this chapter have 
been fulfilled.



Sec. 194.46  Removal of waste.

    Any compliance application shall include documentation which 
demonstrates that removal of waste from the disposal system is feasible 
for a reasonable period of time after disposal. Such documentation shall 
include an analysis of the technological feasibility of mining the 
sealed disposal system, given technology levels at the time a compliance 
application is prepared.

           Individual and Ground-water Protection Requirements



Sec. 194.51  Consideration of protected individual.

    Compliance assessments that analyze compliance with Sec. 191.15 of 
this chapter shall assume that an individual resides at the single 
geographic point on the surface of the accessible environment where that 
individual would be expected to receive the highest dose from 
radionuclide releases from the disposal system.



Sec. 194.52  Consideration of exposure pathways.

    In compliance assessments that analyze compliance with Sec. 191.15 
of this chapter, all potential exposure pathways from the disposal 
system to individuals shall be considered. Compliance assessments with 
part 191, subpart C and Sec. 191.15 of this chapter shall assume that 
individuals consume 2 liters per day of drinking water from any 
underground source of drinking water in the accessible environment.



Sec. 194.53  Consideration of underground sources of drinking water.

    In compliance assessments that analyze compliance with part 191, 
subpart C of this chapter, all underground sources of drinking water in 
the accessible environment that are expected to be affected by the 
disposal system over the regulatory time frame shall be considered. In 
determining whether underground sources of drinking water are expected 
to be affected by the disposal system, underground interconnections 
among bodies of surface water, ground water, and underground sources of 
drinking water shall be considered.



Sec. 194.54  Scope of compliance assessments.

    (a) Any compliance application shall contain compliance assessments 
required pursuant to this part. Compliance assessments shall include 
information which:
    (1) Identifies potential processes, events, or sequences of 
processes and events that may occur over the regulatory time frame;

[[Page 56]]

    (2) Identifies the processes, events, or sequences of processes and 
events included in compliance assessment results provided in any 
compliance application; and
    (3) Documents why any processes, events, or sequences of processes 
and events identified pursuant to paragraph (a)(1) of this section were 
not included in compliance assessment results provided in any compliance 
application.
    (b) Compliance assessments of undisturbed performance shall include 
the effects on the disposal system of:
    (1) Existing boreholes in the vicinity of the disposal system, with 
attention to the pathways they provide for migration of radionuclides 
from the site; and
    (2) Any activities that occur in the vicinity of the disposal system 
prior to or soon after disposal. Such activities shall include, but 
shall not be limited to: Existing boreholes and the development of any 
existing leases that can be reasonably expected to be developed in the 
near future, including boreholes and leases that may be used for fluid 
injection activities.



Sec. 194.55  Results of compliance assessments.

    (a) Compliance assessments shall consider and document uncertainty 
in the performance of the disposal system.
    (b) Probability distributions for uncertain disposal system 
parameter values used in compliance assessments shall be developed and 
documented in any compliance application.
    (c) Computational techniques which draw random samples from across 
the entire range of values of each probability distribution developed 
pursuant to paragraph (b) of this section shall be used to generate a 
range of:
    (1) Estimated committed effective doses received from all pathways 
pursuant to Sec. 194.51 and Sec. 194.52;
    (2) Estimated radionuclide concentrations in USDWs pursuant to Sec. 
194.53; and
    (3) Estimated dose equivalent received from USDWs pursuant to Sec. 
194.52 and Sec. 194.53.
    (d) The number of estimates generated pursuant to paragraph (c) of 
this section shall be large enough such that the maximum estimates of 
doses and concentrations generated exceed the 99th percentile of the 
population of estimates with at least a 0.95 probability.
    (e) Any compliance application shall display:
    (1) The full range of estimated radiation doses; and
    (2) The full range of estimated radionuclide concentrations.
    (f) Any compliance application shall document that there is at least 
a 95 percent level of statistical confidence that the mean and the 
median of the range of estimated radiation doses and the range of 
estimated radionuclide concentrations meet the requirements of Sec. 
191.15 and part 191, subpart C of this chapter, respectively.



                     Subpart D_Public Participation



Sec. 194.61  Advance notice of proposed rulemaking for certification.

    (a) Upon receipt of a compliance application submitted pursuant to 
section 8(d)(1) of the WIPP LWA and Sec. 194.11, the Agency will 
publish in the Federal Register an Advance Notice of Proposed Rulemaking 
announcing that a compliance application has been received, soliciting 
comment on such application, and announcing the Agency's intent to 
conduct a rulemaking to certify whether the WIPP facility will comply 
with the disposal regulations.
    (b) A copy of the compliance application will be made available for 
inspection in Agency dockets established pursuant to Sec. 194.67.
    (c) The notice will provide a public comment period of 120 days.
    (d) A public hearing concerning the notice will be held if a written 
request is received by the Administrator or the Administrator's 
authorized representative within 30 calendar days of the date of 
publication pursuant to paragraph (a) of this section.
    (e) Any comments received on the notice will be made available for 
inspection in the dockets established pursuant to Sec. 194.67.
    (f) Any comments received on the notice will be provided to the 
Department and the Department may submit to the Agency written responses 
to the comments.

[[Page 57]]



Sec. 194.62  Notice of proposed rulemaking for certification.

    (a) The Administrator will publish a Notice of Proposed Rulemaking 
in the Federal Register announcing the Administrator's proposed 
decision, pursuant to section 8(d)(1) of the WIPP LWA, whether to issue 
a certification that the WIPP facility will comply with the disposal 
regulations and soliciting comment on the proposal.
    (b) The notice will provide a public comment period of at least 120 
days.
    (c) The notice will announce public hearings in New Mexico.
    (d) Any comments received on the notice will be made available for 
inspection in the dockets established pursuant to Sec. 194.67.



Sec. 194.63  Final rule for certification.

    (a) The Administrator will publish a Final Rule in the Federal 
Register announcing the Administrator's decision, pursuant to section 
8(d)(1) of the WIPP LWA, whether to issue a certification that the WIPP 
facility will comply with the disposal regulations.
    (b) A document summarizing significant comments and issues arising 
from comments received on the Notice of Proposed Rulemaking, as well as 
the Administrator's response to such significant comments and issues, 
will be prepared and will be made available for inspection in the 
dockets established pursuant to Sec. 194.67.



Sec. 194.64  Documentation of continued compliance.

    (a) Upon receipt of documentation of continued compliance with the 
disposal regulations pursuant to section 8(f) of the WIPP LWA and Sec. 
194.11, the Administrator will publish a notice in the Federal Register 
announcing that such documentation has been received, soliciting comment 
on such documentation, and announcing the Administrator's intent to 
determine whether or not the WIPP facility continues to be in compliance 
with the disposal regulations.
    (b) Copies of documentation of continued compliance received by the 
Administrator will be made available for inspection in the dockets 
established pursuant to Sec. 194.67.
    (c) The notice will provide a public comment period of at least 30 
days after publication pursuant to paragraph (a) of this section.
    (d) Any comments received on such notice will be made available for 
public inspection in the dockets established pursuant to Sec. 194.67.
    (e) Upon completion of review of the documentation of continued 
compliance with the disposal regulations, the Administrator will publish 
a notice in the Federal Register announcing the Administrator's decision 
whether or not to re-certify the WIPP facility.



Sec. 194.65  Notice of proposed rulemaking for modification or revocation.

    (a) If the Administrator determines that any changes in activities 
or conditions pertaining to the disposal system depart significantly 
from the most recent compliance application, the Agency will publish a 
Notice of Proposed Rulemaking in the Federal Register announcing the 
Administrator's proposed decision on modification or revocation, and 
soliciting comment on the proposal.
    (b) Any comments received on the notice will be made available for 
inspection in the dockets established pursuant to Sec. 194.67.



Sec. 194.66  Final rule for modification or revocation.

    (a) The Administrator will publish a Final Rule in the Federal 
Register announcing the Administrator's decision on modification or 
revocation.
    (b) A document summarizing significant comments and issues arising 
from comments received on the Notice of Proposed Rulemaking as well as 
the Administrator's response to such significant comments and issues 
will be prepared and will be made available for inspection in the 
dockets established pursuant to Sec. 194.67.



Sec. 194.67  Dockets.

    The Agency will establish and maintain dockets in the State of New 
Mexico and Washington, DC. The dockets will consist of all relevant, 
significant information received from outside parties and all 
significant information

[[Page 58]]

considered by the Administrator in certifying whether the WIPP facility 
will comply with the disposal regulations, in certifying whether or not 
the WIPP facility continues to be in compliance with the disposal 
regulations, and in determining whether compliance certification should 
be modified, suspended or revoked.



Sec. Appendix A to Part 194--Certification of the Waste Isolation Pilot 
Plant's Compliance With the 40 CFR Part 191 Disposal Regulations and the 
                   40 CFR Part 194 Compliance Criteria

    In accordance with the provisions of the WIPP Compliance Criteria of 
this part, the Agency finds that the Waste Isolation Pilot Plant 
(``WIPP'') will comply with the radioactive waste disposal regulations 
at part 191, subparts B and C, of this chapter. Therefore, pursuant to 
Section 8(d)(2) of the WIPP Land Withdrawal Act (``WIPP LWA''), as 
amended, the Administrator certifies that the WIPP facility will comply 
with the disposal regulations. In accordance with the Agency's authority 
under Sec. 194.4(a), the certification of compliance is subject to the 
following conditions:
    Condition 1: Sec. 194.14(b), Disposal system design, panel closure 
system. The Department shall implement the panel seal design designated 
as Option D in Docket A-93-02, Item II-G-1 (October 29, 1996, Compliance 
Certification Application submitted to the Agency). The Option D design 
shall be implemented as described in Appendix PCS of Docket A-93-02, 
Item II-G-1, with the exception that the Department shall use Salado 
mass concrete (consistent with that proposed for the shaft seal system, 
and as described in Appendix SEAL of Docket A-93-02, Item II-G-1) 
instead of fresh water concrete.
    Condition 2: Sec. 194.22: Quality Assurance. The Secretary shall 
not allow any waste generator site other than the Los Alamos National 
Laboratory to ship waste for disposal at the WIPP until the Agency 
determines that the site has established and executed a quality 
assurance program, in accordance with Sec. Sec. 194.22(a)(2)(i), 
194.24(c)(3) and 194.24(c)(5) for waste characterization activities and 
assumptions. The Agency will determine compliance of site-specific 
quality assurance programs at waste generator sites using the process 
set forth in Sec. 194.8.
    Condition 3: Sec. 194.24: Waste Characterization. The Secretary may 
allow shipment for disposal at the WIPP of legacy debris waste at the 
Los Alamos National Laboratory (``LANL'') that can be characterized 
using the systems and processes inspected by the Agency and documented 
in Docket A-93-02, Item II-I-70. The Secretary shall not allow shipment 
of any waste from any additional LANL waste stream(s) or from any waste 
generator site other than LANL for disposal at the WIPP until the Agency 
has approved the processes for characterizing those waste streams for 
shipment using the process set forth in Sec. 194.8.
    Condition 4: Sec. 194.43, Passive institutional controls.
    (a) Not later than the final recertification application submitted 
prior to closure of the disposal system, the Department shall provide, 
to the Administrator or the Administrator's authorized representative:
    (1) a schedule for implementing passive institutional controls that 
has been revised to show that markers will be fabricated and emplaced, 
and other measures will be implemented, as soon as possible following 
closure of the WIPP. Such schedule should describe how testing of any 
aspect of the conceptual design will be completed prior to or soon after 
closure, and what changes to the design of passive institutional 
controls may be expected to result from such testing.
    (2) documentation showing that the granite pieces for the proposed 
monuments and information rooms described in Docket A-93-02, Item II-G-
1, and supplementary information may be: quarried (cut and removed from 
the ground) without cracking due to tensile stresses from handling or 
isostatic rebound; engraved on the scale required by the design; 
transported to the site, given the weight and dimensions of the granite 
pieces and the capacity of existing rail cars and rail lines; loaded, 
unloaded, and erected without cracking based on the capacity of 
available equipment; and successfully joined.
    (3) documentation showing that archives and record centers will 
accept the documents identified and will maintain them in the manner 
identified in Docket A-93-02, Item II-G-1.
    (4) documentation showing that proposed recipients of WIPP 
information other than archives and record centers will accept the 
information and make use of it in the manner indicated by the Department 
in Docket A-93-02, Item II-G-1 and supplementary information.
    (b) Upon receipt of the information required under paragraph (a) of 
this condition, the Agency will place such documentation in the public 
dockets identified in Sec. 194.67. The Agency will determine if a 
modification to the compliance certification in effect is necessary. Any 
such modification will be conducted in accordance with the requirements 
at Sec. Sec. 194.65 and 194.66.

[63 FR 27405, May 18, 1998]

[[Page 59]]



PART 195_RADON PROFICIENCY PROGRAMS--Table of Contents



                      Subpart A_General Provisions

Sec.
195.1 Purpose and applicability.
195.2 Definitions.

                             Subpart B_Fees

195.20 Fee payments.
195.30 Failure to remit fee.

    Authority: 15 U.S.C. 2665.

    Source: 59 FR 13175, Mar. 18, 1994, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 195.1  Purpose and applicability.

    (a) Purpose. The purpose of this part is to establish and collect 
the fees from applicants and participants required by section 305 of the 
Toxic Substances Control Act, U.S.C. 2665 to defray the cost to EPA for 
operating the following programs: The National Radon Measurement 
Proficiency (RMP) Program, the individual proficiency component of the 
RMP Program, and the National Radon Contractor Proficiency (RCP) 
Program.
    (b) Applicability. This part applies to all applicants and 
participants in the following EPA programs: The National Radon 
Measurement Proficiency Program, the individual proficiency component of 
the RMP Program, and the National Radon Contractor Proficiency Program.



Sec. 195.2  Definitions.

    Definitions in 15 U.S.C. 2602 and 2662 apply to this part unless 
otherwise specified in this section. In addition, the following 
definitions apply:
    Acceptance date means the date on which EPA enters the application 
into the data system.
    Accepted application refers to an application that has been entered 
into the data system.
    Applicant means an individual or organization that submits an 
application to the RMP program, including the individual proficiency 
component of the RMP program, or the RCP program. An applicant to the 
RMP program must submit a separate application for each location from 
which it provides radon measurement services. After the application is 
accepted by EPA, the applicant becomes a ``participant'' in the 
proficiency programs.
    Application means the documents submitted to EPA by applicants to 
the RMP and RCP programs which request participation in a program.
    Device/measurement device means a unit, component, or system 
designed to measure radon gas or radon decay products.
    EPA means the U.S. Environmental Protection Agency.
    Individual proficiency/RMP exam means the exam which evaluates 
individuals who provide radon measurement services in a residential 
environment.
    Listed participant in an individual or organization who has met all 
the requirements for listing in the RMP and RCP programs.
    Measurement method is a means of measuring radon gas or radon decay 
products encompassing similar measurement devices, sampling techniques, 
or analysis procedures.
    Organization is any individual, sole proprietorship, partnership, 
business, company, corporation, college or university, government agency 
(includes Federal, State and local government entities), laboratory, or 
institution.
    Participant is an individual or organization engaged in radon 
measurement and/or mitigation activities or in offering radon 
measurement and/or mitigation services to consumers and others, whose 
proficiency program application EPA has accepted.
    Primary measurement services (primary) refers to radon measurement 
services using a specific device which services include the capability 
to read and/or analyze the results generated from the device.
    Radon Contractor Proficiency (RCP) program refers to EPA's program 
to evaluate radon mitigation contractors and the contractor's ability to 
communicate information to the public.
    Radon Measurement Proficiency (RMP) program refers to EPA's program 
to evaluate organizations and individuals

[[Page 60]]

offering measurement services to consumers. It provides a means for 
organizations to demonstrate their proficiency in measuring radon and 
its decay products in indoor air.
    Radon mitigation contractor means a contractor who provides radon 
mitigation services to the public.
    Secondary radon measurement services (secondary) refers to radon 
measurement services that do not include the reading or the ability to 
analyze the results of the measurement devices used. These services may 
include placement and retrieval of devices, reporting results, and/or 
consultation with consumers.



                             Subpart B_Fees



Sec. 195.20  Fee payments.

    (a) Fee Amounts. Applicants to and participants in the RMP and RCP 
programs shall pay fees according to the following fee schedule:
    (1) Organizations Listed for or Seeking Listing for Primary 
Measurement Services in the RMP Program. (i) In order to remain a listed 
participant, each organization that is listed for primary measurement 
services in the RMP program on the effective date of this section shall 
pay an annual fee of $390 for each device.
    (ii) Each organization seeking listing for primary measurement 
services that submits an initial application after the effective date of 
this section shall pay an annual fee of $390 per device. This fee will 
be prorated quarterly, based on the acceptance date of an organization's 
application.
    (iii) Organizations that have or are seeking a listing for secondary 
measurement services for their primary devices will not be required to 
pay the additional $50 fee applicable to secondary organizations.
    (2) Organizations Listed for or Seeking Listing for Secondary 
Measurement Services in the RMP Program. (i) In order to remain a listed 
participant, each organization that is listed for secondary measurement 
services in the RMP program on the effective date of this section shall 
pay an annual fee of $50 for each business location listed.
    (ii) Each organization seeking listing for secondary measurement 
services that submits an initial application after the effective date of 
this section shall pay an annual fee of $50 for each business location 
listed. This fee will be prorated quarterly, based on the acceptance 
date of an organization's application.
    (iii) Primary organizations that have or are seeking secondary 
listings for methods other than those for which they are listed as a 
primary, are subject to the fees.
    (3) Individual Proficiency Component of the RMP Program. (i) In 
order to remain a listed participant, each individual listed in the RMP 
individual proficiency program on the effective date of this section 
shall pay an annual fee of $105.
    (ii) Each individual who submits an initial application after the 
effective date of this section shall pay an annual fee of $105. This fee 
will be prorated quarterly, based on the acceptance date of an 
individual's application.
    (iii) Individuals who have or are seeking listing status as an RMP 
primary or secondary organization are subject to the applicable fees 
under paragraphs (a)(1) and (2) of this section.
    (4) RCP Program. (i)(A) In order to remain a listed participant, 
each individual listed in the RCP program on the effective date of this 
section shall pay an annual fee of $210.
    (B) Each individual who is not a listed participant in the RCP 
program on the effective date of this section and submits an initial 
application after the effective date of this section shall pay an annual 
fee of $210. This fee will be prorated quarterly, based on the 
acceptance date of an individual's application.
    (ii) An organization or individual who is not a listed participant 
in EPA's radon proficiency programs on the effective date of this 
section and/or whose proficiency program application has not yet been 
accepted by EPA becomes subject to the fees described above once its 
application has been accepted by EPA. Fees for such organizations or 
individuals will be prorated quarterly, based on the acceptance date of 
the application. To remain listed, each participant in the RMP or RCP 
programs, whether individual or

[[Page 61]]

organization, shall submit the appropriate annual fee to EPA each year.
    (b) Exemptions. State and local governments are exempted from these 
fees under section 305(e)(2) of TSCA, 15 U.S.C. 2665.
    (c) Determination of Fees. (1) Participants listed in the RMP and 
RCP programs on the effective date of this section will be sent, by EPA, 
a payment invoice with its fee calculation at least 30 days before the 
payment is due. Fees will be assessed based on the current information 
in EPA's proficiency data bases. Participants who intend to pay the 
invoiced fee amount must send their payment to EPA following the 
procedures in the invoice. Organizations or individuals who wish to 
notify EPA of any errors or corrections they wish to make to their 
listing status must do so by following the instructions on the payment 
invoice. Corrected payment invoices for both the RMP Program and the RCP 
Program shall be sent to: Radon Proficiency Programs User Fees, c/o 
Sanford Cohen and Associates, Inc. (SC&A), 1418 I-85 Parkway, 
Montgomery, Alabama, 36106. EPA will review the corrections noted on the 
payment invoice, adjust the payment invoice amount (as appropriate) and 
issue a new invoice. Participants must pay the amount in the corrected 
payment invoice within 30 days of the date listed on the corrected 
invoice.
    (2) If the appropriate fee or a revised payment invoice for an 
individual or organization participating in the RMP or RCP program has 
not been received by EPA on or before the payment due date, EPA will 
send, by certified mail, notice that the individual or organization will 
be delisted from the proficiency program unless he/she pays the fee 
within 30 days of this second certified notification. If payment still 
has not been received by EPA after 30 days of the second certified 
notification, the organization's or individual's listing shall be 
removed from the proficiency program.
    (3) New or initial applicants to the RMP or RCP programs will be 
assessed a fee at the time of their initial application. EPA will send a 
payment invoice to the new applicant upon acceptance of the initial 
application. The applicant will be given at least 30 days from the date 
on the payment invoice to remit payment. The fee assessed will be 
prorated quarterly, based on the acceptance date of the application. If 
the appropriate fee has not been received by EPA by the payment due 
date, the application will be placed in an inactive file with no further 
action taken by EPA.
    (d) Payment Procedures. Each remittance to EPA under this section 
shall be in United States currency and shall be paid by certified check, 
personal or business check, or money order made payable to the order of 
the ``U.S. ENVIRONMENTAL PROTECTION AGENCY'' and sent to: U.S. EPA, 
Washington Financial Management Center, Radon Proficiency Program User 
Fees (IRAA), P.O. Box 952491, St. Louis, Missouri, 63195-2491. The fee 
payment shall include the original copy of the EPA payment invoice. 
Collection of fees will begin in the calendar year beginning January 1, 
1995. Specific guidance on how and when fees must be paid can be found 
in How to Pay Your Radon Proficiency Programs User Fees, U.S. EPA/Office 
of Radiation and Indoor Air. Copies of this document can be obtained by 
contacting the RIS at (334) 272-2797 or by FAX at (334) 260-9051.
    (e) Adjustment of Fees. (1) EPA shall collect 100 percent of its 
operating costs associated with its radon proficiency programs by 
calendar year 1998. As necessary, EPA shall adjust the fees established 
by this subpart each year over the next four years to collect the 
following percentages of program costs:

------------------------------------------------------------------------
    Year 1         Year 2         Year 3         Year 4        Year 5
------------------------------------------------------------------------
       30%          47.5%            65%          82.5%           100%
------------------------------------------------------------------------


Actual fees for each fiscal year will be calculated based on program 
costs and participation rates. New fee schedules will be published in 
the Federal Register as a technical amendment final rule to this part to 
become effective 30 days or more after publication.
    (2) EPA will use a three-step process to adjust the fees annually. 
First, EPA will estimate the costs of providing each of the proficiency 
programs for the upcoming year. EPA will account for future additional 
fixed costs (e.g.,

[[Page 62]]

updating examinations) and increases/decreases in variable costs due to 
inflation and other factors. In order to calculate increases/decreases 
in costs due to inflation, EPA may use one of the three following 
indices: the Federal General Schedule (GS) pay scale, the Consumer Price 
Index (CPI), and/or a component of the CPI, such as services. Second, 
EPA will estimate the number of participants for each program. At a 
minimum, these participation rates will be based on past and current 
program participation rates. Third, EPA shall calculate the per capita 
costs that individuals and organizations should pay to enable it to 
recover its fixed and variable costs each year for each program. EPA 
shall also consider potential industry impacts as it adjusts to levels 
to ultimately achieve full cost recovery over the period of five years.

[60 FR 41816, Aug. 14, 1995]



Sec. 195.30  Failure to remit fee.

    EPA will not process an application or continue a participant's 
listing in the National Radon Measurement Proficiency program, 
individual proficiency component of the RMP program, or the National 
Radon Contractor Proficiency program until the appropriate remittance 
provided in Sec. 195.20(a) has been received by EPA. Failure by a 
currently EPA-listed organization or individual to remit the required 
fees in a timely manner will result in the loss of that organization's 
or individual's listing status as specified in Sec. 195.20(c).



PART 197_PUBLIC HEALTH AND ENVIRONMENTAL RADIATION PROTECTION STANDARDS
FOR YUCCA MOUNTAIN, NEVADA--Table of Contents



     Subpart A_Public Health and Environmental Standards for Storage

Sec.
197.1 What does subpart A cover?
197.2 What definitions apply in subpart A?
197.3 How is subpart A implemented?
197.4 What standard must DOE meet?
197.5 When will this part take effect?

    Subpart B_Public Health and Environmental Standards for Disposal

197.11 What does subpart B cover?
197.12 What definitions apply in subpart B?
197.13 How is subpart B implemented?
197.14 What is a reasonable expectation?
197.15 How must DOE take into account the changes that will occur during 
          the period of geologic stability?

                     Individual-Protection Standard

197.20 What standard must DOE meet?
197.21 Who is the reasonably maximally exposed individual?

                        Human-Intrusion Standard

197.25 What standard must DOE meet?
197.26 What are the circumstances of the human intrusion?

                    Ground Water Protection Standards

197.30 What standards must DOE meet?
197.31 What is a representative volume?

                          Additional Provisions

197.35 [Reserved]
197.36 Are there limits on what DOE must consider in the performance 
          assessments?
197.37 Can EPA amend this rule?
197.38 Are the Individual Protection and Ground Water Protection 
          Standards Severable?

Appendix A to Part 197--Calculation of Annual Committed Effective Dose 
          Equivalent

    Authority: Sec. 801, Pub. L. 102-486, 106 Stat. 2921, 42 U.S.C. 
10141 n.

    Source: 66 FR 32132, June 13, 2001, unless otherwise noted.



     Subpart A_Public Health and Environmental Standards for Storage



Sec. 197.1  What does subpart A cover?

    This subpart covers the storage of radioactive material by DOE in 
the Yucca Mountain repository and on the Yucca Mountain site.



Sec. 197.2  What definitions apply in subpart A?

    Annual committed effective dose equivalent means the effective dose 
equivalent received by an individual in one year from radiation sources 
external to the individual plus the committed effective dose equivalent.

[[Page 63]]

    Committed effective dose equivalent means the effective dose 
equivalent received over a period of time (e.g., 30 years,), as 
determined by NRC, by an individual from radionuclides internal to the 
individual following a one-year intake of those radionuclides.
    DOE means the Department of Energy.
    Effective dose equivalent means the sum of the products of the dose 
equivalent received by specified tissues following an exposure of, or an 
intake of radionuclides into, specified tissues of the body, multiplied 
by appropriate weighting factors. Annual committed effective dose 
equivalents shall be calculated using weighting factors in appendix A of 
this part, unless otherwise directed by NRC in accordance with the 
introduction to appendix A of this part.
    EPA means the Environmental Protection Agency.
    General environment means everywhere outside the Yucca Mountain 
site, the Nellis Air Force Range, and the Nevada Test Site.
    High-level radioactive waste means:
    (1) The highly radioactive material resulting from the reprocessing 
of spent nuclear fuel, including liquid waste produced directly in 
reprocessing and any solid material derived from such liquid waste that 
contains fission products in sufficient concentrations; and
    (2) Other highly radioactive material that the Commission, 
consistent with existing law, determines by rule requires permanent 
isolation.
    Member of the public means anyone who is not a radiation worker for 
purposes of worker protection.
    NRC means the Nuclear Regulatory Commission.
    Radioactive material means matter composed of or containing 
radionuclides subject to the Atomic Energy Act of 1954, as amended (42 
U.S.C. 2014 et seq.). Radioactive material includes, but is not limited 
to, high-level radioactive waste and spent nuclear fuel.
    Spent nuclear fuel means fuel that has been withdrawn from a nuclear 
reactor following irradiation, the constituent elements of which have 
not been separated by reprocessing.
    Storage means retention (and any associated activity, operation, or 
process necessary to carry out successful retention) of radioactive 
material with the intent or capability to readily access or retrieve 
such material.
    Yucca Mountain repository means the excavated portion of the 
facility constructed underground within the Yucca Mountain site.
    Yucca Mountain site means:
    (1) The site recommended by the Secretary of DOE to the President 
under section 112(b)(1)(B) of the Nuclear Waste Policy Act of 1982 (42 
U.S.C. 10132(b)(1)(B)) on May 27, 1986; or
    (2) The area under the control of DOE for the use of Yucca Mountain 
activities at the time of licensing, if the site designated under the 
Nuclear Waste Policy Act is amended by Congress prior to the time of 
licensing.

[66 FR 32132, June 13, 2001, as amended at 73 FR 61287, Oct. 15, 2008]



Sec. 197.3  How is subpart A implemented?

    The NRC implements this subpart A. The DOE must demonstrate to NRC 
that normal operations at the Yucca Mountain site will and do occur in 
compliance with this subpart before NRC may grant or continue a license 
for DOE to receive and possess radioactive material within the Yucca 
Mountain site.



Sec. 197.4  What standard must DOE meet?

    The DOE must ensure that no member of the public in the general 
environment receives more than an annual committed effective dose 
equivalent of 150 microsieverts (15 millirems) from the combination of:
    (a) Management and storage (as defined in 40 CFR 191.2) of 
radioactive material that:
    (1) Is subject to 40 CFR 191.3(a); and
    (2) Occurs outside of the Yucca Mountain repository but within the 
Yucca Mountain site; and
    (b) Storage (as defined in Sec. 197.2) of radioactive material 
inside the Yucca Mountain repository.



Sec. 197.5  When will this part take effect?

    The standards in this part take effect on July 13, 2001.

[[Page 64]]



    Subpart B_Public Health and Environmental Standards for Disposal



Sec. 197.11  What does subpart B cover?

    This subpart covers the disposal of radioactive material in the 
Yucca Mountain repository by DOE.



Sec. 197.12  What definitions apply in subpart B?

    All definitions in subpart A of this part and the following:
    Accessible environment means any point outside of the controlled 
area, including:
    (1) The atmosphere (including the atmosphere above the surface area 
of the controlled area);
    (2) Land surfaces;
    (3) Surface waters;
    (4) Oceans; and
    (5) The lithosphere.
    Aquifer means a water-bearing underground geological formation, 
group of formations, or part of a formation (excluding perched water 
bodies) that can yield a significant amount of ground water to a well or 
spring.
    Barrier means any material, structure, or feature that, for a period 
to be determined by NRC, prevents or substantially reduces the rate of 
movement of water or radionuclides from the Yucca Mountain repository to 
the accessible environment, or prevents the release or substantially 
reduces the release rate of radionuclides from the waste. For example, a 
barrier may be a geologic feature, an engineered structure, a canister, 
a waste form with physical and chemical characteristics that 
significantly decrease the mobility of radionuclides, or a material 
placed over and around the waste, provided that the material 
substantially delays movement of water or radionuclides.
    Controlled area means:
    (1) The surface area, identified by passive institutional controls, 
that encompasses no more than 300 square kilometers. It must not extend 
farther:
    (a) South than 36[deg]40[min]13.6661[sec] north latitude, in the 
predominant direction of ground water flow; and
    (b) Than five kilometers from the repository footprint in any other 
direction; and
    (2) The subsurface underlying the surface area.
    Disposal means the emplacement of radioactive material into the 
Yucca Mountain disposal system with the intent of isolating it for as 
long as reasonably possible and with no intent of recovery, whether or 
not the design of the disposal system permits the ready recovery of the 
material. Disposal of radioactive material in the Yucca Mountain 
disposal system begins when all of the ramps and other openings into the 
Yucca Mountain repository are sealed.
    Ground water means water that is below the land surface and in a 
saturated zone.
    Human intrusion means breaching of any portion of the Yucca Mountain 
disposal system, within the repository footprint, by any human activity.
    Passive institutional controls means:
    (1) Markers, as permanent as practicable, placed on the Earth's 
surface;
    (2) Public records and archives;
    (3) Government ownership and regulations regarding land or resource 
use; and
    (4) Other reasonable methods of preserving knowledge about the 
location, design, and contents of the Yucca Mountain disposal system.
    Peak dose means the highest annual committed effective dose 
equivalent projected to be received by the reasonably maximally exposed 
individual.
    Performance assessment means an analysis that:
    (1) Identifies the features, events, processes, (except human 
intrusion), and sequences of events and processes (except human 
intrusion) that might affect the Yucca Mountain disposal system and 
their probabilities of occurring;
    (2) Examines the effects of those features, events, processes, and 
sequences of events and processes upon the performance of the Yucca 
Mountain disposal system; and
    (3) Estimates the annual committed effective dose equivalent 
incurred by the reasonably maximally exposed individual, including the 
associated uncertainties, as a result of releases caused by all 
significant features, events, processes, and sequences of

[[Page 65]]

events and processes, weighted by their probability of occurrence.
    Period of geologic stability means the time during which the 
variability of geologic characteristics and their future behavior in and 
around the Yucca Mountain site can be bounded, that is, they can be 
projected within a reasonable range of possibilities. This period is 
defined to end at 1 million years after disposal.
    Plume of contamination means that volume of ground water in the 
predominant direction of ground water flow that contains radioactive 
contamination from releases from the Yucca Mountain repository. It does 
not include releases from any other potential sources on or near the 
Nevada Test Site.
    Repository footprint means the outline of the outermost locations of 
where the waste is emplaced in the Yucca Mountain repository.
    Slice of the plume means a cross-section of the plume of 
contamination with sufficient thickness parallel to the prevalent 
direction of flow of the plume that it contains the representative 
volume.
    Total dissolved solids means the total dissolved (filterable) solids 
in water as determined by use of the method specified in 40 CFR part 
136.
    Undisturbed performance means that human intrusion or the occurrence 
of unlikely natural features, events, and processes do not disturb the 
disposal system.
    Undisturbed Yucca Mountain disposal system means that the Yucca 
Mountain disposal system is not affected by human intrusion.
    Waste means any radioactive material emplaced for disposal into the 
Yucca Mountain repository.
    Well-capture zone means the volume from which a well pumping at a 
defined rate is withdrawing water from an aquifer. The dimensions of the 
well-capture zone are determined by the pumping rate in combination with 
aquifer characteristics assumed for calculations, such as hydraulic 
conductivity, gradient, and the screened interval.
    Yucca Mountain disposal system means the combination of underground 
engineered and natural barriers within the controlled area that prevents 
or substantially reduces releases from the waste.

[66 FR 32132, June 13, 2001, as amended at 73 FR 61287, Oct. 15, 2008]



Sec. 197.13  How is Subpart B implemented?

    The NRC implements this subpart B. The DOE must demonstrate to NRC 
that there is a reasonable expectation of compliance with this subpart 
before NRC may issue a license.
    (a) The NRC will determine compliance, based upon the arithmetic 
mean of the projected doses from DOE's performance assessments for the 
period within 1 million years after disposal, with:
    (1) Sections 197.20(a)(1) and 197.20(a)(2) of this subpart; and
    (2) Sections 197.25(b)(1), 197.25(b)(2), and 197.30 of this subpart, 
if performance assessment is used to demonstrate compliance with either 
or both of these sections.
    (b) [Reserved]

[73 FR 61287, Oct. 15, 2008]



Sec. 197.14  What is a reasonable expectation?

    Reasonable expectation means that NRC is satisfied that compliance 
will be achieved based upon the full record before it. Characteristics 
of reasonable expectation include that it:
    (a) Requires less than absolute proof because absolute proof is 
impossible to attain for disposal due to the uncertainty of projecting 
long-term performance;
    (b) Accounts for the inherently greater uncertainties in making 
long-term projections of the performance of the Yucca Mountain disposal 
system;
    (c) Does not exclude important parameters from assessments and 
analyses simply because they are difficult to precisely quantify to a 
high degree of confidence; and
    (d) Focuses performance assessments and analyses upon the full range 
of defensible and reasonable parameter distributions rather than only 
upon extreme physical situations and parameter values.

[[Page 66]]



Sec. 197.15  How must DOE take into account the changes that will 
occur during the period of geologic stability?

    The DOE should not project changes in society, the biosphere (other 
than climate), human biology, or increases or decreases of human 
knowledge or technology. In all analyses done to demonstrate compliance 
with this part, DOE must assume that all of those factors remain 
constant as they are at the time of license application submission to 
NRC. However, DOE must vary factors related to the geology, hydrology, 
and climate based upon cautious, but reasonable assumptions of the 
changes in these factors that could affect the Yucca Mountain disposal 
system during the period of geologic stability, consistent with the 
requirements for performance assessments specified at Sec. 197.36.

[73 FR 61287, Oct. 15, 2008]

                     Individual-Protection Standard



Sec. 197.20  What standard must DOE meet?

    (a) The DOE must demonstrate, using performance assessment, that 
there is a reasonable expectation that the reasonably maximally exposed 
individual receives no more than the following annual committed 
effective dose equivalent from releases from the undisturbed Yucca 
Mountain disposal system:
    (1) 150 microsieverts (15 millirems) for 10,000 years following 
disposal; and
    (2) 1 millisievert (100 millirems) after 10,000 years, but within 
the period of geologic stability.
    (b) The DOE's performance assessment must include all potential 
pathways of radionuclide transport and exposure.

[73 FR 61287, Oct. 15, 2008]



Sec. 197.21  Who is the reasonably maximally exposed individual?

    The reasonably maximally exposed individual is a hypothetical person 
who meets the following criteria:
    (a) Lives in the accessible environment above the highest 
concentration of radionuclides in the plume of contamination;
    (b) Has a diet and living style representative of the people who now 
reside in the Town of Amargosa Valley, Nevada. The DOE must use 
projections based upon surveys of the people residing in the Town of 
Amargosa Valley, Nevada, to determine their current diets and living 
styles and use the mean values of these factors in the assessments 
conducted for Sec. Sec. 197.20 and 197.25; and
    (c) Drinks 2 liters of water per day from wells drilled into the 
ground water at the location specified in paragraph (a) of this section.

                        Human-Intrusion Standard



Sec. 197.25  What standard must DOE meet?

    (a) The DOE must determine the earliest time after disposal that the 
waste package would degrade sufficiently that a human intrusion (see 
Sec. 197.26) could occur without recognition by the drillers.
    (b) The DOE must demonstrate that there is a reasonable expectation 
that the reasonably maximally exposed individual will receive an annual 
committed effective dose equivalent, as a result of the human intrusion, 
of no more than:
    (1) 150 microsieverts (15 millirems) for 10,000 years following 
disposal; and
    (2) 1 millisievert (100 millirems) after 10,000 years, but within 
the period of geologic stability.
    (c) The analysis must include all potential environmental pathways 
of radionuclide transport and exposure.

[73 FR 61288, Oct. 15, 2008]



Sec. 197.26  What are the circumstances of the human intrusion?

    For the purposes of the analysis of human intrusion, DOE must make 
the following assumptions:
    (a) There is a single human intrusion as a result of exploratory 
drilling for ground water;
    (b) The intruders drill a borehole directly through a degraded waste 
package into the uppermost aquifer underlying the Yucca Mountain 
repository;
    (c) The drillers use the common techniques and practices that are 
currently employed in exploratory drilling for

[[Page 67]]

ground water in the region surrounding Yucca Mountain;
    (d) Careful sealing of the borehole does not occur, instead natural 
degradation processes gradually modify the borehole;
    (e) Only releases of radionuclides that occur as a result of the 
intrusion and that are transported through the resulting borehole to the 
saturated zone are projected; and
    (f) No releases are included which are caused by unlikely natural 
processes and events.

                    Ground Water Protection Standards



Sec. 197.30  What standards must DOE meet?

    The DOE must demonstrate that there is a reasonable expectation 
that, for 10,000 years of undisturbed performance after disposal, 
releases of radionuclides from waste in the Yucca Mountain disposal 
system into the accessible environment will not cause the level of 
radioactivity in the representative volume of ground water to exceed the 
limits in the following Table 1:

      Table 1--Limits on Radionuclides in the Representative Volume
------------------------------------------------------------------------
   Radionuclide or type of                               Is natural
      radiation emitted               Limit         background included?
------------------------------------------------------------------------
Combined radium-226 and       5 picocuries per      Yes.
 radium-228.                   liter.
Gross alpha activity          15 picocuries per     Yes.
 (including radium-226 but     liter.
 excluding radon and
 uranium).
Combined beta and photon      40 microsieverts (4   No.
 emitting radionuclides.       millirem) per year
                               to the whole body
                               or any organ, based
                               on drinking 2
                               liters of water per
                               day from the
                               representative
                               volume.
------------------------------------------------------------------------



Sec. 197.31  What is a representative volume?

    (a) It is the volume of ground water that would be withdrawn 
annually from an aquifer containing less than 10,000 milligrams of total 
dissolved solids per liter of water to supply a given water demand. The 
DOE must project the concentration of radionuclides released from the 
Yucca Mountain disposal system that will be in the representative 
volume. The DOE must then use the projected concentrations to 
demonstrate a reasonable expectation to NRC that the Yucca Mountain 
disposal system complies with Sec. 197.30. The DOE must make the 
following assumptions concerning the representative volume:
    (1) It includes the highest concentration level in the plume of 
contamination in the accessible environment;
    (2) Its position and dimensions in the aquifer are determined using 
average hydrologic characteristics which have cautious, but reasonable, 
values representative of the aquifers along the radionuclide migration 
path from the Yucca Mountain repository to the accessible environment as 
determined by site characterization; and
    (3) It contains 3,000 acre-feet of water (about 3,714,450,000 liters 
or 977,486,000 gallons).
    (b) The DOE must use one of two alternative methods for determining 
the dimensions of the representative volume. The DOE must propose its 
chosen method, and any underlying assumptions, to NRC for approval.
    (1) The DOE may calculate the dimensions as a well-capture zone. If 
DOE uses this approach, it must assume that the:
    (i) Water supply well(s) has (have) characteristics consistent with 
public water supply wells in the Town of Amargosa Valley, Nevada, for 
example, well-bore size and length of the screened intervals;
    (ii) Screened interval(s) include(s) the highest concentration in 
the plume of contamination in the accessible environment; and
    (iii) Pumping rates and the placement of the well(s) must be set to 
produce an annual withdrawal equal to the representative volume and to 
tap the highest concentration within the plume of contamination.
    (2) The DOE may calculate the dimensions as a slice of the plume. If 
DOE uses this approach, it must:

[[Page 68]]

    (i) Propose to NRC, for its approval, where the location of the edge 
of the plume of contamination occurs. For example, the place where the 
concentration of radionuclides reaches 0.1% of the level of the highest 
concentration in the accessible environment;
    (ii) Assume that the slice of the plume is perpendicular to the 
prevalent direction of flow of the aquifer; and
    (iii) Assume that the volume of ground water contained within the 
slice of the plume equals the representative volume.

                          Additional Provisions



Sec. 197.35  [Reserved]



Sec. 197.36  Are there limits on what DOE must consider in the 
performance assessments?

    (a) Yes, there are limits on what DOE must consider in the 
performance assessments.
    (1) The DOE's performance assessments conducted to show compliance 
with Sec. Sec. 197.20(a)(1), 197.25(b)(1), and 197.30 shall not include 
consideration of very unlikely features, events, or processes, i.e., 
those that are estimated to have less than one chance in 100,000,000 per 
year of occurring. Features, events, and processes with a higher chance 
of occurring shall be considered for use in performance assessments 
conducted to show compliance with Sec. Sec. 197.20(a)(1), 197.25(b)(1), 
and 197.30, except as stipulated in paragraph (b) of this section. In 
addition, unless otherwise specified in these standards or NRC 
regulations, DOE's performance assessments need not evaluate the impacts 
resulting from features, events, and processes or sequences of events 
and processes with a higher chance of occurring if the results of the 
performance assessments would not be changed significantly in the 
initial 10,000-year period after disposal.
    (2) The same features, events, and processes identified in paragraph 
(a)(1) of this section shall be used in performance assessments 
conducted to show compliance with Sec. Sec. 197.20(a)(2) and 
197.25(b)(2), with additional considerations as stipulated in paragraph 
(c) of this section.
    (b) For performance assessments conducted to show compliance with 
Sec. Sec. 197.25(b) and 197.30, DOE's performance assessments shall 
exclude unlikely features, events, or processes, or sequences of events 
and processes. The DOE should use the specific probability of the 
unlikely features, events, and processes as specified by NRC.
    (c) For performance assessments conducted to show compliance with 
Sec. Sec. 197.20(a)(2) and 197.25(b)(2), DOE's performance assessments 
shall project the continued effects of the features, events, and 
processes included in paragraph (a) of this section beyond the 10,000-
year post-disposal period through the period of geologic stability. The 
DOE must evaluate all of the features, events, or processes included in 
paragraph (a) of this section, and also:
    (1) The DOE must assess the effects of seismic and igneous 
scenarios, subject to the probability limits in paragraph (a) of this 
section for very unlikely features, events, and processes. Performance 
assessments conducted to show compliance with Sec. 197.25(b)(2) are 
also subject to the probability limits for unlikely features, events, 
and processes as specified by NRC.
    (i) The seismic analysis may be limited to the effects caused by 
damage to the drifts in the repository, failure of the waste packages, 
and changes in the elevation of the water table under Yucca Mountain. 
NRC may determine the magnitude of the water table rise and its 
significance on the results of the performance assessment, or NRC may 
require DOE to demonstrate the magnitude of the water table rise and its 
significance in the license application. If NRC determines that the 
increased elevation of the water table does not significantly affect the 
results of the performance assessment, NRC may choose to not require its 
consideration in the performance assessment.
    (ii) The igneous analysis may be limited to the effects of a 
volcanic event directly intersecting the repository. The igneous event 
may be limited to that causing damage to the waste packages directly, 
causing releases of radionuclides to the biosphere, atmosphere, or 
ground water.
    (2) The DOE must assess the effects of climate change. The climate 
change analysis may be limited to the effects

[[Page 69]]

of increased water flow through the repository as a result of climate 
change, and the resulting transport and release of radionuclides to the 
accessible environment. The nature and degree of climate change may be 
represented by constant climate conditions. The analysis may commence at 
10,000 years after disposal and shall extend through the period of 
geologic stability. The NRC shall specify in regulation the values to be 
used to represent climate change, such as temperature, precipitation, or 
infiltration rate of water.
    (3) The DOE must assess the effects of general corrosion on 
engineered barriers. The DOE may use a constant representative corrosion 
rate throughout the period of geologic stability or a distribution of 
corrosion rates correlated to other repository parameters.

[73 FR 61288, Oct. 15, 2008]



Sec. 197.37  Can EPA amend this rule?

    Yes. We can amend this rule by conducting another notice-and-comment 
rulemaking. Such a rulemaking must include a public comment period. 
Also, we may hold one or more public hearings, if we receive a written 
request to do so.



Sec. 197.38  Are the Individual Protection and Ground Water Protection
Standards Severable?

    Yes. The individual protection and ground water protection standards 
are severable.



 Sec. Appendix A to Part 197--Calculation of Annual Committed Effective 
                             Dose Equivalent

    Unless otherwise directed by NRC, DOE shall use the radiation 
weighting factors and tissue weighting factors in this Appendix to 
calculate the internal component of the annual committed effective dose 
equivalent for compliance with Sec. Sec. 197.20 and 197.25 of this 
part. NRC may allow DOE to use updated factors issued after the 
effective date of this regulation. Any such factors shall have been 
issued by consensus scientific organizations and incorporated by EPA 
into Federal radiation guidance in order to be considered generally 
accepted and eligible for this use. Further, they must be compatible 
with the effective dose equivalent dose calculation methodology 
established in ICRP 26 and 30, and continued in ICRP 60 and 72, and 
incorporated in this appendix.

                           I. Equivalent Dose

    The calculation of the committed effective dose equivalent (CEDE) 
begins with the determination of the equivalent dose, HT, to 
a tissue or organ, T, listed in Table A.2 below by using the equation:
[GRAPHIC] [TIFF OMITTED] TR15OC08.000

where DT,R is the absorbed dose in rads (one gray, an SI 
unit, equals 100 rads) averaged over the tissue or organ, T, due to 
radiation type, R, and wR is the radiation weighting factor 
which is given in Table A.1 below. The unit of equivalent dose is the 
rem (sievert, in SI units).

              Table A.1--Radiation weighting factors, wR\1\
------------------------------------------------------------------------
            Radiation type and energy range \2\                wR value
------------------------------------------------------------------------
Photons, all energies......................................            1
Electrons and muons, all energies..........................            1
Neutrons, energy
    < 10 keV...............................................            5
    10 keV to 100 keV......................................           10
     100 keV to 2 MeV...........................           20
    2 MeV to 20 MeV.............................           10
     20 MeV.....................................            5
Protons, other than recoil protons,  2 MeV......            5
Alpha particles, fission fragments, heavy nuclei...........          20
------------------------------------------------------------------------
\1\ All values relate to the radiation incident on the body or, for
  internal sources, emitted from the source.
\2\ See paragraph A14 in ICRP Publication 60 for the choice of values
  for other radiation types and energies not in the table.

                      II. Effective Dose Equivalent

    The next step is the calculation of the effective dose equivalent, 
E. The probability of occurrence of a stochastic effect in a tissue or 
organ is assumed to be proportional to the equivalent dose in the tissue 
or organ. The constant of proportionality differs for the various 
tissues of the body, but in assessing health detriment the total risk is 
required. This is taken into account using the tissue weighting factors, 
wT in Table A.2, which represent the proportion of the 
stochastic risk resulting from irradiation of the tissue or organ to the 
total risk when the whole body is irradiated uniformly and HT 
is the equivalent dose in the tissue or organ, T, in the equation:
[GRAPHIC] [TIFF OMITTED] TR15OC08.001


                 Table A.2--Tissue weighting factors, wT
------------------------------------------------------------------------
                      Tissue or organ                          wT value
------------------------------------------------------------------------
Gonads.....................................................         0.20
Bone marrow (red)..........................................         0.12
Colon......................................................         0.12
Lung.......................................................         0.12
Stomach....................................................         0.12

[[Page 70]]

 
Bladder....................................................         0.05
Breast.....................................................         0.05
Liver......................................................         0.05
Esophagus..................................................         0.05
Thyroid....................................................         0.05
Skin.......................................................         0.01
Bone surface...............................................         0.01
Remainder..................................................    a b 0.05
------------------------------------------------------------------------
\a\ Remainder is composed of the following tissues: adrenals, brain,
  extrathoracic airways, small intestine, kidneys, muscle, pancreas,
  spleen, thymus, and uterus.
\b\ The value 0.05 is applied to the mass-weighted average dose to the
  Remainder tissues group, except when the following ``splitting rule''
  applies: If a tissue of Remainder receives a dose in excess of that
  received by any of the 12 tissues for which weighting factors are
  specified, a weighting factor of 0.025 (half of Remainder) is applied
  to that tissue or organ and 0.025 to the mass-averaged committed
  equivalent dose equivalent in the rest of the Remainder tissues.

          III. Annual Committed Tissue or Organ Equivalent Dose

    For internal irradiation from incorporated radionuclides, the total 
absorbed dose will be spread out in time, being gradually delivered as 
the radionuclide decays. The time distribution of the absorbed dose rate 
will vary with the radionuclide, its form, the mode of intake and the 
tissue within which it is incorporated. To take account of this 
distribution the quantity committed equivalent dose, 
HT([tau]) where [tau] is the integration time in years 
following an intake over any particular year, is used and is the 
integral over time of the equivalent dose rate in a particular tissue or 
organ that will be received by an individual following an intake of 
radioactive material into the body:
[GRAPHIC] [TIFF OMITTED] TR15OC08.002

for a single intake of activity at time t0 where 
HT([tau]) is the relevant equivalent-dose rate in a tissue or 
organ at time t. For the purposes of this rule, the previously mentioned 
single intake may be considered to be an annual intake.

IV. Internal Component of the Annual Committed Effective Dose Equivalent

    If the annual committed equivalent doses to the individual tissues 
or organs resulting from an annual intake are multiplied by the 
appropriate weighting factors, wT, from table A.2, and then 
summed, the result will be the internal component of the annual 
committed effective dose equivalent E([tau]):
[GRAPHIC] [TIFF OMITTED] TR15OC08.003


[73 FR 61288, Oct. 15, 2008]

[[Page 71]]



                  SUBCHAPTER G_NOISE ABATEMENT PROGRAMS





PART 201_NOISE EMISSION STANDARDS FOR TRANSPORTATION EQUIPMENT;
INTERSTATE RAIL CARRIERS--Table of Contents



                      Subpart A_General Provisions

Sec.
201.1 Definitions.

Appendix A to Subpart A of Part 201--Switcher Locomotives

         Subpart B_Interstate Rail Carrier Operations Standards

201.10 Applicability.
201.11 Standard for locomotive operation under stationary conditions.
201.12 Standard for locomotive operation under moving conditions.
201.13 Standard for rail car operations.
201.14 Standard for retarders.
201.15 Standard for car coupling operations.
201.16 Standard for locomotive load cell test stands.

                     Subpart C_Measurement Criteria

201.20 Applicability and purpose.
201.21 Quantities measured.
201.22 Measurement instrumentation.
201.23 Test site, weather conditions and background noise criteria for 
          measurement at a 30 meter (100 feet) distance of the noise 
          from locomotive and rail car operations and locomotive load 
          cell test stands.
201.24 Procedures for measurement at a 30 meter (100 feet) distance of 
          the noise from locomotive and rail car operations and 
          locomotive load cell test stands.
201.25 Measurement location and weather conditions for measurement on 
          receiving property of the noise of retarders, car coupling, 
          locomotive load cell test stands, and stationary locomotives.
201.26 Procedures for the measurement on receiving property of retarder 
          and car coupling noise.
201.27 Procedures for: (1) Determining applicability of the locomotive 
          load cell test stand standard and switcher locomotive standard 
          by noise measurement on a receiving property; (2) measurement 
          of locomotive load cell test stands more than 120 meters (400 
          feet) on a receiving property.
201.28 Testing by railroad to determine probable compliance with the 
          standard.

    Authority: Noise Control Act of 1972, sec. 17(a), 86 Stat. 1234 (42 
U.S.C. 4916(a)).

    Source: 45 FR 1263, Jan. 4, 1980, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 201.1  Definitions.

    As used in this part, all terms not defined herein shall have the 
meaning given them in the Act:
    (a) Act means the Noise Control Act of 1972 (Pub. L. 92-574, 86 
Stat. 1234).
    (b) Car Coupling Sound means a sound which is heard and identified 
by the observer as that of car coupling impact, and that causes a sound 
level meter indicator (FAST) to register an increase of at least ten 
decibels above the level observed immediately before hearing the sound.
    (c) Carrier means a common carrier by railroad, or partly by 
railroad and partly by water, within the continental United States, 
subject to the Interstate Commerce Act, as amended, excluding street, 
suburban, and interurban electric railways unless operated as a part of 
a general railroad system of transportation.
    (d) Classification of Railroads means the division of railroad 
industry operating companies by the Interstate Commerce Commission into 
three categories. As of 1978, Class I railroads must have annual 
revenues of $50 million or greater, Class II railroads must have annual 
revenues of between $10 and $50 million, and Class III railroads must 
have less than $10 million in annual revenues.
    (e) Commercial Property means any property that is normally 
accessible to the public and that is used for any of the purposes 
described in the following standard land use codes (reference Standard 
Land Use Coding Manual. U.S. DOT/FHWA, reprinted March 1977): 53-59, 
Retail Trade; 61-64, Finance, Insurance, Real Estate, Personal, Business 
and Repair Services; 652-659, Legal and other professional services; 
671, 672, and 673 Governmental Services; 692 and 699, Welfare, 
Charitable and Other Miscellaneous Services; 712 and 719, Nature 
exhibitions and other Cultural Activities; 721, 723, and 729, 
Entertainment, Public and other Public Assembly; and

[[Page 72]]

74-79, Recreational, Resort, Park and other Cultural Activities.
    (f) dB(A) is an abbreviation meaning A-weighted sound level in 
decibels, reference: 20 micropascals.
    (g) Day-night Sound Level means the 24-hour time of day weighted 
equivalent sound level, in decibels, for any continuous 24-hour period, 
obtained after addition of ten decibels to sound levels produced in the 
hours from 10 p.m. to 7 a.m. (2200-0700). It is abbreviated as 
Ldn.
    (h) Decibel means the unit measure of sound level, abbreviated as 
dB.
    (i) Energy Average Level means a quantity calculated by taking ten 
times the common logarithm of the arithmetic average of the antilogs of 
one-tenth of each of the levels being averaged. The levels may be of any 
consistent type, e.g. maximum sound levels, sound exposure levels, and 
day-night sound levels.
    (j) Energy Summation of Levels means a quantity calculated by taking 
ten times the common logarithm of the sum of the antilogs of one-tenth 
of each of the levels being summed. The levels may be of any consistent 
type, e.g., day-night sound level or equivalent sound level.
    (k) Equivalent Sound Level means the level, in decibels, of the 
mean-square A-weighted sound pressure during a stated time period, with 
reference to the square of the standard reference sound pressure of 20 
micropascals. It is the level of the sound exposure divided by the time 
period and is abbreviated as Leq.
    (l) Fast Meter Response means that the ``fast'' response of the 
sound level meter shall be used. The fast dynamic response shall comply 
with the meter dynamic characteristics in paragraph 5.3 of the American 
National Standard Specification for Sound Level Meters. ANSI S1.4-1971. 
This publication is available from the American National Standards 
Institute, Inc., 1430 Broadway, New York, New York 10018.
    (m) Idle means that condition where all engines capable of providing 
motive power to the locomotive are set at the lowest operating throttle 
position; and where all auxiliary non-motive power engines are not 
operating.
    (n) Interstate Commerce means the commerce between any place in a 
State and any place in another State, or between places in the same 
State through another State, whether such commerce moves wholly by rail 
or partly by rail and partly by motor vehicle, express, or water. This 
definition of ``interstate commerce'' for purposes of this regulation is 
similar to the definition of ``interstate commerce'' in section 203(a) 
of the Interstate Commerce Act (49 U.S.C. 303(a)).
    (o) Load Cell means a device external to the locomotive, of high 
electrical resistance, used in locomotive testing to simulate engine 
loading while the locomotive is stationary. (Electrical energy produced 
by the diesel generator is dissipated in the load cell resistors instead 
of the traction motors).
    (p) Locomotive means for the purpose of this regulation, a self-
propelled vehicle designed for and used on railroad tracks in the 
transport or rail cars, including self-propelled rail passenger 
vehicles.
    (q) Locomotive Load Cell Test Stand means the load cell Sec. 
201.1(o) and associated structure, equipment, trackage and locomotive 
being tested.
    (r) Maximum Sound Level means the greatest A-weighted sound level in 
decibels measured during the designated time interval or during the 
event, with either fast meter response Sec. 201.1(l) or slow meter 
response Sec. 201.1(ii) as specified. It is abbreviated as 
Lmax.
    (s) Measurement Period means a continuous period of time during 
which noise of railroad yard operations is assessed, the beginning and 
finishing times of which may be selected after completion of the 
measurements.
    (t) Rail Car means a non-self-propelled vehicle designed for and 
used on railroad tracks.
    (u) Railroad means all the roads in use by any common carrier 
operating a railroad, whether owned or operated under a contract, 
agreement, or lease.
    (v) Receiving Property Measurement Location means a location on 
receiving property that is on or beyond the railroad facility boundary 
and that meets the receiving property measurement location criteria of 
subpart C.

[[Page 73]]

    (w) Receiving Property means any residential or commercial property 
that receives the sound from railroad facility operations, but that is 
not owned or operated by a railroad; except that occupied residences 
located on property owned or controlled by the railroad are included in 
the definition of ``receiving property.'' For purposes of this 
definition railroad crew sleeping quarters located on property owned or 
controlled by the railroad are not considered as residences. If, 
subsequent to the publication date of these regulations, the use of any 
property that is currently not applicable to this regulation changes, 
and it is newly classified as either residential or commercial, it is 
not receiving property until four years have elapsed from the date of 
the actual change in use.
    (x) Residential Property means any property that is used for any of 
the purposes described in the following standard land use codes (ref. 
Standard Land Use Coding Manual. U.S. DOT/FHWA Washington, DC, reprinted 
March 1977): 1, Residential: 651, Medical and other Health Services; 68, 
Educational Services; 691, Religious Activities; and 711, Cultural 
Activities.
    (y) Retarder (Active) means a device or system for decelerating 
rolling rail cars and controlling the degree of deceleration on a car by 
car basis.
    (z) Retarder Sound means a sound which is heard and identified by 
the observer as that of a retarder, and that causes a sound level meter 
indicator at fast meter response Sec. 201.1(l) to register an increase 
of at least ten decibels above the level observed immediately before 
hearing the sound.
    (aa) Sound Level means the level, in decibels, measured by 
instrumentation which satisfies the requirements of American National 
Standard Specification for Sound Level Meters S1.4-1971 Type 1 (or S1A) 
or Type 2 if adjusted as shown in Table 1. This publication is available 
from the American National Standards Institute, Inc., 1430 Broadway, New 
York, New York 10018. For the purpose of these procedures the sound 
level is to be measured using the Aweighting of spectrum and either the 
FAST or SLOW dynamic averaging characteristics, as designated. It is 
abbreviated as LA.
    (bb) Sound Exposure Level means the level in decibels calculated as 
ten times the common logarithm of time integral of squared A-weighted 
sound pressure over a given time period or event divided by the square 
of the standard reference sound pressure of 20 micropascals and a 
reference duration of one second.
    (cc) Sound Pressure Level (in stated frequency band) means the 
level, in decibels, calculated as 20 times the common logarithm of the 
ratio of a sound pressure to the reference sound pressure of 20 
micropascals.
    (dd) Special Purpose Equipment means maintenance-of-way equipment 
which may be located on or operated from rail cars including: Ballast 
cribbing machines, ballast regulators, conditioners and scarifiers, bolt 
machines, brush cutters, compactors, concrete mixers, cranes and 
derricks, earth boring machines, electric welding machines, grinders, 
grouters, pile drivers, rail heaters, rail layers, sandblasters, snow 
plows, spike drivers, sprayers and other types of such maintenance-of-
way equipment.
    (ee) Special Track Work means track other than normal tie and 
ballast bolted or welded rail or containing devices such as retarders or 
switching mechanisms.
    (ff) Statistical Sound Level means the level in decibels that is 
exceeded in a stated percentage (x) of the duration of the measurement 
period. It is abbreviated as Lx.
    (gg) Switcher Locomotive means any locomotive designated as a 
switcher by the builder or reported to the ICC as a switcher by the 
operator-owning-railroad and including, but not limited to, all 
locomotives of the builder/model designations listed in Appendix A to 
this subpart.
    (hh) Warning Device means a sound emitting device used to alert and 
warn people of the presence of railroad equipment.
    (ii) Slow Meter Response means that the slow response of the sound 
level meter shall be used. The slow dynamic response shall comply with 
the meter dynamic characteristics in paragraph 5.4 of the American 
National Standard Specification for Sound Level Meters. ANSI S1.4-1971. 
This publication is

[[Page 74]]

available from the American National Standards Institute Inc., 1430 
Broadway, New York, New York 10018.

[45 FR 1263, Jan. 4, 1980, as amended at 47 FR 14709, Apr. 6, 1982]



     Sec. Appendix A to Subpart A of Part 201--Switcher Locomotives

[The following locomotives are considered to be ``switcher locomotives''
            under the general definition of this regulation]
------------------------------------------------------------------------
                   Type                                Engine
------------------------------------------------------------------------
                          General Electric Co.
------------------------------------------------------------------------
44 ton...................................  8-D17000(2).
70 ton...................................  6-CBFWL-6T.
95 ton...................................  6-CBFWL-6T.
------------------------------------------------------------------------
                      Electromotive Division (GMC)
------------------------------------------------------------------------
SC.......................................  8-201A.
NC.......................................  12-201A.
NC1......................................  12-201A.
NC2......................................  12-201A.
NW.......................................  12-201A.
NW1......................................  12-201A.
NW1A.....................................  12-201A.
NW2......................................  12-567.
NW2......................................  12-567A.
NW3......................................  12-567.
NW4......................................  12-201A.
NW5......................................  12-567B.
SW.......................................  8-201A/6-567.
SW1......................................  6-567A/AC.
SW2......................................  6-567.
SW3......................................  6-567.
SW600....................................  6-567C.
SW7......................................  12-567A.
SW8......................................  8-567B/BC.
SW900....................................  8-567B.
SW9......................................  12-567B/BC/C.
SW1200...................................  12-567C.
SW1000...................................  8-645E.
SW1001...................................  8-645E.
SW1500...................................  12-645E.
MP15.....................................  12-645E.
MP15AC...................................  12-645E.
GMD1.....................................  12-567C.
RS1325...................................  12-567C.
------------------------------------------------------------------------
              Transfer Switcher including ``Cow and Calf''
------------------------------------------------------------------------
T........................................  12-201A(2)
TR.......................................  12-567(2)
TR1......................................  16-567(2)
TR2......................................  12-567A(2)
TR3......................................  12-567(3)
TR4......................................  12-567A(2)
TR5......................................  12-567B(2)
TR6......................................  8-567B(2)
------------------------------------------------------------------------
                                 Baldwin
------------------------------------------------------------------------
VO-660...................................  6-VO.
DS-446...................................  6-606NA.
DS4475...................................  6-750.
S-8......................................  6-606.
VO-1000..................................  8-VO.
DS-4410..................................  8-608NA.
DS-4410..................................  6-606SC.
S-12.....................................  6-606A.
DRS-4410 \1\.............................  6-606SC.
DRS-12 \1\...............................  6-606A.
------------------------------------------------------------------------
                             Fairbanks Morse
------------------------------------------------------------------------
H-10-44..................................  6-OP.
H-12-44..................................  6-OP.
H-12-44TS................................  6-OP.
H-12-46 \1\..............................  6-OP.
------------------------------------------------------------------------
                                  Lima
------------------------------------------------------------------------
750 hp...................................  6-Hamilton.
800 hp...................................  6-Hamilton.
1000 hp..................................  8-Hamilton.
1200 hp..................................  8-Hamilton.
LRS \1\..................................  8-Hamilton.
TL \1\...................................  8-Hamilton (2).
------------------------------------------------------------------------
                              ALCO and MLW
------------------------------------------------------------------------
S1.......................................  6-539NA.
S2.......................................  6-539T.
S3.......................................  6-539NA.
S4.......................................  6-539T.
S5.......................................  6-251.
S6.......................................  6-251A,B.
S7.......................................  6-539.
S10......................................  6-539.
S11......................................  6-539.
S12......................................  6-539T.
S13......................................  6-251C.
RSD-1....................................  6-539.
RSC-13...................................  6-539.
RSC-24...................................  12-244
RS1......................................  6-539T.
RS2 \1\..................................  12-244.
RS3 \1\..................................  12-244.
RS10 \1\.................................  12-244.
RSC-2 \1\................................  12-244.
RS3 \1\..................................  12-244.
RSD-4 \1\................................  12-244.
RSD-5 \1\................................  12-244.
T6.......................................  6-251B.
C-415 \1\................................  8-251F.
M-420TR..................................  12-251.
------------------------------------------------------------------------
\1\ These models may be found assigned to road service as well as
  switcher service, but are considered switcher locomotives for the
  purpose of this regulation.



         Subpart B_Interstate Rail Carrier Operations Standards



Sec. 201.10  Applicability.

    The provisions of this subpart apply to all rail cars and all 
locomotives, except steam locomotives, operated or controlled by 
carriers as defined in subpart A of this part, except that Sec. 201.11 
(a), (b), and (c) do not apply to gas turbine-powered locomotives and to 
any locomotive type which cannot be connected by any standard method to 
a load cell. They apply to the total sound level emitted by rail cars 
and locomotives operated under the conditions specified, including the 
sound produced by refrigeration and air conditioning

[[Page 75]]

units which are an integral element of such equipment. The provisions of 
this subpart apply to all active retarders, all car coupling operations, 
all switcher locomotives, and all load cell test stands. These 
provisions do not apply to the sound emitted by a warning device, such 
as a horn, whistle or bell when operated for the purpose of safety. They 
do not apply to special purpose equipment which may be located on or 
operated from railcars; they do not apply to street, suburban or 
interurban electric railways unless operated as a part of a general 
railroad system of transportation. When land use changes after the 
publication date of this regulation from some other use to residential 
or commercial land use around a specific railyard facility, this 
regulation will become effective four (4) years from the date of that 
land use change.



Sec. 201.11  Standard for locomotive operation under stationary
conditions.

    (a) Commencing December 31, 1976, no carrier subject to this 
regulation shall operate any locomotive to which this regulation is 
applicable, and of which manufacture is completed on or before December 
31, 1979, which produces A-weighted sound levels in excess of 93 dB at 
any throttle setting except idle, when operated singly and when 
connected to a load cell, or in excess of 73 dB at idle when operated 
singly, and when measured in accordance with the criteria specified in 
Subpart C of this part with slow meter response at a point 30 meters 
(100 feet) from the geometric center of the locomotive along a line that 
is both perpendicular to the centerline of the track and originates at 
the locomotive geometric center.
    (b) No carrier subject to this regulation shall operate any 
locomotive to which this regulation is applicable, and of which 
manufacture is completed after December 31, 1979, which produces A-
weighted sound levels in excess of 87 dB at any throttle setting except 
idle, when operated singly and when connected to a load cell, or in 
excess of 70 dB at idle when operated singly, and when measured in 
accordance with the criteria specified in Subpart C of this part with 
slow meter response at a point 30 meters (100 feet) from the geometric 
center of the locomotive along a line that is both perpendicular to the 
centerline of the track and originates at the locomotive geometric 
center.
    (c) Commencing January 15, 1984, no carrier subject to this 
regulation may operate any switcher locomotive to which this regulation 
is applicable, and of which manufacture is completed on or before 
December 31, 1979, which produces A-weighted sound levels in excess of 
87 dB at any throttle setting except idle, when operated singly and when 
connected to a load cell, or in excess of 70 dB at idle, and when 
measured in accordance with the criteria specified in Subpart C of this 
part with slow meter response at a point 30 meters (100 feet) from the 
geometric center of the locomotive along a line that is both 
perpendicular to the centerline of the track and originates at the 
locomotive geometric center. All switcher locomotives that operate in a 
particular railroad facility are deemed to be in compliance with this 
standard if the A-weighted sound level from stationary switcher 
locomotives, singly or in combination with other stationary locomotives, 
does not exceed 65 dB when measured with fast meter response at any 
receiving property measurement location near that particular railyard 
facility and when measured in accordance wtih Subpart C of this 
regulation.

[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, 1982]



Sec. 201.12  Standard for locomotive operation under moving conditions.

    (a) Commencing December 31, 1976, no carrier subject to this 
regulation may operate any locomotive or combination of locomotives to 
which this regulation is applicable, and of which manufacture is 
completed on or before December 31, 1979, which produces A-weighted 
sound levels in excess of 96 dB when moving at any time or under any 
condition of grade, load, acceleration, or deceleration, when measured 
in accordance with the criteria specified in Subpart C of this 
regulation with fast meter response at 30 meters (100 feet) from the 
centerline of any section of track having less than a two (2) degree 
curve (or a radius of curvature greater than 873 meters (2865 feet)).

[[Page 76]]

    (b) No carrier subject to this regulation may operate any locomotive 
or combination of locomotives to which this regulation is applicable, 
and of which manufacture is completed after December 31, 1979, which 
produce A-weighted sound levels in excess of 90 dB when moving at any 
time or under any condition of grade, load, acceleration, or 
deceleration, when measured in accordance with the criteria specified in 
Subpart C of this part with fast meter response at 30 meters (100 feet) 
from the centerline of any section of track having less than a two (2) 
degree curve (or a radius of curvature greater than 873 meters (2,865 
feet)).
    (c) Commencing January 15, 1984, no carrier subject to this 
regulation may operate any switcher locomotive or a combination of 
switcher locomotives to which this regulation is applicable, and of 
which manufacture is completed on or before December 31, 1979 which 
produce A-weighted sound levels in excess of 90 dB when moving at any 
time or under any condition of grade, load, acceleration or 
deceleration, and when measured in accordance with the criteria in 
Subpart C of this part with fast meter response at 30 meters (100 feet) 
from the centerline of any section of track having less than a two (2) 
degree curve (or a radius of curvature greater than 873 meters (2,865 
feet)). All switcher locomotives that operate in a particular railroad 
facility are deemed to be in compliance with this standard if the A-
weighted sound level from stationary switcher locomotives, singly or in 
combination with other stationary locomotives, does not exceed 65 dB 
when measured with fast meter response at any receiving property 
measurement location near that particular railyard facility and when 
measured in accordance with Subpart C of this regulation.

[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, 1982]



Sec. 201.13  Standard for rail car operations.

    Effective December 31, 1976, no carrier subject to this regulation 
shall operate any rail car or combination of rail cars which while in 
motion produce sound levels in excess of (1) 88 dB(A) at rail car speeds 
up to and including 75 km/hr (45 mph); or (2) 93 dB(A) at rail car 
speeds greater than 72 km/hr (45 mph); when measured in accordance with 
the criteria specified in Subpart C of this part with fast meter 
response at 30 meters (100) feet from the centerline of any section of 
track which is free of special track work or bridges or trestles and 
which exhibits less than a two (2) degree curve (or a radius of 
curvature greater than 873 meters (2,865 feet)).

[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, 1982]



Sec. 201.14  Standard for retarders.

    Effective January 15, 1984, no carrier subject to this regulation 
shall operate retarders that exceed an adjusted average maximum A-
weighted sound level of 83 dB at any receiving property measurement 
location, when measured with fast meter response in accordance with 
Subpart C of this part.

[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, 1982]



Sec. 201.15  Standard for car coupling operations.

    Effective January 15, 1984, no carrier subject to this regulation 
shall conduct car coupling operations that exceed an adjusted average 
maximum A-weighted sound level of 92 dB at any receiving property 
measurement location, when measured with fast meter response in 
accordance with Subpart C of this part, except, such coupling will be 
found in compliance with this standard and the carrier will be 
considered in compliance, if the railroad demonstrates that the standard 
is exceeded at the receiving property measurement locations (where the 
standard was previously exceeded) when cars representative of those 
found to exceed the standard are coupled at similar locations at 
coupling speeds of eight miles per hour or less.

[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, 1982]



Sec. 201.16  Standard for locomotive load cell test stands.

    (a) Effective January 15, 1984, no carrier subject to this reguation 
shall operate locomotive load cell test stands that exceed an A-weighted 
sound level

[[Page 77]]

of 78 dB when measured with slow meter response in accordance with 
Subpart C of this part excluding Sec. 201.23 (b) and (c), at a point 30 
meters (100 feet) from the geometric center of the locomotive undergoing 
test, along a line that is both perpendicular to the centerline of the 
track and originates at the locomotive geometric center, and in the 
direction most nearly towards the closest receiving property measurement 
location. All locomotive load cell test stands in a particular railroad 
facility are in compliance with this standard if the A-weighted sound 
level from the load cell does not exceed 65 dB at any receiving property 
measurement location near that particular railyard facility and when 
measured with fast meter response in accordance with Subpart C of this 
regulation.
    (b) If the conditions of any part of Sec. 201.23(a) cannot be met 
at a specific load cell test stand site, then the A-weighted sound level 
from that specific load cell test stand must not exceed 65 dB when 
measured with fast meter response at a receiving property measurement 
location more than 120 meters (400 feet) from the geometric center of 
the locomotive being tested and in accordance with Subpart C of this 
regulation.

[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, 1982]



                     Subpart C_Measurement Criteria



Sec. 201.20  Applicability and purpose.

    The following criteria are applicable to and contain the necessary 
parameters and procedures for the measurement of the noise emission 
levels prescribed in the standards of Subpart B of this part. These 
criteria are specified in order to further clarify and define such 
standards. Equivalent measurement procedures may be used for 
establishing compliance with these regulations. Any equivalent 
measurement procedure, under any circumstance, shall not result in a 
more stringent noise control requirement than those specified in this 
regulation using the measurement procedures in Subpart C.



Sec. 201.21  Quantities measured.

    The quantities to be measured under the test conditions described 
below, are the A-weighted sound levels for ``fast'' or ``slow'' meter 
response as defined in the American National Standard S1.4-1971.



Sec. 201.22  Measurement instrumentation.

    (a) A sound level meter or alternate sound level measurement system 
that meets, as a minimum, all the requirements of American National 
Standard S1.4-1971 \1\ for a Type 1 (or S1A) instrument must be used 
with the ``fast'' or ``slow'' meter response chacteristic as specified 
in Subpart B. To insure Type 1 response, the manufacturer's instructions 
regarding mounting or orienting of the microphone, and positioning of 
the observer must be observed. In the event that a Type 1 (or S1A) 
instrument is not available for determining non-compliance with this 
regulation, the measurements may be made with a Type 2 (or S2A), but 
with the measured levels reduced by the following amount to account for 
possible measurement instrument errors pertaining to specific 
measurements and sources:
---------------------------------------------------------------------------

    \1\ American National Standards are available from the American 
National Standards Institute, Inc., 1430 Broadway, New York, NY 10018.

Table 1--Sound Level Corrections When Using a Type 2 (or S2A) Instrument
------------------------------------------------------------------------
                                                                Decibels
      Measurement section                   Source                 \1\
------------------------------------------------------------------------
201.24........................  Locomotives...................        0
                                Rail cars.....................        0
                                Locomotive load cell test             0
                                 stand.
201.26........................  Retarder......................        4
                                Car coupling..................        2
201.27........................  Locomotive load cell test             0
                                 stand.
                                Stationary locomotive.........        0
------------------------------------------------------------------------
\1\ Amount of correction to be subtracted from measured level (dB).

    (b) A microphone windscreen and an acoustic calibrator of the 
coupler type must be used as recommended by: (1) the manufacturer of the 
sound level meter or (2) the manufacturer of the microphone. The choice 
of both devices must be based on ensuring that Type 1 or 2 performance, 
as appropriate, is maintained for frequencies below 10,000 Hz.

[[Page 78]]



Sec. 201.23  Test site, weather conditions and background noise
criteria for measurement at a 30 meter (100 feet) distance of the 

noise from locomotive and 
          rail car operations and locomotive load cell test stands.

    (a) The standard test site shall be such that the locomotive or 
train radiates sound into a free field over the ground plane. This 
condition may be considered fulfilled if the test site consists of an 
open space free of large, sound reflecting objects, such as barriers, 
hills, signboards, parked vehicles, locomotives or rail cars on adjacent 
tracks, bridges or buildings within the boundaries described by Figure 
1, as well as conforms to the other requirements of this Sec. 201.23.
    (b) Within the complete test site, the top of at least one rail upon 
which the locomotive or train is located shall be visible (line of 
sight) from a position 1.2 meters (4 feet) above the ground at the 
microphone location, except as provided in paragraph (c) of this 
section.
    (c) Ground cover such as vegetation, fenceposts, small trees, 
telephone poles, etc., shall be limited within the area in the test site 
between the vehicle under test and the measuring microphone such that 80 
percent of the top of at least one rail along the entire test section of 
track be visible from a position 1.2 meters (4 feet) above the ground at 
the microphone location; except that no single obstruction shall account 
for more than 5 percent of the total allowable obstruction.
    (d) The ground elevation at the microphone location shall be within 
plus 1.5 meters (5 feet) or minus 3.0 meters (10 feet) of the elevation 
of the top of the rail at the location in-line with the microphone.
    (e) Within the test site, the track shall exhibit less than a 2 
degree curve or a radius of curvature greater than 873 meters (2,865 
feet). This paragraph shall not apply during a stationary test. The 
track shall be tie and ballast, free of special track work and bridges 
or trestles.
    (f) Measurements shall not be made during precipitation.
    (g) The maximum A-weighted fast response sound level observed at the 
test site immediately before and after the test shall be at least 10 
dB(A) below the level measured during the test. For the locomotive and 
rail car pass-by tests this requirement applies before and after the 
train containing the rolling stock to be tested has passed. This 
background sound level measurement shall include the contribution from 
the operation of the load cell, if any, including load cell contribution 
during test.
    (h) Noise measurements may only be made if the measured wind 
velocity is 19.3 km/hr (12 mph) or less. Gust wind measurements of up to 
33.2 km/hr (20 mph) are allowed.



Sec. 201.24  Procedures for measurement at a 30 meter (100 feet) 
distance of the noise from locomotive and rail car operations and

locomotive load cell test 
          stands.

    (a) Microphone positions. (1) The microphone shall be located within 
the test site according to the specifications given in the test 
procedures of paragraphs (b), (c) and (d) of this section, and shall be 
positioned 1.2 meters (4 feet) above the ground. It shall be oriented 
with respect to the source in accordance with the manufacturer's 
recommendations.
    (2) The observer shall not stand between the microphone and the 
source whose sound level is being measured.
    (b) Stationary locomotive and locomotive load cell test stand tests. 
(1) For stationary locomotive and locomotive load cell test stand tests, 
the microphone shall be positioned on a line perpendicular to the track 
at a point 30 meters (100 feet) from the track centerline at the 
longitudinal midpoint of the locomotive.
    (2) The sound level meter shall be observed for thirty seconds after 
the test throttle setting is established to assure operating stability. 
The maximum sound level observed during that time shall be utilized for 
compliance purposes.
    (3) Measurement of stationary locomotive and locomotive load cell 
test stand noise shall be made with all cooling fans operating.
    (c) Rail car pass-by test. (1) For rail car pass-by tests, the 
microphone shall be positioned on a line perpendicular to the track 30 
meters (100 feet) from the track centerline.

[[Page 79]]

    (2) Rail car noise measurements shall be made when the locomotives 
have passed a distance 152.4 meters (500 feet) or 10 rail cars beyond 
the point at the intersection of the track and the line which extends 
perpendicularly from the track to the microphone location, providing any 
other locomotives are also at least 152.4 meters (500 feet) or 10 rail 
car lengths away from the measuring point. The maximum sound level 
observed in this manner which exceeds the noise levels specified in 
Sec. 201.13 shall be utilized for compliance purposes.
    (3) Measurements shall be taken on reasonably well maintained 
tracks.
    (4) Noise levels shall not be recorded if brake squeal is present 
during the test measurement.
    (d) Locomotive pass-by test. (1) For locomotive pass-by tests, the 
microphone shall be positioned on a line perpendicular to the track at a 
point 30 meters (100 feet) from the track centerline.
    (2) The noise level shall be measured as the locomotive approaches 
and passes by the microphone location. The maximum noise level observed 
during this period shall be utilized for compliance purposes.
    (3) Measurements shall be taken on reasonably well maintained 
tracks.

[[Page 80]]

[GRAPHIC] [TIFF OMITTED] TN30SE99.055


[[Page 81]]





Sec. 201.25  Measurement location and weather conditions for measurement
on receiving property of the noise of retarders, car coupling,

locomotive load cell 
          test stands, and stationary locomotives.

    (a) Measurements must be conducted only at receiving property 
measurement locations.
    (b) Measurement locations on receiving property must be selected 
such that no substantially vertical plane surface, other than a 
residential or commercial unit wall or facility boundary noise barrier, 
that exceeds 1.2 meters (4 feet) in height is located within 10 meters 
(33.3 feet) of the microphone and that no exterior wall of a residential 
or commercial structure is located within 2.0 meters (6.6 feet) of the 
microphone. If the residential structure is a farm home, measurements 
must be made 2.0 to 10.0 meters (6.6 to 33.3 feet) from any exterior 
wall.
    (c) No measurement may be made when the average wind velocity during 
the period of measurement exceeds 19.3 km/hr (12 mph) or when the 
maximum wind gust velocity exceeds 32.2 km/hr (20 mph).
    (d) No measurement may be taken when precipitation, e.g., rain, 
snow, sleet, or hail, is occurring.



Sec. 201.26  Procedures for the measurement on receiving property of 
retarder and car coupling noise.

    (a) Retarders--(1) Microphone. The microphone must be located on the 
receiving property and positioned at a height between 1.2 and 1.5 meters 
(4 to 5 feet) above the ground. The microphone must be positioned with 
respect to the equipment in accordance with the manufacturers' 
recommendations for Type 1 or 2 performance as appropriate. No person 
may stand between the microphone and the equipment being measured or be 
otherwise positioned relative to the microphone at variance with the 
manufacturers' recommendations for Type 1 or 2 performance as 
appropriate.
    (2) Data. The maximum A-weighted sound levels (FAST) for every 
retarder sound observed during the measurement period must be read from 
the indicator and recorded. At least 30 consecutive retarder sounds must 
be measured. The measurement period must be at least 60 minutes and not 
more than 240 minutes.
    (3) Adjusted average maximum A-weighted sound level. The energy 
average level for the measured retarder sounds must be calculated to 
determine the value of the average maximum A-weighted sound level 
(Lave max). This value is then adjusted by adding the 
adjustment (C) from Table 2 appropriate to the number of measurements 
divided by the duration of the measurement period (n/T), to obtain the 
adjusted average maximum A-weighted sound level 
(Ladj ave max) for retarders.
    (b) Car coupling impact--(1) Microphone. The microphone must be 
located on the receiving property and at a distance of at least 30 
meters (100 feet) from the centerline of the nearest track on which car 
coupling occurs and its sound is measured (that is, either the 
microphone is located 30 meters (100 feet) from the nearest track on 
which couplings occur, or all sounds resulting from car coupling impacts 
that occur on tracks with centerlines located less than 30 meters (100 
feet) from the microphone are disregarded). The microphone shall be 
positioned at a height between 1.2 and 1.5 meters (4 and 5 feet) above 
the ground, and it must be positioned with respect to the equipment in 
accordance with the manufacturers' recommendations for Type 1 or 2 
performance as appropriate. No person may stand between the microphone 
and the equipment being measured or be otherwise positioned relative to 
the microphone at variance with the manufacturers' recommendations for 
Type 1 or 2 performance as appropriate.
    (2) Data. The maximum A-weighted sound levels (FAST) for every car 
coupling impact sound observed during the measurement period must be 
read from the indicator and recorded. At least 30 consecutive car 
coupling impact sounds must be measured. The measurement period must be 
at least 60 minutes and not more than 240 minutes, and must be reported.

[[Page 82]]



Table 2--Adjustment to Lave max To Obtain Ladj ave max for Retarders and
                        Car Coupling Impacts \1\
 [n/T=number of measurements/measurement duration (min) C=Adjustment in
                                   dB]
0.111 to 0.141..................................................      -9
0.142 to 0.178..................................................      -8
0.179 to 0.224..................................................      -7
0.225 to 0.282..................................................      -6
0.283 to 0.355..................................................      -5
0.356 to 0.447..................................................      -4
0.448 to 0.562..................................................      -3
0.563 to 0.708..................................................      -2
0.709 to 0.891..................................................      -1
0.892 to 1.122..................................................       0
1.123 to 1.413..................................................      +1
1.414 to 1.778..................................................      +2
1.779 to 2.239..................................................      +3
2.240 to 2.818..................................................      +4
2.819 to 3.548..................................................      +5
3.549 to 4.467..................................................      +6
 
\1\ Ladj ave max=Lave max +C in dB.
Values in Table 2 were calculated from [C=10 log n/T] with intervals
  selected to round off values to the nearest whole decibel. The table
  may be extended or interpolated to finer interval gradations by using
  this defining equation.

    (3) Adjusted average maximum A-weighted sound level. The energy 
average level for the measured car coupling sounds is calculated to 
determine the average maximum sound level (Lave max). It is 
then adjusted by adding the adjustment (C) from Table 2 appropriate to 
the number of measurements divided by the duration of the measurement 
period (n/T), to obtain the adjusted average maximum A-weighted sound 
level (Ladj ave max) for car coupling impacts.



Sec. 201.27  Procedures for: (1) Determining applicability of the 
locomotive load cell test stand standard and switcher locomotive 

standard by noise 
          measurement on a receiving property; (2) measurement of 
          locomotive load cell test stands more than 120 meters (400 
          feet) on a receiving property.

    (a) Microphone. The microphone must be located at a receiving 
property measurement location and must be positioned at a height between 
1.2 and 1.5 meters (4 and 5 feet) above the ground. Its position with 
respect to the equipment must be in accordance with the manufacturers' 
recommendations for Type 1 or 2 performance as appropriate. No person 
may stand between the microphone and the equipment being measured or be 
otherwise positioned relative to the microphone at variance to the 
manufacturers' recommendations for Type 1 or Type 2 performance as 
appropriate.
    (b) Data. (1) When there is evidence that at least one of these two 
types of nearly steady state sound sources is affecting the noise 
environment, the following measurements must be made. The purpose of 
these measurements is to determine the A-weighted L90 
statistical sound level, which is to be used as described in 
subparagraph (c) below to determine the applicability of the source 
standards. Before this determination can be made, the measured 
L90 is to be ``validated'' by comparing the measured 
L10 and L99 statistical sound levels. If the 
difference between these levels is sufficiently small (4 dB or less), 
the source(s) being measured is considered to be a nearly steady state 
source.
    (2) Data shall be collected by measuring the instantaneous A-
weighted sound level (FAST) at a rate of at least once each 10 seconds 
for a measurement period of at least 15 minutes and until 100 
measurements are obtained. The data may be taken manually by direct 
reading of the indicator at 10 second intervals (1 
second), or by attaching a statistical analyzer, graphic level recorder, 
or other equivalent device to the sound level meter for a more 
continuous recording of the instantaneous sound level.
    (3) The data shall be analyzed to determine the levels exceeded 99%, 
90%, and 10% of the time, i.e., L99, L90, and 
L10, respectively. The value of L90 is considered 
a valid measure of the A-weighted sound level for the standards in Sec. 
201.16 only if the difference between L10 and L99 
has a value of 4 dB or less. If a measured value of L90 is 
not valid for this purpose, measurements may be taken over a longer 
period to attempt to improve the certainty of the measurement and to 
validate L90. If L90 is valid and is less than the 
level in applicable standards for these source types, the sources are in 
compliance. If the measured value of L90 is valid and exceeds 
the initial 65 dB requirement for any of the source types that appear to 
be affecting the noise environments, the evaluation according to the 
following paragraph (c) is required.
    (c) Determination of applicability of the standard when 
L90 is validated and is in excess of one or more of the 
source standards. The following procedures must be

[[Page 83]]

used to determine the compliance of the various source types when 
L90 is validated and in excess of one or more of the 
applicable standards.
    (1) The principal direction of the nearly steady-state sound at the 
measurement location must be determined, if possible, by listening to 
the sound and localizing its apparent source(s). If the observer is 
clearly convinced by this localization process that the sound emanates 
only from one or both of these two sources, then:
    (i) If only stationary locomotive(s), including at least one 
switcher locomotive, are present, the value of L90 is the 
value of the A-weighted sound level to be used in determining if the 65 
dB requirement is exceeded and compliance with the standards in 
Sec. Sec. 201.11(c) and 201.12(c) is necessary.
    (ii) If only a locomotive load cell test stand and the locomotive 
being tested are present and operating, the value of L90 is 
the value of the A-weighted sound level to be used in determining 
applicability of the standard in Sec. 201.16.
    (iii) If a locomotive load cell test stand(s) and the locomotive 
being tested are present and operating with stationary locomotive(s), 
including at least one switcher locomotive, the value L90 
minus 3 dB is the value of the A-weighted sound level to be used in 
determining applicability of the standards in Sec. Sec. 201.11(c), 
201.12(c) and 201.16.
    (iv) If a locomotive load cell test stand(s) and the locomotive 
being tested are present and operating, and a stationary locomotive(s) 
is present, and if the nearly steady-state sound level is observed to 
change by 10 dB, coincident with evidence of a change in operation of 
the locomotive load cell test stand but without apparent change in the 
location of stationary locomotives, another measurement of 
L90 must be made in accordance with paragraph (b) of this 
section. If this additional measure of L90 is validated and 
differs from the initial measure of L90 by an absolute value 
of 10 dB or more, then the higher value of L90 is the value 
of the A-weighted sound level to be used in determining applicability of 
the standard in Sec. 201.16.
    (2) In order to accomplish the comparison demonstration of paragraph 
(c)(3) of this section, when one or more source types is found not to be 
in compliance with the applicable standard(s), documentation of noise 
source information shall be necessary. This will include, but not be 
limited to, the approximate location of all sources of each source type 
present and the microphone position on a diagram of the particular 
railroad facility, and the distances between the microphone location and 
each of the sources must be estimated and reported. Additionally, if 
other rail or non-rail noise sources are detected, they must be 
identified and similarly reported.
    (3) If it can be demonstrated that the validated L90 is 
less than 5 dB greater than any L90 measured at the same 
receiving property location when the source types that were operating 
during the initial measurement(s) are either turned off or moved, such 
that they can no longer be detected, the initial value(s) of 
L90 must not be used for determining applicability to the 
standards. This demonstration must be made at a time of day comparable 
to that of the initial measurements and when all other conditions are 
acoustically similar to those reported in paragraph (c)(2) of this 
section.

[45 FR 1263, Jan. 4, 1980; 47 FR 14709, Apr. 6, 1982]



Sec. 201.28  Testing by railroad to determine probable compliance 
with the standard.

    (a) To determine whether it is probably complying with the 
regulation, and therefore whether it should institute noise abatement, a 
railroad may take measurements on its own property at locations that:
    (1) Are between the source and receiving property
    (2) Derive no greater benefit from shielding and other noise 
reduction features that does the receiving property; and
    (3) Otherwise meet the requirements of Sec. 201.25.
    (b) Measurements made for this purpose should be in accordance with 
the appropriate procedures in Sec. 201.26 or Sec. 201.27. If the 
resulting level is less than the level stated in the standard, then 
there is probably compliance with the standard.

[[Page 84]]

    (c) This procedure is set forth to assist the railroad in devising 
its compliance plan, not as a substantive requirement of the regulation.



PART 202_MOTOR CARRIERS ENGAGED IN INTERSTATE COMMERCE--
Table of Contents



                      Subpart A_General Provisions

Sec.
202.10 Definitions.
202.11 Effective date.
202.12 Applicability.

         Subpart B_Interstate Motor Carrier Operations Standards

202.20 Standards for highway operations.
202.21 Standard for operation under stationary test.
202.22 Visual exhaust system inspection.
202.23 Visual tire inspection.

    Authority: Sec. 18, 36 Stat. 1249, 42 U.S.C. 4917(a).



                      Subpart A_General Provisions



Sec. 202.10  Definitions.

    As used in this part, all terms not defined herein shall have the 
meaning given them in the Act:
    (a) Act means the Noise Control Act of 1972 (Pub. L. 92-574, 86 
Stat. 1234).
    (b) Common carrier by motor vehicle means any person who holds 
himself out to the general public to engage in the transportation by 
motor vehicle in interstate or foreign commerce of passengers or 
property or any class or classes thereof for compensation, whether over 
regular or irregular routes.
    (c) Contract carrier by motor vehicle means any person who engages 
in transportation by motor vehicle of passengers or property in 
interstate or foreign commerce for compensation (other than 
transportation referred to in paragraph (b) of this section) under 
continuing contracts with one person or a limited number of persons 
either (1) for the furnishing of transportation services through the 
assignment of motor vehicles for a continuing period of time to the 
exclusive use of each person served or (2) for the furnishing of 
transportation services designed to meet the distinct need of each 
individual customer.
    (d) Cutout or by-pass or similar devices means devices which vary 
the exhaust system gas flow so as to discharge the exhaust gas and 
acoustic energy to the atmosphere without passing through the entire 
length of the exhaust system, including all exhaust system sound 
attenuation components.
    (e) dB(A) means the standard abbreviation for A-weighted sound level 
in decibels.
    (f) Exhaust system means the system comprised of a combination of 
components which provides for enclosed flow of exhaust gas from engine 
parts to the atmosphere.
    (g) Fast meter response means that the fast dynamic response of the 
sound level meter shall be used. The fast dynamic response shall comply 
with the meter dynamic characteristics in paragraph 5.3 of the American 
National Standard Specification for Sound Level Meters, ANSI S1. 4-1971. 
This publication is available from the American National Standards 
Institute, Inc., 1420 Broadway, New York, New York 10018.
    (h) Gross Vehicle Weight Rating (GVWR) means the value specified by 
the manufacturer as the loaded weight of a single vehicle.
    (i) Gross Combination Weight Rating (GCWR) means the value specified 
by the manufacturer as the loaded weight of a combination vehicle.
    (j) Highway means the streets, roads, and public ways in any State.
    (k) Interstate commerce means the commerce between any place in a 
State and any place in another State or between places in the same State 
through another State, whether such commerce moves wholly by motor 
vehicle or partly by motor vehicle and partly by rail, express, water or 
air. This definition of ``interstate commerce'' for purposes of these 
regulations is the same as the definition of ``interstate commerce'' in 
section 203(a) of the Interstate Commerce Act. [49 U.S.C. 303(a)]
    (l) Motor carrier means a common carrier by motor vehicle, a 
contract carrier by motor vehicle, or a private carrier of property by 
motor vehicle as those terms are defined by paragraphs (14), (15), and 
(17) of section 203(a) of

[[Page 85]]

the Interstate Commerce Act [49 U.S.C. 303(a)].
    (m) Motor vehicle means any vehicle, machine, tractor, trailer, or 
semitrailer propelled or drawn by mechanical power and used upon the 
highways in the transportation of passengers or property, or any 
combination thereof, but does not include any vehicle, locomotive, or 
car operated exclusively on a rail or rails.
    (n) Muffler means a device for abating the sound of escaping gases 
of an internal combustion engine.
    (o) Open site means an area that is essentially free of large sound-
reflecting objects, such as barriers, walls, board fences, signboards, 
parked vehicles, bridges, or buildings.
    (p) Private carrier of property by motor vehicle means any person 
not included in terms ``common carrier by motor vehicle'' or ``contract 
carrier by motor vehicle'', who or which transports in interstate or 
foreign commerce by motor vehicle property of which such person is the 
owner, lessee, or bailee, when such transportation is for sale, lease, 
rent or bailment, or in furtherance of any commercial enterprise.
    (q) Sound level means the quantity in decibles measured by a sound 
level meter satisfying the requirements of American National Standards 
Specification for Sound Level Meters S1.4-1971. This publication is 
available from the American National Standards Institute, Inc., 1430 
Broadway, New York, New York 10018. Sound level is the frequency-
weighted sound pressure level obtained with the standardized dynamic 
characteristic ``fast'' or ``slow'' and weighting A, B, or C; unless 
indicated otherwise, the A-weighting is understood.

[39 FR 38215, Oct. 29, 1974]



Sec. 202.11  Effective date.

    The provisions of Subpart B shall become effective October 15, 1975, 
except that the provisions of Sec. 202.20(b) and Sec. 202.21(b) of 
Subpart B shall apply to motor vehicles manufactured during or after the 
1986 model year.

[51 FR 852, Jan. 8, 1986]



Sec. 202.12  Applicability.

    (a) The provisions of Subpart B apply to all motor carriers engaged 
in interstate commerce.
    (b) The provisions of Subpart B apply only to those motor vehicles 
of such motor carriers which have a gross vehicle weight rating or gross 
combination weight rating in excess of 10,000 pounds, and only when such 
motor vehicles are operating under the conditions specified in Subpart 
B.
    (c) Except as provided in paragraphs (d) and (e) of this section, 
the provisions of Subpart B apply to the total sound produced by such 
motor vehicles when operating under such conditions, including the sound 
produced by auxiliary equipment mounted on such motor vehicles.
    (d) The provisions of Subpart B do not apply to auxiliary equipment 
which is normally operated only when the transporting vehicle is 
stationary or is moving at a speed of 5 miles per hour or less. Examples 
of such equipment include, but are not limited to, cranes, asphalt 
spreaders, ditch diggers, liquid or slurry pumps, air compressors, 
welders, and trash compactors.
    (e) The provisions of Subpart B do not apply to warning devices, 
such as horns and sirens; or to emergency equipment and vehicles such as 
fire engines, ambulances, police vans, and rescue vans, when responding 
to emergency calls; or to snow plows when in operation.
    (f) The provisions of Sec. 202.20(a) and Sec. 202.21(a) of Subpart 
B apply only to applicable motor vehicles manufactured prior to the 1986 
model year.
    (g) The provisions of Sec. 202.20(b) and Sec. 202.21(b) apply to 
all applicable motor vehicles manufactured during or after the 1986 
model year.

[39 FR 38215, Oct. 29, 1974, as amended at 51 FR 852, Jan. 8, 1986]



         Subpart B_Interstate Motor Carrier Operations Standards



Sec. 202.20  Standards for highway operations.

    (a) No motor carrier subject to these regulations shall operate any 
motor vehicle of a type to which this regulation

[[Page 86]]

is applicable which at any time or under any condition of highway grade, 
load, acceleration or deceleration generates a sound level in excess of 
86dB(A) measured on an open site with fast meter response at 50 feet 
from the centerline of lane of travel on highways with speed limits of 
35 MPH or less; or 90 dB(A) measured on an open site with fast meter 
response at 50 feet from the centerline of lane of travel on highways 
with speed limits of more than 35 MPH.
    (b) No motor carrier subject to these regulations shall operate any 
motor vehicle of a type to which this regulation is applicable which at 
any time or under any condition of highway grade, load, acceleration or 
deceleration generates a sound level in excess of 83 dB(A) measured on 
an open site with fast meter response at 50 feet from the centerline of 
lane of travel on highways with speed limits of 35 MPH or less; or 87 
dB(A) measured on an open site with fast meter response at 50 feet from 
the centerline of lane of travel on highways with speed limits of more 
than 35 MPH.

[39 FR 38215, Oct. 29, 1974, as amended at 51 FR 852, Jan. 8, 1986]



Sec. 202.21  Standard for operation under stationary test.

    (a) No motor carrier subject to these regulations shall operate any 
motor vehicle of a type to which this regulation is applicable which 
generates a sound level in excess of 88 dB(A) measured on an open site 
with fast meter response at 50 feet from the longitudinal centerline of 
the vehicle, when its engine is accelerated from idle with wide open 
throttle to governed speed with the vehicle stationary, transmission in 
neutral, and clutch engaged. This section shall not apply to any vehicle 
which is not equipped with an engine speed governor.
    (b) No motor carrier subject to these regulations shall operate any 
motor vehicle of a type to which this regulation is applicable which 
generates a sound level in excess of 85 dB(A) measured on an open site 
with fast meter response at 50 feet from the longitudinal centerline of 
the vehicle when its engine is accelerated from idle with wide open 
throttle to governed speed with the vehicle stationary, transmission in 
neutral, and clutch engaged. This paragraph shall not apply to any 
vehicle which is not equipped with an engine speed governor.

[39 FR 38215, Oct. 29, 1974, as amended at 51 FR 852, Jan. 8, 1986]



Sec. 202.22  Visual exhaust system inspection.

    No motor carrier subject to these regulations shall operate any 
motor vehicle of a type to which this regulation is applicable unless 
the exhaust system of such vehicle is (a) free from defects which affect 
sound reduction; (b) equipped with a muffler or other noise dissipative 
device; and (c) not equipped with any cut-out, bypass, or similar 
device.



Sec. 202.23  Visual tire inspection.

    No motor carrier subject to these regulations shall at any time 
operate any motor vehicle of a type to which this regulation is 
applicable on a tire or tires having a tread pattern which as originally 
manufactured, or as newly retreaded, is composed primarily or cavities 
in the tread (excluding sipes and local chunking) which are not vented 
by grooves to the tire shoulder or circumferentially to each other 
around the tire. This Sec. 202.23 shall not apply to any motor vehicle 
which is demonstrated by the motor carrier which operates it to be in 
compliance with the noise emission standard specified for operations on 
highways with speed limits of more than 35 MPH in Sec. 202.20 of this 
Subpart B, if the demonstration is conducted at the highway speed limit 
in effect at the inspection location, or, if speed is unlimited, the 
demonstration is conducted at a speed of 65 MPH.

[39 FR 38215, Oct. 29, 1974]



PART 203_LOW-NOISE-EMISSION PRODUCTS--Table of Contents



Sec.
203.1 Definitions.
203.2 Application for certification.
203.3 Test procedures.
203.4 Low-noise-emission product determination.
203.5 Suitable substitute decision.

[[Page 87]]

203.6 Contracts for low-noise-emission products.
203.7 Post-certification testing.
203.8 Recertification.

    Authority: Sec. 15, Noise Control Act, 1972, Pub. L. 92-574, 86 
Stat. 1234.

    Source: 39 FR 6670, Feb. 21, 1974, unless otherwise noted.



Sec. 203.1  Definitions.

    (a) As used in this part, any term not defined herein shall have the 
meaning given it in the Noise Control Act of 1972 (Pub. L. 92-574).
    (1) Act means the Noise Control Act of 1972 (Pub. L. 92-574).
    (2) Federal Government includes the legislative, executive, and 
judicial branches of the Government of the United States, and the 
government of the District of Columbia.
    (3) Administrator means the Administrator of the Environmental 
Protection Agency.
    (4) Product means any manufactured article or goods or component 
thereof; except that such term does not include--
    (i) Any aircraft, aircraft engine, propellor or appliance, as such 
terms are defined in section 101 of the Federal Aviation Act of 1958; or
    (ii)(a) Any military weapons or equipment which are designed for 
combat use; (b) any rockets or equipment which are designed for 
research, experimental or developmental work to be performed by the 
National Aeronautics and Space Administration; or (c) to the extent 
provided by regulations of the Administrator, any other machinery or 
equipment designed for use in experimental work done by or for the 
Federal Government.
    (5) Low-Noise-Emission Product Determination means the 
Administrator's determination whether or not a product, for which a 
properly filed application has been received, meets the low-noise-
emission product criterion.
    (6) Suitable Substitute Decision means the Administrator's decision 
whether a product which the Administrator has determined to be a low-
noise-emission product is a suitable substitute for a product or 
products presently being purchased by the Federal Government.



Sec. 203.2  Application for certification.

    (a) Any person desiring certification of a class or model of product 
under section 15 of the act shall submit to the Administrator an 
application for certification. The application shall be completed upon 
such forms as the Administrator may deem appropriate and shall contain:
    (1) A description of the product, including its power source, if 
any;
    (2) Information pertaining to the test facility for the product 
establishing that the test facility meets all requirements which EPA may 
prescribe;
    (3) All noise emission data from the test of the product;
    (4) Data required by the Administrator relative, but not limited to, 
the following characteristics;
    (i) Safety;
    (ii) Performance Characteristics;
    (iii) Reliability of product and reliability of low-noise-emission 
features;
    (iv) Maintenance;
    (v) Operating Costs;
    (vi) Conformance with Federal Agency Purchase Specifications; and
    (5) Such other information as the Administrator may request.
    (b) Specific data requirements relative to paragraph (a)(4) of this 
section will be published separately from the low-noise-emission 
criterion for that product or class of products.
    (c) The Administrator will, immediately upon receipt of the 
application for certification, publish in the Federal Register a notice 
of the receipt of the application. The notice will request written 
comments and documents from interested parties in support of, or in 
opposition to, certification of the class or model of product under 
consideration.



Sec. 203.3  Test procedures.

    (a) The applicant shall test or cause his product to be tested in 
accordance with procedures contained in the regulations issued pursuant 
to section 6 of the act unless otherwise specified.
    (b) The Administrator may conduct whatever investigation is 
necessary, including actual inspection of the product at a place 
designated by him.

[[Page 88]]



Sec. 203.4  Low-noise-emission product determination.

    (a) The Administrator will, within ninety (90) days after receipt of 
a properly filed application for certification, determine whether such 
product is a low-noise-emission product. In doing so, he will determine 
if the product:
    (1) Is one for which a noise source emission standard has been 
promulgated under section 6 of the act;
    (2) Emits levels of noise in amounts significantly below the levels 
specified in noise emission standard under regulations under section 6 
of the act applicable to that product or class of products; and
    (3) Is labeled in accordance with regulations issued pursuant to 
section 8 of the act.
    (b) The Administrator will, upon making the determination whether a 
product is a low-noise-emission product, publish in the Federal Register 
notice of his determination, and the reasons therefor.
    (c) The notice of determination that a product is a low-noise-
emission product shall be revocable whenever a change in the low-noise-
emission product criterion for what product occurs between determination 
and decision. Notice of any revocation will be published in the Federal 
Register, together with a statement of the reasons therefor.
    (d) The notice of determination that a product is a low-noise-
emission product shall expire upon publication in the Federal Register 
of the Administrator's notice of a decision that a product will not be 
certified.



Sec. 203.5  Suitable substitute decision.

    (a) If the Administrator determines that a product is a low-noise-
emission product, then within one hundred and eighty (180) days of such 
determination, in consultation with the appropriate Federal agencies, 
the Administrator will decide whether such product is a suitable 
substitute for any class or model or product being purchased by the 
Federal Government for use by its agencies. Such decision will be based 
upon the data obtained under Sec. 203.2, the Administrator's evaluation 
of the data, comments of interested parties, and, as the Administrator 
deems appropriate, an actual inspection or test of the product at such 
places and times as the Administrator may designate.
    (b) In order to compare the data for any class or model of product 
with any class or model of product presently being purchased by the 
Federal Government for which the applicant seeks to have its product 
substituted, the Administrator will enter into appropriate agreements 
with other Government agencies to gather the necessary data regarding 
such class or model.
    (c) Immediately upon making the decision as to whether a product 
determined to be a low-noise-emission product is a suitable substitute 
for any product or class of products being purchased by the Federal 
Government for its use, the Administrator shall publish in the Federal 
Register notice of such decision and the reasons therefor.
    (d) If the Administrator decides that the product is a suitable 
substitute for products being purchased by the Federal Government, he 
will issue a certificate that the product is a suitable substitute for a 
product or class of products presently being purchased by the Federal 
Government and will specify with particularity the product or class of 
products for which the certified product is a suitable substitute.
    (e) Any certification made under this section shall be effective for 
a period of one year from date of issuance.



Sec. 203.6  Contracts for low-noise-emission products.

    (a) Data relied upon by the Administrator in determining that a 
product is a certified low-noise-emission product will be incorporated 
by reference in any contract for the procurement of such product.
    (b) A determination of price to the Government of any certified low-
noise-emission product will be made by the Administrator of General 
Services in coordination with the appropriate Federal agencies in 
accordance with such procedures as he may prescribe and with subsection 
c(1) of section 15 of the Act.



Sec. 203.7  Post-certification testing.

    The Administrator will, from time to time, as he deems appropriate, 
test the emissions of noise from certified low-

[[Page 89]]

noise-emission products purchased by the Federal Government. If at any 
time he finds that the noise emission levels exceed the levels on which 
certification was based, the Administrator shall give the suppliers of 
such product written notice of this finding, publish such findings in 
the Federal Register and give the supplier an opportunity to make 
necessary repairs, adjustments or replacements. If no repairs, 
adjustments or replacements are made within a period to be set by the 
Administrator, he may order the supplier to show cause why the product 
involved should be eligible for recertification.



Sec. 203.8  Recertification.

    (a) A product for which a certificate has been issued may be 
recertified for the following year upon reapplication to the 
Administrator for this purpose upon such forms as the Administrator may 
deem appropriate.
    (b) If the applicant supplies information establishing that:
    (1) The data previously submitted continues to describe his product 
for purpose of certification;
    (2) The low-noise-emission product criterion and ``suitable 
substitute'' criteria are to be the same during the period 
recertification is desired; and
    (3) No notice has been issued under Sec. 203.7, then 
recertification will be made within 30 days after receipt of an 
appropriate recertification application by the Administrator.



PART 204_NOISE EMISSION STANDARDS FOR CONSTRUCTION EQUIPMENT--
Table of Contents



                      Subpart A_General Provisions

Sec.
204.1 General applicability.
204.2 Definitions.
204.3 Number and gender.
204.4 Inspection and monitoring.
204.5 Exemptions.
204.5-1 Testing exemption.
204.5-2 National security exemptions.
204.5-3 Export exemptions.

                   Subpart B_Portable Air Compressors

204.50 Applicability.
204.51 Definitions.
204.52 Portable air compressor noise emission standard.
204.54 Test procedures.
204.55 Requirements.
204.55-1 General standards.
204.55-2 Requirements.
204.55-3 Configuration identification.
204.55-4 Labeling.
204.56 Testing by the Administrator.
204.57 Selective enforcement auditing.
204.57-1 Test request.
204.57-2 Test compressor sample selection.
204.57-3 Test compressor preparation.
204.57-4 Testing.
204.57-5 Reporting of test results.
204.57-6 Acceptance and rejection of batches.
204.57-7 Acceptance and rejection of batch sequence.
204.57-8 Continued testing.
204.57-9 Prohibition of distribution in commerce; manufacturer's remedy.
204.58 In-use requirements.
204.58-1 Warranty.
204.58-2 Tampering.
204.58-3 Instructions for maintenance, use, and repair.
204.59 Recall of non-complying compressors.

Appendix I to Part 204

    Authority: (42 U.S.C. 4905), 86 Stat. 1237.

    Source: 41 FR 2172, Jan. 14, 1976, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 204.1  General applicability.

    The provisions of this subpart are applicable to all products for 
which regulations have been published under this part and which are 
manufactured after the effective date of such regulations.



Sec. 204.2  Definitions.

    (a) As used in this subpart, all terms not defined herein shall have 
the meaning given them in the Act.
    (1) Act means the Noise Control Act of 1972 (Pub. L. 92-574, 86 
Stat. 1234).
    (2) Administrator means the Administrator of the Environmental 
Protection Agency or his authorized representative.
    (3) Agency means the United States Environmental Protection Agency.
    (4) Export exemption means an exemption from the prohibitions of 
section 10 (a) (1), (2), (3), and (4) of the Act, granted by statute 
under section 10(b)(2) of the Act for the purpose of exporting regulated 
products.
    (5) National security exemption means an exemption from the 
prohibitions of section 10(a) (1), (2), (3), and (5) of the

[[Page 90]]

Act, which may be granted under section 10(b)(1) of the Act for the 
purpose of national security.
    (6) [Reserved]
    (7) Testing exemption means an exemption from the prohibitions of 
section 10(a) (1), (2), (3), and (5) of the Act, which may be granted 
under section 10(b)(1) of the Act for the purpose of research, 
investigations, studies, demonstrations, or training, but not including 
national security where lease or sale of the exempted product is 
involved.
    (8) Warranty means the warranty required by section 6(c)(1) of the 
Act.
    (9) Tampering means those acts prohibited by section 10(a)(2) of the 
Act.
    (10) Maintenance instructions means those instructions for 
maintenance, use, and repair, which the Administrator is authorized to 
require pursuant to section 6(c)(1) of the Act.
    (11) Type I Sound Level Meter means a sound level meter which meets 
the Type I requirements of American National Standard Specification 
S1.4-1971 for sound level meters. This publication is available from the 
American National Standards Institute, Inc., 1430 Broadway, New York, 
New York 10018.
    (12) dBA is the standard abbreviation for A-weighted sound level in 
decibels.
    (13) Reasonable assistance means providing timely and unobstructed 
access to test products or products and records required by this part 
and opportunity for copying such records or testing such test products.
    (14) Slow meter response means the meter ballistics of meter dynamic 
characteristics as specified by American National Standard S1.4-1971 or 
subsequent approved revisions.
    (15) Sound level means the weighted sound pressure level measured by 
the use of a metering characteristic and weighing A, B, or C as 
specified in American National Standard Specification for Sound Level 
Meters S1.4-1971 or subsequent approved revision. The weighting employed 
must be specified, otherwise A-weighting is understood.
    (16) Sound pressure level means, in decibels, 20 times the logarithm 
to the base ten of the ratio of a sound pressure to the reference sound 
pressure of 20 micropascals (20 micronewtons per square meter). In the 
absence of any modifier, the level is understood to be that of a root-
mean-square pressure.
    (17) Product means any construction equipment for which regulations 
have been promulgated under this part and includes ``test product.''
    (18) Test product means any product that is required to be tested 
pursuant to this part.

[41 FR 2172, Jan. 14, 1976, as amended at 47 FR 57711, Dec. 28, 1982]



Sec. 204.3  Number and gender.

    As used in this part, words in the singular shall be deemed to 
import the plural, and words in the masculine gender shall be deemed to 
import the feminine and vice versa, as the case may require.



Sec. 204.4  Inspection and monitoring.

    (a) Any inspection or monitoring activities conducted under this 
section shall be for the purpose of determining (1) whether test 
products are being selected and prepared for testing in accordance with 
the provisions of these regulations, (2) whether test product testing is 
being conducted in accordance with these regulations, and (3) whether 
products being produced for distribution into commerce comply with these 
regulations.
    (b) The Director, Noise Enforcement Division, may request that a 
manufacturer subject to this part admit an EPA Enforcement Officer 
during operating hours to any of the following:
    (1) Any facility or site where any product to be distributed into 
commerce is manufactured, assembled, or stored;
    (2) Any facility or site where any tests conducted pursuant to this 
part or any procedures or activities connected with such tests are or 
were performed; and
    (3) Any facility or site where any test product is present.
    (c)(1) An EPA Enforcement Officer, once admitted to a facility or 
site, will not be authorized to do more than:
    (i) To inspect and monitor test product manufacture and assembly, 
selection, storage, preconditioning, noise emission testing, and 
maintenance, and to verify correlation or calibration of test equipment;

[[Page 91]]

    (ii) To inspect products prior to their distribution in commerce;
    (iii) [Reserved]
    (iv) To inspect and photograph any part or aspect of any such 
product and any component used in the assembly thereof that are 
reasonably related to the purpose of his entry;
    (v) To obtain from those in charge of the facility or site such 
reasonable assistance as he may request to enable him to carry out any 
proper function listed in this section.
    (2) [Reserved]
    (3) The provisions of this section apply whether the facility or 
site is owned or controlled by the manufacturer or by one who acts for 
the manufacturer.
    (d) For purposes of this section:
    (1) An ``EPA Enforcement Officer'' is an employee of the EPA Office 
of Enforcement who displays upon arrival at a facility or site the 
credentials identifying him as such an employee and a letter signed by 
the Director, Noise Enforcement Division designating him to make the 
inspection.
    (2) Where test product storage areas or facilities are concerned, 
``operating hours'' shall mean all times during which personnel other 
than custodial personnel are at work in the vicinity of the area or 
facility and have access to it.
    (3) Where facilities or areas other than those covered by paragraph 
(d)(2) of this section are concerned, ``operating hours'' shall mean all 
times during which product manufacture or assembly is in operation or 
all times during which product testing or maintenance, production, or 
compilation of records is taking place, or any other procedure or 
activity related to selective enforcement audit testing or to product 
manufacture or assembly is being carried out.
    (e) The manufacturer shall admit to a facility or site an EPA 
Enforcement Officer who presents a warrant authorizing entry. In the 
absence of such warrant, entry to any facility or site under this 
section will be only upon the consent of the manufacturer.
    (1) It is not a violation of this regulation or the Act for any 
person to refuse entry without a warrant.
    (2) The Administrator or his designee may proceed ex parte to obtain 
a warrant whether or not the manufacturer has refused entry.

(42 U.S.C. 4905, 4912, 86 Stat. 1237-1239, 1244)

[41 FR 2172, Jan. 14, 1976, as amended at 43 FR 27989, June 28, 1978; 47 
FR 57711, Dec. 28, 1982]



Sec. 204.5  Exemptions.



Sec. 204.5-1  Testing exemption.

    (a) A new product intended to be used solely for research, 
investigations, studies, demonstrations or training, and so labeled or 
marked on the outside of the container and on the product itself, shall 
be exempt from the prohibitions of sections 10(a) (1), (2), (3), and (5) 
of the Act.
    (b) No request for a testing exemption is required.
    (c) For purposes of section 11(d) of the Act any testing exemption 
shall be void ab initio with respect to each new product, originally 
intended for research, investigations, studies, demonstrations, or 
training, but distributed in commerce for other uses.

[47 FR 57711, Dec. 28, 1982]



Sec. 204.5-2  National security exemptions.

    (a) A new product which is produced to conform with specifications 
developed by a national security agency, and so labeled or marked on the 
outside of the container and on the product itself, shall be exempt from 
the prohibitions of sections 10(a) (1), (2), (3), and (4) of the Act.
    (b) No request for a national security exemption is required.
    (c) For purposes of section 11(d) of the Act, any national security 
exemption shall be void ab initio with respect to each new product, 
originally intended to be produced to conform with specifications 
developed by a national security agency but distributed in commerce for 
other uses.
    (d) Any manufacturer or person subject to the liabilities of section 
11(a) with respect to any product originally intended for a national 
security agency, but distributed in commerce for use in any State, may 
be excluded from the

[[Page 92]]

application of section 11(a) with respect to such product based upon a 
showing that such manufacturer:
    (1) Had no knowledge of such product being distributed in commerce 
for use in any state; and
    (2) Made reasonable efforts to ensure that such products would not 
be distributed in commerce for use in any State. Such reasonable efforts 
would include investigation, prior dealings, contract provisions, etc.

[47 FR 57711, Dec. 28, 1982]



Sec. 204.5-3  Export exemptions.

    (a) A new product intended solely for export, and so labeled or 
marked on the outside of the container and on the product itself, shall 
be exempt from the prohibitions of section 10(a), (1), (2), (3), and (4) 
of the Act.
    (b) No request for an export exemption is required.
    (c) For purposes of section 11(d) of the Noise Control Act, any 
export exemption under section 10(b)(2) shall be void ab initio with 
respect to each new product intended solely for export which is 
distributed in commerce for use in any state.
    (d) The Administrator will not institute proceedings against any 
manufacturer pursuant to section 11(d)(1) of the Noise Control Act with 
respect to any product, originally intended for export, but distributed 
in commerce for use in any state, if it is demonstrated to the 
Administrator's satisfaction that:
    (1) The manufacturer had no knowledge that such product would be 
distributed in commerce for use in any state; and
    (2) The manufacturer made reasonable efforts to ensure that such 
product would not be distributed in commerce for use in any state. Such 
reasonable efforts would include consideration of prior dealings with 
any person which resulted in introduction into commerce of a product 
manufactured for export only, investigation of prior instances known to 
the manufacturer of introduction into commerce of a product manufactured 
for export only, and contract provisions which minimize the probability 
of introduction into commerce of a product manufactured for export only.

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 61454, Dec. 5, 1977. 
Redesignated at 47 FR 57711, Dec. 28, 1982]



                   Subpart B_Portable Air Compressors



Sec. 204.50  Applicability.

    The provisions of this subpart shall apply to portable air 
compressors which are manufactured after the effective dates specified 
in Sec. 204.52, and which are ``New Products'' as defined in the Act. 
These provisions apply only to portable air compressors with a rated 
capacity equal to or above 75 cubic feet per minute which deliver air at 
pressures greater than 50 psig. The provisions do not apply to the 
pneumatic tools or equipment that the portable air compressor is 
designed to power.



Sec. 204.51  Definitions.

    (a) Portable air compressor or compressor means any wheel, skid, 
truck, or railroad car mounted, but not self-propelled, equipment 
designed to activate pneumatic tools. This consists of an air compressor 
(air end), and a reciprocating rotary or turbine engine rigidly 
connected in permanent alignment and mounted on a common frame. Also 
included are all cooling, lubricating, regulating, starting, and fuel 
systems, and all equipment necessary to constitute a complete, self-
contained unit with a rated capacity of 75 cfm or greater which delivers 
air at pressures greater than 50 psig, but does not include any 
pneumatic tools themselves.
    (b) Maximum Rated Capacity means that the portable air compressor, 
operating at the design full speed with the compressor on load, delivers 
its rated cfm output and pressure, as defined by the manufacturer.
    (c) Model year means the manufacturer's annual production period 
which includes January 1 of such calendar year; Provided, that if the 
manufacturer has no annual production period, the term ``model year'' 
shall mean the calendar year.

[[Page 93]]

    (d) Compressor configuration means the basic classification unit of 
a manufacturer's product line and is comprised of compressor lines, 
models or series which are identical in all material respects with 
regard to the parameters listed in Sec. 204.55-3.
    (e) Category means a group of compressor configurations which are 
identical in all aspects with respect to the parameters listed in 
paragraph (c)(1)(i) of Sec. 204.55-2.
    (f) [Reserved]
    (g) Noise emission test means a test conducted pursuant to the 
measurement methodology specified in Sec. 204.54.
    (h) Inspection Criteria means the rejection and acceptance numbers 
associated with a particular sampling plan.
    (i) Acceptable Quality Level (AQL) means the maximum percentage of 
failing compressors that, for purposes of sampling inspection can be 
considered satisfactory as a process average.
    (j) Batch means the collection of compressors of the same category 
or configuration, as designated by the Administrator in a test request, 
from which a batch sample is to be randomly drawn and inspected to 
determine conformance with the acceptability criteria.
    (k) Batch sample means the collection of compressors that are drawn 
from a batch.
    (l) Batch sample size means the number of compressors of the same 
category or configuration which is randomly drawn from the batch sample 
and which will receive emissions tests.
    (m) Test sample means the collection of compressors from the same 
category or configuration which is randomly drawn from the batch sample 
and which will receive emissions tests.
    (n) Batch size means the number, as designated by the Administrator 
in the test request, of compressors of the same category or 
configuration in a batch.
    (o) Test sample size means the number of compressors of the same 
configuration in a test sample.
    (p) Acceptable of a batch means that the number of non-complying 
compressors in the batch sample is less than or equal to the acceptance 
number as determined by the appropriate sampling plan.
    (q) Rejection of a batch means that the number of non-complying 
compressors in the batch sample is greater than or equal to the 
rejection number as determined by the appropriate sampling plan.
    (r) Acceptance of a batch sequence means that the number of rejected 
batches in the sequence is less than or equal to the sequence acceptable 
number as determined by the appropriate sampling plan.
    (s) Rejection of a batch sequence means that the number of rejected 
batches in a sequence is greater than or equal to the sequence rejection 
number as determined by the appropriate sampling plan.
    (t) Shift means the regular production work period for one group of 
workers.
    (u) Failing compressor means that the measured noise emissions of 
the compressor, when measured in accordance with the applicable 
procedure, exceeds the applicable standard.
    (v) Acceptance of a compressor means that the measured noise 
emissions of the compressor, when measured in accordance with the 
applicable procedure, conforms to the applicable standard.
    (w) Test Compressor means a compressor used to demonstrate 
compliance with the applicable noise emissions standard.
    (x) Tampering means those acts prohibited by section 10(a)(2) of the 
Act.

(Secs. 6 and 13, Noise Control Act, Pub. L. 92-574, 86 Stat. 1244; (42 
U.S.C. 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 41635, Aug. 18, 1977; 47 
FR 57711, Dec. 28, 1982]



Sec. 204.52  Portable air compressor noise emission standard.

    (a) Effective January 1, 1978, portable air compressors with maximum 
rated capacity of less than or equal to 250 cubic feet per minute (cfm) 
shall not produce an average sound level in excess of 76 dBA when 
measured and evaluated according to the methodology provided by this 
regulation. Effective July 1, 1978, portable air compressors with 
maximum rated capacity greater than 250 cfm shall not produce an average 
sound level in excess of 76 dBA

[[Page 94]]

when measured and evaluated according to the methodology provided by 
this regulation.
    (b) In-Use Standard. [Reserved]
    (c) Low Noise Emission Product. [Reserved]



Sec. 204.54  Test procedures.

    (a) General. This section prescribes the conditions under which 
noise emission standard compliance Selective Enforcement Auditing or 
Testing by the Administrator must be conducted and the measurement 
procedures that must be used to measure the sound level and to calculate 
the average sound level of portable air compressors on which the test is 
conducted.
    (b) Test site description. The location for measuring noise employed 
during noise compliance testing must consist of an open site above a 
hard reflecting plane. The reflecting plane must consist of a surface of 
sealed concrete or sealed asphalt and must extend one (1) meter beyond 
each microphone location. No reflecting surface, such as a building, 
signboard, hillside, etc., shall be located within 10 meters of a 
microphone location.
    (c) Measurement equipment. The measurement equipment must be used 
during noise standard compliance testing and must consist of the 
following or its equivalent:
    (1) A sound level meter and microphone system that conform to the 
Type I requirements of American National Standard (ANS) S1.4-1971, 
``Specification for Sound Level Meters,'' and to the requirements of the 
International Electrotechnical Commission (IEC) Publication No. 179, 
``Precision Sound Level Meters.''
    (2) A windscreen must be employed with the microphone during all 
measurements of portable air compressor noise when the wind speed 
exceeds 11 km/hr. The windscreen shall not affect the A-weighted sound 
levels from the portable air compressor in excess of 0.5 dB.
    (3) The entire acoustical instrumentation system including the 
microphone and cable shall be calibrated before each test series and 
confirmed afterward. A sound level calibrator accurate to within 0.5 dB shall be used. A calibration of the 
instrumentation shall be performed at least annually using the 
methodology of sufficient precision and accuracy to determine compliance 
with ANS S1.4-1971 and IEC 179. This calibration shall consist, at a 
minimum, of an overall frequency response calibration and an attenuator 
(gain control) calibration plus a measurement of dynamic range and 
instrument noise floor.
    (4) An anemometer or other device accurate to within 10 percent shall be used to measure wind velocity.
    (5) An indicator accurate to within 2 percent 
shall be used to measure portable air compressor engine speed.
    (6) A gauge accurate to within 5 percent shall 
be used to measure portable compressor air pressure.
    (7) A metering device accurate to within 10 
percent shall be used to measure the portable air compressor compressed 
air volumetric flow rate.
    (8) A barometer for measuring atmospheric pressure accurate to 
within 5 percent.
    (9) A thermometer for measuring temperature accurate to within 
1 degree.
    (d) Portable air compressor operation. The portable air compressor 
must be operated at the design full speed with the compressor on load, 
delivering its rated flow and output pressure, during noise emission 
standard compliance testing. The air discharge shall be provided with a 
resistive loading such that no significant pressure drop or throttling 
occurs across the compressor discharge valve. The air discharge shall be 
piped clear of the test area or fed into an effective silencer. The 
sound pressure level due to the air discharge shall be at least 10 dB 
below the sound pressure level generated by the portable air compressor.
    (e) Test conditions. Noise standard compliance testing must be 
carried out under the following conditions:
    (1) No rain or other precipitation,
    (2) No wind above 19 km/hr,
    (3) No observer located within 1 meter, in any direction, of any 
microphone location, nor between the test unit and any microphone,
    (4) Portable air compressor sound levels, at each microphone 
location, 10 dB or greater than the background sound level,

[[Page 95]]

    (5) The machine shall have been warmed up and shall be operating in 
a stable condition as for continuous service and at its maximum rated 
capacity. All cooling air vents in the engine/compressor enclosure, 
normally open during operation, shall be fully open during all sound 
level measurements. Service doors that should be closed during normal 
operation (at any and all ambient temperatures) shall be closed during 
all sound level measurements.
    (f) Microphone locations. Five microphone locations must be employed 
to acquire portable air compressor sound levels to test for noise 
standard compliance. A microphone must be located 7 .1 meters from the right, left, front, and back sides 
and top of the test unit. The microphone position to the right, left, 
front, and back sides of the test unit must be located 1.5 .1 meters above the reflecting plane.
    (g) Data required. The following data must be acquired during noise 
emission standard compliance testing:
    (1) A-weighted sound level at one microphone location prior to 
operation of the test unit and at all microphone locations during test 
unit operations, as defined in paragraph (d) of this section.
    (2) Portable air compressor engine speed.
    (3) Portable air compressor compressed gas pressure.
    (4) Portable air compressor flow rate.
    (5) All other data contained in Appendix I, Table IV.
    (h) Calculation of average sound level. The average A-weighted sound 
level from measurements at the specified microphone locations must be 
calculated by the following method:

L=10 log (1/5[Antilog L1/10+Antilog L2/10+Antilog 
    L3/10+ Antilog L4/10+ Antilog L5/
    10])

Where:

L=The average A-weighted sound level (in decibels)
L1=The A-weighted sound level (in decibels) at microphone 
position 1
L2=The A-weighted sound level (in decibels) at microphone 
position 2
L3=The A-weighted sound level (in decibels) at microphone 
position 3
L4=The A-weighted sound level (in decibels) at microphone 
position 4
L5=The A-weighted sound level (in decibels) at microphone 
position 5

    (i) The Administrator may approve applications from manufacturers of 
portable air compressors for the approval of test procedures which 
differ from those contained in this part so long as the alternate 
procedures have been demonstrated to correlate with the prescribed 
procedure. To be acceptable, alternate testing procedures shall be such 
that the test results obtained will identify all those test units which 
would not comply with the noise emission limit prescribed in Sec. 
204.52 when tested in accordance with the procedures contained in Sec. 
204.54 (a) through (h). Tests conducted by manufacturers under approved 
alternate procedures may be accepted by the Administrator for all 
purposes.
    (j) Presentation of information. All information required by this 
section may be recorded using the format recommended on the Noise Data 
Sheet shown in Appendix I, Table IV.

[41 FR 2172, Jan. 14, 1976, as amended at 41 FR 8347, Feb. 26, 1976; 47 
FR 57711, Dec. 28, 1982]



Sec. 204.55  Requirements.



Sec. 204.55-1  General standards.

    (a) Every new compressor manufactured for distribution in commerce 
in the United States which is subject to the standards prescribed in 
this subpart and not exempted in accordance with Sec. 204.5:
    (1) Shall be labeled in accordance with the requirements of Sec. 
204.55-4.
    (2) Shall conform to the applicable noise emission standard 
established in Sec. 204.52
    (b) [Reserved]

[41 FR 2172, Jan. 14, 1976, as amended at 47 FR 57711, Dec. 28, 1982]



Sec. 204.55-2  Requirements.

    (a)(1) Prior to distribution in commerce, compressors of a specific 
configuration must verify such configurations in accordance with this 
subpart.
    (2) [Reserved]
    (3) At any time with respect to a configuration under this subpart, 
the Administrator may require that the manufacturer ship test 
compressors to an

[[Page 96]]

EPA test facility in order for the Administrator to perform the tests 
required for production verification.
    (b) The requirements for purposes of testing by the Administrator 
and Selective Enforcement Auditing consist of:
    (1) Testing in accordance with Sec. 204.54 of a compressor selected 
in accordance with Sec. 204.57-2; and
    (2) Compliance of the test compressor with the applicable standards 
when tested in accordance with Sec. 204.54.
    (c)(1) In lieu of testing compressors of every configuration, as 
described in paragraph (b) of this section, the manufacturer may elect 
to verify the configuration based on representative testing, the 
requirements of which consist of:
    (i) Grouping configurations into a category where each category will 
be determined by a separate combination of at least the following 
parameters (a manufacturer may use more parameters):
    (A) Engine type.
    (1) Gasoline--two stroke cycle
    (2) Gasoline--four stroke cycle
    (3) Diesel--two stroke cycle
    (4) Diesel--four stroke cycle
    (5) Rotary--Wankel
    (6) Turbine
    (7) Other
    (B) Engine manufacturer
    (C) Compressor delivery rate (at rated pressure)
    (ii) Identifying the configuration within each category which emits 
the highest sound level in dBA based on best technical judgment, 
emission test data, or both.
    (iii) Testing in accordance with Sec. 204.54 selected in accordance 
with Sec. 204.57-2 which must be a compressor of the configuration 
which is identified pursuant to paragraph (c)(1)(iii) of this section as 
having the highest sound level (estimated or actual) within the 
category.
    (iv) Compliance of the test compressor with applicable standards 
when tested in accordance with Sec. 204.54.
    (2) Where the requirements of paragraph (c)(1) of this section are 
complied with, all those configurations contained within a category are 
considered represented by the tested compressor.
    (3) Where the manufacturer tests a compressor configuration which 
has not been determined as having the highest sound level of a category, 
but all other requirements of paragraph (c)(1) of this section are 
complied with, all those configurations contained within that category 
which are determined to have sound levels no greater than the tested 
compressor are considered to be represented by the tested compressor: 
However, a manufacturer must for purposes of Testing by the 
Administrator and Selective Enforcement Auditing verify according to the 
requirements of paragraph (b)(1) and/or (c)(1) of this section any 
configurations in the subject category which have a higher sound level 
than the compressor configuration tested.
    (d) A manufacturer may elect for purposes of Testing by the 
Administrator and Selective Enforcement Auditing to use representative 
testing, pursuant to paragraph (c) of this section, all or part of his 
product line.
    (e) The manufacturer may, at his option, proceed with any of the 
following alternatives with respect to any compressor determined not in 
compliance with applicable standards:
    (1) In the case of representative testing, a new test compressor 
from another configuration must be selected according to the 
requirements of paragraph (c) of this section in order to verify the 
configurations represented by the non-compliant compressor.
    (2) Modify the test compressor and demonstrate by testing that it 
meets applicable standards. The manufacturer must modify all production 
compressors of the same configuration in the same manner as the test 
compressor before distribution into commerce.

(Secs. 6 and 13, Noise Control Act, Pub. L. 92-574, 86 Stat. 1244; (42 
U.S.C. 4912); 42 U.S.C. 4905; 86 Stat. 1237 and secs. 6, 10, 11, 13, 
Pub. L. 92-574, 86 Stat. 1234 (42 U.S.C. 4905, 4909, 4910, 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 61455, Dec. 5, 1977; 47 
FR 57711, Dec. 28, 1982; 49 FR 26738, June 29, 1984]



Sec. 204.55-3  Configuration identification.

    (a) A separate compressor configuration shall be determined by each 
combination of the following parameters:

[[Page 97]]

    (1) The compressor type (screw, sliding vane, etc.).
    (2) Number of compressor stages.
    (3) Maximum pressure (psi).
    (4) Air intake system of compressor:
    (i) Number of filters;
    (ii) Type of filters.
    (5) The engine system:
    (i) Number of cylinders and configuration (L-6, V-8, V-12);
    (ii) Displacement;
    (iii) Horsepower;
    (iv) Full load rpm.
    (6) Type cooling system, e.g., air cooled, water cooled.
    (7) Fan:
    (i) Diameter;
    (ii) Maximum fan rpm.
    (8) The compressor enclosure:
    (i) Height, length, and width;
    (ii) Acoustic material manufacturer, type, part number.
    (9) The induction system (engine):
    (i) Natural;
    (ii) Turbocharged.
    (10) The muffler:
    (i) Manufacturer;
    (ii) Manufacturer part number;
    (iii) Quantity of mufflers used;
    (11) Category parameters listed at Sec. 204.55-2.



Sec. 204.55-4  Labeling.

    (a)(1) The manufacturer of any compressor subject to the standards 
prescribed in Sec. 204.52 shall, at the time of manufacture, affix a 
permanent, legible label, of the type and in the manner described below, 
containing the information hereinafter provided, to all such compressors 
to be distributed in commerce.
    (2) The label shall be permanently attached, in a readily visible 
position, on the compressor enclosure.
    (3) The label shall be affixed by the compressor manufacturer, who 
has verified such compressor, in such a manner that it cannot be removed 
without destroying or defacing the label, and shall not be affixed to 
any equipment that is easily detached from such compressor.
    (4) Labels for compressors not manufactured solely for use outside 
the United States shall contain the following information lettered in 
the English language in block letters and numerals, which shall be of a 
color that contrasts with the background of the label:
    (i) The label heading: Compressor Noise Emission Control 
Information;
    (ii) Full corporate name and trademark of manufacturer;
    (iii) Date of manufacture, which may consist of a serial number or 
code in those instances where records are specified and maintained.
    (iv) The statement:

    This Compressor Conforms to U.S. E.P.A. Regulations for Noise 
Emissions Applicable to Portable Air Compressors. The following acts or 
the causing thereof by any person are prohibited by the Noise Control 
Act of 1972:
    (A) The removal or rendering inoperative, other than for the purpose 
of maintenance, repair, or replacement, of any noise control device or 
element of design (listed in the owner's manual) incorporated into this 
compressor in compliance with the Noise Control Act;
    (B) The use of this compressor after such device or element of 
design has been removed or rendered inoperative.

    (b) Compressors manufactured solely for use outside the United 
States shall be clearly labeled ``For Export Only.''

(Secs. 6, 13, Pub. L. 92-574, (42 U.S.C. 4912); 42 U.S.C. 4905; 86 Stat. 
1237 and secs. 6, 10, 11, 13, Pub. L. 92-574, 86 Stat. 1234 (42 U.S.C. 
4905, 4909, 4910, 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 61455, Dec. 5, 1977. 
Redesignated at 47 FR 57712, Dec. 28, 1982, and amended at 49 FR 26738, 
June 29, 1984]



Sec. 204.56  Testing by the Administrator.

    (a)(1) The Administrator may require that any compressor tested or 
scheduled to be tested pursuant to these regulations or any other 
untested compressors be submitted to him, at such place and time as he 
may designate, for the purpose of conducting tests in accordance with 
the test procedures described in Sec. 204.54 to determine whether such 
compressors conform to applicable regulations.
    (2) The Administrator may specify that he will conduct such testing 
at the manufacturer's facility, in which case instrumentation and 
equipment of the type required by these regulations shall be made 
available by the manufacturer for test operations. The Administrator may 
conduct such tests with his own equipment, which shall be equal to or 
exceed the performance

[[Page 98]]

specifications of the instrumentation or equipment specified by the 
Administrator in these regulations.
    (b)(1) If, based on tests conducted by the Administrator or other 
relevant information, the Administrator determines that the test 
facility does not meet the requirements of Sec. 204.54-1 (a) and (b) he 
will notify the manufacturer in writing of his determination and the 
reasons therefor.
    (2) The manufacturer may at any time within 15 days after receipt of 
a notice issued under paragraph (b)(1) of this section request a hearing 
conducted in accordance with 5 U.S.C. 554 on the issue of whether his 
test facility was in conformance. Such notice will not take effect until 
15 days after receipt by the manufacturer, or if a hearing is requested 
under this paragraph, until adjudication by the hearing examiner.
    (3) After any notification issued under paragraph (b)(1) of this 
section has taken effect, no data thereafter derived from such test 
facility will be acceptable for purposes of this part.
    (4) The manufacturer may request in writing that the Administrator 
reconsider this determination under paragraph (b)(1) of this section 
based on data or information which indicates that changes have been made 
to the test facility and such changes have resolved the reasons for 
disqualification.
    (5) The Administrator will notify the manufacturer of his 
determination and an explanation of the reasons underlying it with 
regard to the requalification of the test facility within 10 working 
days after receipt of the manufacturer's request for reconsideration 
pursuant to paragraph (b)(4) of this section.

(Secs. 6, 13, Pub. L. 92-574 (42 U.S.C. 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 61455, Dec. 5, 1977]



Sec. 204.57  Selective enforcement auditing.



Sec. 204.57-1  Test request.

    (a) The Administrator will request all testing under this subpart by 
means of a test request addressed to the manufacturer.
    (b) [Reserved]
    (c) The test request will specify the compressor category or 
configuration selected for testing, the batch from which sampling is to 
begin, for testing and the batch size, the manufacturer's plant or 
storage facility from which the compressors must be selected, and the 
time at which compressors must be selected. The test request will also 
provide for situations in which the selected configuration or category 
is unavailable for testing. The test request may include an alternative 
category or configuration selected for testing in the event that 
compressors of the first specified category or configuration are not 
available for testing because the compressors are not being manufactured 
at the specified plant and/or are not being manufactured during the 
specified time or not being stored at the specified plant or storage 
facility.
    (d) Any manufacturer shall, upon receipt of the test request, select 
and test a batch sample of compressors from two consecutively produced 
batches of the compressor category or configurations specified in the 
test request in accordance with these regulations and the conditions 
specified in the test request.
    (e)(1) Any testing conducted by the manufacturer pursuant to a test 
request shall be initiated within such period as is specified in the 
test request; Except, that such initiation may be delayed for increments 
of 24 hours or one business day where ambient test site weather 
conditions in any 24-hour period do not permit testing: Provided, That 
ambient test site weather conditions for that period are recorded.
    (2) The manufacturer shall complete noise emission testing on a 
minimum of five compressors per day, unless otherwise provided for by 
the Administrator or unless ambient test site conditions only permit the 
testing of a lesser number: Provided, That ambient test site weather 
conditions for that period are recorded.
    (3) The manufacturer will be allowed 24 hours to ship compressors 
from a batch sample from the assembly plant to the testing facility if 
the facility is not located at the plant or in close proximity to the 
plant; Except, that the Administrator may approve more

[[Page 99]]

time based upon a request by the manufacturer accompanied by a 
satisfactory justification.
    (f) The Administrator may issue an order to the manufacturer to 
cease to distribute into commerce compressors of a specified category or 
configuration being manufactured at a particular facility if:
    (1) The manufacturer refuses to comply with the provisions of a test 
request issued by the Administrator pursuant to this section; or
    (2) The manufacturer refuses to comply with any of the requirements 
of this section.
    (g) A cease-to-distribute order shall not be issued under paragraph 
(f) of this section if such refusal is caused by conditions and 
circumstances outside the control of the manufacturer which render it 
impossible to comply with the provisions of a test request or any other 
requirements of this section. Such conditions and circumstances shall 
include, but are not limited to, any uncontrollable factors which result 
in the temporary unavailability of equipment and personnel needed to 
conduct the required tests, such as equipment breakdown or failure or 
illness of personnel, but shall not include failure of the manufacturer 
to adequately plan for and provide the equipment and personnel needed to 
conduct the tests. The manufacturer will bear the burden of establishing 
the presence of the conditions and circumstances required by this 
paragraph.
    (h) Any such order shall be issued only after a notice and 
opportunity for a hearing in accordance with section 554 of Title 5 of 
the United States Code.

(Secs. 6, 11 and 13, Noise Control Act, Pub. L. 92-574, 86 Stat. 1244; 
(42 U.S.C. 4910 and 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 41635, Aug. 18, 1977; 42 
FR 61455, Dec. 5, 1977; 47 FR 57712, Dec. 28, 1982]



Sec. 204.57-2  Test compressor sample selection.

    (a) Compressors comprising the batch sample which are required to be 
tested pursuant to a test request in accordance with this subpart will 
be randomly selected from a batch of compressors of the category or 
configuration specified in the test request. The random selection will 
be achieved by sequentially numbering all of the compressors in the 
batch and then using a table of random numbers to select the number of 
compressors, as specified in paragraph (c) of this section, based on the 
batch size designated by the Administrator in the test request. An 
alternative selection plan may be used by a manufacturer: Provided, That 
such a plan is approved by the Administrator.
    (b) The Acceptable Quality Level is 10 percent. The appropriate 
sampling plans associated with the designated AQL are contained in 
Appendix I, Table II.
    (c) The appropriate batch sample size will be determined by 
reference to Appendix I, Tables I and II. A code letter is obtained from 
Table I based on the batch size designated by the Administrator in a 
test request. The batch sample size will be equal to the maximum 
cumulative sample size as listed in Table II for the appropriate code 
letter obtained from Table I plus an additional ten percent rounded off 
to the next highest number.
    (d) Individual compressors comprising the test sample will be 
randomly selected from the batch sample using the same random selection 
plan as in paragraph (a) of this section. Test sample size will be 
determined by entering Table II.
    (e) The test compressor of the category or configuration selected 
for testing shall have been assembled by the manufacturer for 
distribution in commerce using the manufacturers normal production 
process.
    (f) Unless otherwise indicated in the test request, the manufacturer 
will select the batch sample from the production batch next scheduled 
after receipt of the test request of the category or configuration 
specified in the test request.
    (g) Unless otherwise indicated in the test request, the manufacturer 
shall select the compressors designated in the test request for testing.
    (h) At their discretion, EPA Enforcement Officers, rather than the 
manufacturer, may select the compressors designated in the test request.

[[Page 100]]

    (i) The manufacturer will keep on hand all compressors in the batch 
sample until such time as the batch is accepted or rejected in 
accordance with Sec. 204.57-6; Except, that compressors actually tested 
and found to be in conformance with these regulations need not be kept.



Sec. 204.57-3  Test compressor preparation.

    (a) Prior to the official test, the test compressor selected in 
accordance with Sec. 204.57-2 shall not be prepared, tested, modified, 
adjusted, or maintained in any manner unless such adjustments, 
preparations, modifications and/or tests are part of the manufacturer's 
prescribed manufacturing and inspection procedures and are documented in 
the manufacturer's internal compressor assembly and inspection 
procedures or unless such adjustments and/or tests are required or 
permitted under this subpart or are approved in advance by the 
Administrator. The manufacturer may perform adjustments, preparations, 
modifications and/or tests normally performed by a dealer to prepare the 
compressor for delivery to a customer or the adjustments, preparations, 
modifications and/or tests normally performed at the port-of-entry by 
the manufacturer to prepare the compressor for delivery to a dealer or 
customer.
    (b) Equipment of fixtures necessary to conduct the test may be 
installed on the compressor: Provided, That such equipment of fixtures 
shall have no effect on the noise emissions of the compressor, as 
determined by the appropriate measurement methodology.
    (c) In the event of compressor manfunction (i.e., failure to start, 
misfiring cylinder, etc.), the manufacturer may perform the maintenance 
necessary to enable the compressor to operate in a normal manner.
    (d) No quality control, testing, assembly, or selection procedures 
shall be used on the completed test compressor or any portion thereof, 
including parts and subassemblies, that will not normally be used during 
the production and assembly of all other compressors of that category 
which will be distributed in commerce, unless such procedures are 
required or permitted under this subpart or are approved in advance by 
the Administrator.

[47 FR 57712, Dec. 28, 1982]



Sec. 204.57-4  Testing.

    (a) The manufacturer shall conduct one valid test in accordance with 
the test procedures specified in Sec. 204.54 for each compressor 
selected for testing pursuant to this subpart.
    (b) No maintenance will be performed on test compressors, except as 
provided for by Sec. 204.57-3. In the event a compressor is unable to 
complete the emission test, the manufacturer may replace the compressor. 
Any replacement compressor will be a production compressor of the same 
configuration, and the replacement compressor will be randomly selected 
from the batch sample and will be subject to all the provisions of these 
regulations.



Sec. 204.57-5  Reporting of test results.

    (a)(1) The manufacturer shall submit a copy of the test report for 
all testing conducted pursuant to Sec. 204.57 at the conclusion of each 
twenty-four hour period during which testing is done.
    (2) For each test conducted the manufacturer will provide the 
following information:
    (i) Configuration and category identification, where applicable.
    (ii) Year, make, assembly date, and model of compressor.
    (iii) Compressor serial number.
    (iv) Test results by serial numbers
    (3) The first test report for each batch sample will contain a 
listing of all serial numbers in that batch.
    (b) In the case where an EPA Enforcement Officer is present during 
testing required by this subpart, the written reports requested in 
paragraph (a) of this section may be given directly to the Enforcement 
Officer.
    (c) Within five days after completion of testing of all compressors 
in a batch sample, the manufacturer shall submit to the Administrator a 
final report which will include the information required by the test 
request in the format as stipulated, in addition to the following:
    (1) The name, location, and description of the manufacturer's noise 
test facilities which meet the specifications of Sec. 204.54 and were 
utilized to conduct

[[Page 101]]

testing reported pursuant to this section; except, that a test facility 
that has been described in a previous submission under this subpart need 
not be described again but must be identified as such.
    (2) A description of the random compressor selection method used, 
referencing any tables of random numbers that were used, and the name of 
the person in charge of the random number selection.
    (3) The following information for each test conducted:
    (i) The completed data sheet required by Sec. 204.54 for all noise 
emission tests including, for each invalid test, the reason for 
invalidation.
    (ii) A complete description of any modification, repair, 
preparation, maintenance, and/or testing which was performed on the test 
compressor and will not be performed on all other production 
compressors.
    (iii) The reason for the replacement, where a replacement compressor 
was authorized by the Administrator, and, if any, the test results for 
replaced compressors.
    (4) The following statement and endorsement:

    This report is submitted pursuant to section 6 and section 13 of the 
Noise Control Act of 1972. All testing for which data is reported herein 
was conducted in strict conformance with applicable regulations under 40 
CFR Part 204 et seq. All the data reported herein are a true and 
accurate representation of such testing. All other information reported 
herein is, to the best of (company) knowledge true and accurate. I am 
aware of the penalties associated with violations of the Noise Control 
Act of 1972 and the regulations thereunder.

                                             (authorized representative)

    (d) All information required to be forwarded to the Administrator 
pursuant to this section shall be addressed to Director, Noise 
Enforcement Division (EN-387), U.S. Environmental Protection Agency, 
Washington, DC 20460.

(Secs. 6 and 13, Noise Control Act, Pub. L. 92-574, 86 Stat. 1244 (42 
U.S.C. 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 41635, Aug. 18, 1977; 43 
FR 38705, Aug. 30, 1978]



Sec. 204.57-6  Acceptance and rejection of batches.

    (a) A failing compressor is one whose measured sound level is in 
excess of the applicable noise emission standard.
    (b) The batch from which a batch sample is selected will be accepted 
or rejected based upon the number of failing compressors in the batch 
sample. A sufficient number of test samples will be drawn from the batch 
sample until the cumulative number of failing compressors is less than 
or equal to the acceptance number or greater than or equal to the 
rejection number appropriate for the cumulative number of compressors 
tested. The acceptance and rejection numbers listed in Appendix I, Table 
II at the appropriate code letter obtained according to Sec. 204.57-2 
will be used in determining whether the acceptance or rejection of a 
batch has occurred.
    (c) Acceptance or rejection of a batch takes place when a decision 
is made on the last compressor required to make a decision under 
paragraph (b) of this section.



Sec. 204.57-7  Acceptance and rejection of batch sequence.

    (a) The manufacturer will continue to inspect consecutive batches 
until the batch sequence is accepted or rejected. The batch sequence 
will be accepted or rejected based upon the number of rejected batches. 
A sufficient number of consecutive batches will be inspected until the 
cumulative number of rejected batches is less than or equal to the 
sequence acceptance number or greater than or equal to the sequence 
rejection number appropriate for the cumulative number of batches 
inspected. The acceptance and rejection numbers listed in Appendix I, 
Table III at the appropriate code letter obtained according to Sec. 
204.57-2 will be used in determining whether the acceptance or rejection 
of a batch sequence has occurred.
    (b) Acceptance or rejection of a batch sequence takes places when 
the decision is made on the last compressor required to make a decision 
under paragraph (a) of this section.
    (c) If the batch sequence is accepted, the manufacturer will not be 
required to perform any additional testing on

[[Page 102]]

compressors from subsequent batches pursuant to the initiating test 
request.
    (d) The Administrator may terminate testing earlier than required in 
paragraph (b) of this section based on a request by the manufacturer 
accompanied by voluntary cessation of distribution in commerce, from all 
plants, of compressors from the configuration in question: Provided, 
That once production is reinitiated, the manufacturer must take the 
action described in Sec. 204.57-9 (a)(1) and (a)(2) prior to 
distribution in commerce of any compressors from any plant of the 
compressor category or configuration in question.



Sec. 204.57-8  Continued testing.

    (a) If a batch sequence is rejected in accordance with paragraph (b) 
of Sec. 204.57-7, the Administrator may require that any or all 
compressors of that category, configuration or subgroup thereof produced 
at that plant be tested before distribution in commerce.
    (b) The Administrator will notify the manufacturer in writing of his 
intent to require such continued testing of compressors pursuant to 
paragraph (a) of this section.
    (c) The manufacturer may request a hearing on the issues of whether 
the selective enforcement audit was conducted properly; whether the 
criteria for batch sequence rejection in Sec. 204.57-7 have been met; 
and, the appropriateness or scope of a continued testing order. In the 
event that a hearing is requested, the hearing shall begin no later than 
15 days after the date on which the Administrator received the hearing 
request. Neither the request for a hearing nor the fact that a hearing 
is in progress shall affect the responsibility of the manufacturer to 
commence and continue testing required by the Administrator pursuant to 
paragraph (a) of this section.
    (d) Any tested compressor which demonstrates conformance with the 
applicable standards may be distributed into commerce.
    (e) Any knowing distribution into commerce of a compressor which 
does not comply with the applicable standards is a prohibited act.

(Sec. 6, 13, Pub. L. 92-574 (42 U.S.C. 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 61455, Dec. 5, 1977; 44 
FR 54295, Sept. 19, 1979]



Sec. 204.57-9  Prohibition of distribution in commerce; 
manufacturer's remedy.

    (a) The Administrator will permit the cessation of continued testing 
under Sec. 204.57-8 once the manufacturer has taken the following 
actions:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the compressors, describes the 
problem, and describes the proposed quality control and/or quality 
assurance remedies to be taken by the manufacturer to correct the 
problem or follows the requirements for an engineering change. Such 
requirements include the following:
    (i) Any change to a configuration with respect to any of the 
parameters stated in Sec. 204.55-3 shall constitute the addition of a 
new and separate configuration or category to the manufacturer's product 
line.
    (ii) When a manufacturer introduces a new category or configuration 
to his product line, he shall proceed in accordance with Sec. 204.55-2.
    (iii) If the configuration to be added can be grouped within a 
verified category and the new configuration is estimated to have a lower 
sound level than a previously verified configuration with the same 
category, the configuration shall be considered verified.
    (2) Demonstrates that the specified compressor category, 
configuration or subgroup thereof has passed a retest conducted in 
accordance with Sec. 204.57 and the conditions specified in the initial 
test request.
    (3) The manufacturer may begin testing under paragraph (a)(2) of 
this section, upon submitting such report, and may cease continued 
testing upon making the demonstration required by paragraph (a)(2) of 
this section: Provided, That the Administrator may require resumption of 
contined testing if he determines that the manufacturer has not 
satisfied the requirements of paragraphs (a) (1) and (2) of this 
section.

[[Page 103]]

    (4) In lieu of paragraphs (a) (1) and (2) of this section, the 
Administrator will permit the cessation of continued testing under Sec. 
204.57-8 with respect to any subgroup of a nonconforming category or 
configuration if the manufacturer demonstrates to the satisfaction of 
the Administrator that such subgroup does not exhibit the cause of the 
nonconformity of such category or configuration.
    (b) Any compressor failing the prescribed noise emission tests 
conducted pursuant to this Subpart B may not be distributed in commerce 
until necessary adjustments or repairs have been made and the compressor 
passes a retest.
    (c) No compressors of a rejected batch which are still in the hands 
of the manufacturer may be distributed in commerce unless the 
manufacturer has demonstrated to the satisfaction of the Administrator 
that such compressors do, in fact, conform to the regulations; except, 
that any compressor that has been tested and does, in fact, conform with 
these regulations may be distributed in commerce.

(Secs. 6, 10, 13, Pub. L. 92-574 (42 U.S.C. 4909 and 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 61455, Dec. 5, 1977; 47 
FR 57712, Dec. 28, 1982]



Sec. 204.58  In-use requirements.



Sec. 204.58-1  Warranty.

    (a) The portable air compressor manufacturer shall include in the 
owner's manual or in other information supplied to the ultimate 
purchaser, the following statement:

                        Noise Emissions Warranty

    The manufacturer warrants to the ultimate purchaser and each 
subsequent purchaser that this air compressor was designed, built, and 
equipped to conform at the time of sale to the first retail purchaser, 
with all applicable U.S. E.P.A. noise control regulations.
    This warranty is not limited to any particular part, component, or 
system of the air compressor. Defects in the design, assembly, or in any 
part, component, or system of the compressor which, at the time of sale 
to the first retail purchaser, caused noise emissions to exceed Federal 
standards are covered by this warranty for the life of the air 
compressor.

    (b) [Reserved]

(Secs. 6 and 13, Noise Control Act, Pub. L. 92-574, 86 Stat. 1244 (42 
U.S.C. 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 47 FR 57712, Dec. 28, 1982]



Sec. 204.58-2  Tampering.

    (a) For each configuration of air compressors covered by this part, 
the manufacturer shall develop a list of those acts which, in his 
judgment, might be done to the air compressor in use and which would 
constitute the removal or rendering inoperative of noise control devices 
or elements of design of the compressor.
    (b) The manufacturer shall include in the owner's manual the 
following information:
    (1) The statement:

             Tampering With Noise Control System Prohibited

    Federal law prohibits the following acts or the causing thereof:
    (1) The removal or rendering inoperative by any persons, other than 
for purposes of maintenance, repair, or replacement, of any devices or 
element of design incorporated into any new compressor for the purpose 
of noise control prior to its sale or delivery to the ultimate purchaser 
or while it is in use; or (2) the use of the compressor after such 
device or element of design has been removed or rendered inoperative by 
any person.

    (2) The statement:

    Among those acts included in the prohibition against tampering are 
the acts listed below.


Immediately following this statement, the manufacturer shall include the 
list developed under paragraph (a) of this section.
    (c) Any act included in the list prepared pursuant to paragraph (a) 
of this section is presumed to constitute tampering; however, in any 
case in which a proscribed act has been committed and it can be shown 
that such act resulted in no increase in the sound level of the 
compressor or that the compressor still meets the noise emission 
standard of Sec. 204.52, such set will not constitute tampering.

[[Page 104]]

    (d) The provisions of this section are not intended to preclude any 
State or local jurisdiction from adopting and enforcing its own 
prohibitions against the removal or rendering inoperative of noise 
control systems on compressors subject to this part.

(Secs. 6 and 13, Noise Control Act, Pub. L. 92-574, 86 Stat. 1244 (42 
U.S.C. 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 47 FR 57713, Dec. 28, 1982]



Sec. 204.58-3  Instructions for maintenance, use, and repair.

    (a)(1) The manufacturer shall provide to the ultimate purchaser of 
each portable air compressor covered by this part written instructions 
for the proper maintenance, use, and repair of the compressor in order 
to provide reasonable assurance of the elimination or minimization of 
noise emission degradation throughout the life of the compressor.
    (2) The purpose of the instructions is to inform purchasers and 
mechanics of those acts necessary to reasonably assure that degradation 
of noise emission levels is eliminated or minimized during the life of 
the compressor. Manufacturers should prepare the instructions with this 
purpose in mind. The instructions should be clear and, to the extent 
practicable, written in non-technical language.
    (3) The instructions must not be used to secure an unfair 
competitive advantage. They should not restrict replacement equipment to 
original equipment or service to dealer service. Manufacturers who so 
restrict replacement equipment must make public any performance 
specifications on such equipment.
    (b) For the purpose of encouraging proper maintenance, the 
manufacturer shall provide a record or log book which shall contain a 
performance schedule for all required noise emission control 
maintenance. Space shall be provided in this record book so that the 
purchaser can note what maintenance was done, by whom, where and when.

(Secs. 6, 13, Pub. L. 92-574 (42 U.S.C. 4912))

[41 FR 2172, Jan. 14, 1976, as amended at 47 FR 57713, Dec. 28, 1982]



Sec. 204.59  Recall of non-complying compressors.

    (a) Pursuant to section 11(d)(1) of the Act, the Administrator may 
issue an order to the manufacturer to recall and repair or modify any 
compressor distributed in commerce not in compliance with this subpart.
    (b) A recall order issued pursuant to this section shall be based 
upon a determination by the Administrator that compressors of a 
specified category or configuration have been distributed in commerce 
which do not conform to the regulations. Such determination may be based 
on:
    (1) A technical analysis of the noise emission characteristics of 
the category or configuration in question; or
    (2) Any other relevant information, including test data.
    (c) For the purposes of this section, noise emissions may be 
measured by any test prescribed in Sec. 204.54 for testing prior to 
sale or any other test which has been demonstrated to correlate with the 
prescribed test procedure.
    (d) Any such order shall be issued only after notice and an 
opportunity for a hearing in accordance with section 554 of Title 5 of 
the United States Code.
    (e) All costs, including labor and parts, associated with the recall 
and repair or modification of non-complying compressors under this 
section shall be borne by the manufacturer.
    (f) This section shall not limit the discretion of the Administrator 
to take any other actions which are authorized by the Act.

(Secs. 6, 11, Pub. L. 92-574 (42 U.S.C. 4910))

[41 FR 2172, Jan. 14, 1976, as amended at 42 FR 61456, Dec. 5, 1977]



                       Sec. Appendix I to Part 204

                    Table I--Sample Size Code Letters
------------------------------------------------------------------------
                  Batch size                          Code letter
------------------------------------------------------------------------
4 to 8.......................................  A.
9 to 15......................................  B.
16 to 25.....................................  C.
26 and larger................................  D.
------------------------------------------------------------------------


[[Page 105]]


                                 Table II--Sampling Plans for Inspecting Batches
----------------------------------------------------------------------------------------------------------------
                                                                                             Batch inspection
                                                                     Test     Cumulative         criteria
        Sample size code letter                Test sample          sample       test    -----------------------
                                                                     size       sample    Acceptance   Rejection
                                                                                 size       number      number
----------------------------------------------------------------------------------------------------------------
A.....................................  1st.....................           4           4           0           1
B.....................................  1st.....................           3           3           0           1
C.....................................  1st.....................           3           3           0           2
                                        2d......................           3           6           1           2
D.....................................  1st.....................           2           2       (\1\)           2
                                        2d......................           2           4       (\1\)           2
                                        3d......................           2           6           0           2
                                        4th.....................           2           8           0           3
                                        5th.....................           2          10           1           3
                                        6th.....................           2          12           1           3
                                        7th.....................           2          14           2           3
----------------------------------------------------------------------------------------------------------------
\1\ Batch acceptance not permitted at this sample size.


                                         Table III--Batch Sequence Plans
----------------------------------------------------------------------------------------------------------------
                                                                                            Sequence inspection
                                                                              Cumulative         criteria
                     Sample size code letter                        Number      number   -----------------------
                                                                    batches     batches   Acceptance   Rejection
                                                                                            number      number
----------------------------------------------------------------------------------------------------------------
A...............................................................           2           2           1       (\1\)
                                                                           2           4           2           4
                                                                           2           6           3           5
                                                                           2           8           4           5
B...............................................................           2           2           0       (\1\)
                                                                           2           4           1           4
                                                                           2           6           2           5
                                                                           2           8           3           5
                                                                           2          10           4           6
                                                                           2          12           5           6
C...............................................................           2           2       (\2\)           2
                                                                           2           4           0           2
                                                                           2           6           0           3
                                                                           2           8           1           3
                                                                           2          10           2           4
                                                                           2          12           3           4
D...............................................................           2           2           0           2
                                                                           2           4           1           3
                                                                           2           6           2           4
                                                                           2           8           3           4
----------------------------------------------------------------------------------------------------------------
\1\ Batch sequence rejection not permitted for this number of batches.
\2\ Batch sequence acceptance not permitted for this number of batches.


                    Table IV--Recommended Format for Portable Air Compressor Noise Data Sheet
 
Test report number:............  ..................
Subject:
  Manufacturer:....................................  Model:.............  Serial No.:.......  ..................
  Rated speed:.................  Rpm:..............  Rated capacity:....  ..................  cfm (m\3\/in).
  Configuration identification:....................  Category             ..................  ..................
                                                      identification:.
  Portable air compressor identification No.:......  Build date:........  ..................  ..................
Test conditions:
  Manufacturer's test site identification and location:.....................................  ..................
  Reflecting plane composition:.............................................................  ..................
Operating speed as tested:
    Beginning of test..........  rpm
    End of test................  rpm
  Air pressure supplied:.......  psi (kg/cm\2\)      Ambient wind speed--
                                                      ----mph (km/hr).
  Actual flow rate:............  cfm (m\3\/min.)     Atmospheric
                                                      pressure------psi
                                                      (kg/cm\2\).
  Temperature:.................   [deg]F ( [deg]C)
Instrumentation:
  Microphone Manufacturer:.........................  Model No.:.........  Serial No.:.......  ..................
  Sound Level Meter Manufacturer:..................  Model No.:.........  Serial No.:.......  ..................
  Calibrator Manufacturer:.........................  Model No.:.........  Serial No.:.......  ..................

[[Page 106]]

 
  Other and Manufacturer:..........................  Model No.:.........  Serial No.:.......  ..................
Data:
 


--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         Location
                                                                ----------------------------------------------------------------------------------------
                                        Background sound level                                                                                  Average
       Sound levels (decibels)         at location 1 (decibels)                                                                                  sound
                                                                    1        2        3                4                        5                level
                                                                                                                                              (decibels)
--------------------------------------------------------------------------------------------------------------------------------------------------------
A-Weighted
--------------------------------------------------------------------------------------------------------------------------------------------------------
Tested by:.........................................................................................................  Date:..................  ..........
Reported by:.......................................................................................................  Date:..................  ..........
Supervisory personnel:....................................................................  Title:.................  .......................  ..........
                                                                 .......  .......  .......  Title:.................  .......................  ..........
--------------------------------------------------------------------------------------------------------------------------------------------------------



PART 205_TRANSPORTATION EQUIPMENT NOISE EMISSION CONTROLS--
Table of Contents



                      Subpart A_General Provisions

Sec.
205.1 General applicability.
205.2 Definitions.
205.3 Number and gender.
205.4 Inspection and monitoring.
205.5 Exemptions.
205.5-1 Testing exemption.
205.5-2 National security exemptions.
205.5-3 Export exemptions.

                    Subpart B_Medium and Heavy Trucks

205.50 Applicability.
205.51 Definitions.
205.52 Vehicle noise emission standards.
205.54 Test procedures.
205.54-1 Low speed sound emission test procedures.
205.54-2 Sound data acquisition system.
205.55 Requirements.
205.55-1 General requirements.
205.55-2 Compliance with standards.
205.55-3 Configuration identification.
205.55-4 Labeling-compliance.
205.55-5 Labeling-exterior. [Reserved]
205.56 Testing by the Administrator.
205.57 Selective enforcement auditing requirements.
205.57-1 Test request.
205.57-2 Test vehicle sample selection.
205.57-3 Test vehicle preparation.
205.57-4 Testing procedures.
205.57-5 Reporting of the test results.
205.57-6 Acceptance and rejection of batches.
205.57-7 Acceptance and rejection of batch sequence.
205.57-8 Continued testing.
205.57-9 Prohibition on distribution in commerce; manufacturer's remedy.
205.58 In-use requirements.
205.58-1 Warranty.
205.58-2 Tampering.
205.58-3 Instructions for maintenance, use and repair.
205.59 Recall of noncomplying vehicles.

Appendix I to Subpart B

Subpart C [Reserved]

                          Subpart D_Motorcycles

205.150 Applicability.
205.151 Definitions.
205.152 Noise emission standards.
205.153 Engine displacement.
205.154 Consideration of alternative test procedures.
205.155 Motorcycle class and manufacturer abbreviation.
205.156 [Reserved]
205.157 Requirements.
205.157-1 General requirements.
205.157-2 Compliance with standards.
205.157-3 Configuration identification.
205.158 Labeling requirements.
205.159 Testing by the Administrator.
205.160 Selective enforcement auditing (SEA) requirements.
205.160-1 Test request.
205.160-2 Test sample selection and preparation.
205.160-3 [Reserved]
205.160-4 Testing procedures.
205.160-5 Reporting of the test results.
205.160-6 Passing or failing under SEA.
205.160-7 Continued testing.
205.160-8 Prohibition of distribution in commerce; manufacturer's 
          remedy.
205.162 In-use requirements.
205.162-1 Warranty.
205.162-2 Tampering.
205.162-3 Instructions for maintenance, use, and repair.
205.163 Recall of noncomplying motorcycles; relabeling of mislabled 
          motorcycles.

Appendix I to Subparts D and E--Motorcycle Noise Emission Test 
          Procedures [Note]

[[Page 107]]

                  Subpart E_Motorcycle Exhaust Systems

205.164 Applicability.
205.165 Definitions.
205.166 Noise emission standards.
205.167 Consideration of alternative test procedures.
205.168 Requirements.
205.168-1 General requirements.
205.168-11 Order to cease distribution.
205.169 Labeling requirements.
205.170 Testing by the Administrator.
205.171 Selective enforcement auditing (SEA) requirements.
205.171-1 Test request.
205.171-2 Test exhaust system sample selection and preparation.
205.171-3 Test motorcycle sample selection.
205.171-6 Testing procedures.
205.171-7 Reporting of the test results.
205.171-8 Passing or failing under SEA.
205.171-9 Continued testing.
205.171-10 Prohibition on distribution in commerce; manufacturer's 
          remedy.
205.172 Maintenance of records; submittal of information.
205.173 In-use requirements.
205.173-1 Warranty.
205.173-2 Tampering.
205.173-3 Warning statement.
205.173-4 Information sheet.
205.174 Remedial orders.

Appendix I to Subparts D and E--Motorcycle Noise Emission Test 
          Procedures
Appendix II to Subpart E--Sampling Tables

    Authority: Secs. 6, 10, 11, 13, Pub. L. 92-574, 86 Stat. 1234 (42 
U.S.C. 4905, 4909, 4910, 4912).

    Source: 41 FR 15544, Apr. 13, 1976, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 205.1  General applicability.

    The provisions of this subpart are applicable to all products for 
which regulations have been published under this part and which are 
manufactured after the effective date of such regulations.



Sec. 205.2  Definitions.

    (a) As used in this subpart, all terms not defined herein shall have 
the meaning given them in the Act.
    (1) Act means the Noise Control Act of 1972 (Pub. L. 92-574, 86 
Stat. 1234).
    (2) Administrator means the Ad ministrator of the Environmental Pro 
tec tion Agency or his authorized rep re sen ta tive.
    (3) Agency means the United States Environmental Protection Agency.
    (4) Export exemption means an exemption from the prohibitions of 
section 10(a) (1), (2), (3), and (4) of the Act, granted by statute 
under section 10(b)(2) of the Act for the purpose of exporting regulated 
products.
    (5) National security exemption means an exemption from the 
prohibitions of section 10(a) (1), (2), (3), and (5) of the Act, which 
may be granted under section 10(b)(1) of the Act for the purpose of 
national security.
    (6) [Reserved]
    (7) Sound Level means 20 times the logarithm to base 10 of the ratio 
of pressure of a sound to the reference pressure. The reference pressure 
is 20 micropascals (20 micronewtons per square meter). NOTE: Unless 
otherwise explicitly stated, it is to be understood that the sound 
pressure is the effective (rms) sound pressure, per American National 
Standards Institute, Inc., 1430 Broadway, New York, New York 10018.
    (8) Sound Pressure Level means in decibels, 20 times the logarithm 
to the base 10 of the ratio of a sound pressure to the reference sound 
pressure of 20 micropascals (20 micronewtons per square meter). In the 
absence of any modifier, the level is understood to be that of a root-
mean-square pressure. The unit of any sound level is the decibel, having 
the unit symbol dB.
    (9) dB(A) means the standard abbreviation for A-weighted sound 
levels in decibels.
    (10) Highway means the streets, roads, and public ways in any State.
    (11) Fast Meter Response means that the fast dynamic response of the 
sound level meter shall be used. The fast dynamic response shall comply 
with the meter dynamic characteristics in paragraph 5.3 of the American 
National Standard Specification for Sound Level Meters, ANSI SI.4-1971. 
This publication is available from the American National Standards 
Institute, Inc., 1430 Broadway, New York, New York 10018.
    (12) Person means an individual, corporation, partnership, or 
association, and except as provided in sections 11(e) and 12(a) of the 
Act includes any officer, employee, department, agency or 
instrumentality of the United States, a State or any political 
subdivision of a State.

[[Page 108]]

    (13) Reasonable assistance means providing timely and unobstructed 
access to test products or products and records required by this part, 
and opportunity for copying such records or testing such test products.
    (14) Ultimate purchaser means the first person who in good faith 
purchases a product for purposes other than resale.
    (15) New product means (i) a product the equitable or legal title of 
which has never been transferred to an ultimate purchaser, or (ii) a 
product which is imported or offered for importation into the United 
States and which is manufactured after the effective date of a 
regulation under section 6 or 8 which would have been applicable to such 
product had it been manufactured in the United States.
    (16) Manufacturer means any person engaged in the manufacturing or 
assembling of new products, or the importing of new products for resale, 
or who acts for and is controlled by any such person in connection with 
the distribution of such products.
    (17) Commerce means trade, traffic, commerce, or transportation:
    (i) Between a place in a State and any place outside thereof, or
    (ii) Which affects trade, traffic, commerce, or transportation 
described in paragraph (a)(17)(i) of this section.
    (18) Distribute in commerce means sell in, offer for sale in, or 
introduce or deliver for introduction into, commerce.
    (19) State includes the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Trust 
Territory of the Pacific Islands.
    (20) Federal Agency means an ex ecutive agency (as defined in 
section 105 of title 5, United States Code) and includes the United 
States Postal Service.
    (21) Environmental noise means the intensity, duration, and the 
character of sounds from all sources.
    (22) Warranty means the warranty required by section 6(c)(1) of the 
Act.
    (23) Tampering means those acts prohibited by section 10(a)(2) of 
the Act.
    (24) Maintenance instructions or instructions means those 
instructions for maintenance, use, and repair, which the Administrator 
is authorized to require pursuant to section 6(c)(1) of the Act.
    (25) Type I Sound Level Meter means a sound level meter which meets 
the Type I requirements of ANSI SI.4-1972 specification for sound level 
meters. This publication is available from the American National 
Standards Institute, Inc., 1430 Broadway, New York, New York 10018.
    (26) Testing exemption means an exemption from the prohibitions of 
section 10(a) (1), (2), (3), and (5) of the Act, which may be granted 
under section 10(b)(1) of the Act for the purpose of research, 
investigations, studies, demonstrations, or training, but not including 
national security.
    (27) Product means any transportation equipment for which 
regulations have been promulgated under this part and includes ``test 
product.''
    (28) Test product means any product that is required to be tested 
pursuant to this part.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61457, Dec. 5, 1977]



Sec. 205.3  Number and gender.

    As used in this part, words in the singular shall be deemed to 
import the plural, and words in the masculine gender shall be deemed to 
import the feminine and vice versa, as the case may require.



Sec. 205.4  Inspection and monitoring.

    (a) Any inspection or monitoring activities conducted under this 
section shall be for the purpose of determining (1) whether test 
products are being selected and prepared for testing in accordance with 
the provisions of these regulations, (2) whether test product testing is 
being conducted in accordance with these regulations, and (3) whether 
products being produced for distribution into commerce comply with these 
regulations.
    (b) The Director, Noise Enforcement Division, may request that a 
manufacturer subject to this part admit an EPA Enforcement Officer 
during operating hours to any of the following:
    (1) Any facility or site where any product to be distributed into 
commerce is manufactured, assembled, or stored;

[[Page 109]]

    (2) Any facility or site where any tests conducted pursuant to this 
part or any procedures or activities connected with such tests are or 
were performed; and
    (3) Any facility or site where any test product is present.
    (c)(1) An EPA Enforcement Officer, once admitted to a facility or 
site, will not be authorized to do more than:
    (i) To inspect and monitor test product manufacture and assembly, 
selection, storage, preconditioning, noise emission testing, and 
maintenance, and to verify correlation or calibration of test equipment;
    (ii) To inspect products prior to their distribution in commerce:
    (iii) To inspect and photograph any part or aspect of any such 
product and any component used in the assembly thereof that are 
reasonably related to the purpose of his entry.
    (iv) [Reserved]
    (v) To obtain from those in charge of the facility or site such 
reasonable assistance as he may request to enable him to carry out any 
proper function listed in this section.
    (2) [Reserved]
    (3) The provisions of this section apply whether the facility or 
site is owned or controlled by the manufacturer or by one who acts for 
the manufacturer.
    (d) For purposes of this section:
    (1) An ``EPA Enforcement Officer'' is an employee of the EPA Office 
of Enforcement who displays upon arrival at a facility or site the 
credentials identifying him as such an employee and a letter signed by 
the Director, Noise Enforcement Division designating him to make the 
inspection.
    (2) Where test product storage areas or facilities are concerned, 
``operating hours'' shall mean all times during which personnel other 
than custodial personnel are at work in the vicinity of the area or 
facility and have access to it.
    (3) Where facilities or areas other than those covered by paragraph 
(d)(2) of this section are concerned, ``operating hours'' shall mean all 
times during which product manufacture or assembly is in operation or 
all times during which product testing and maintenance is taking place 
and/or production or compilation of records is taking place, or any 
other procedure or activity related to selective enforcement audit 
testing or product manufacture or assembly being carried out in a 
facility.
    (e) The manufacturer shall admit to a facility or site an EPA 
Enforcement Officer who presents a warrant authorizing entry. In the 
absence of such warrant, entry to any facility or site under this 
section will be only upon the consent of the manufacturer.
    (1) It is not a violation of this regulation or the Act for any 
person to refuse entry without a warrant.
    (2) The Administrator or his designee may proceed ex parte to obtain 
a warrant whether or not the manufacturer has refused entry.

[41 FR 15544, Apr. 13, 1976, as amended at 43 FR 27990, June 28, 1978; 
47 FR 57713, Dec. 28, 1982]



Sec. 205.5  Exemptions.



Sec. 205.5-1  Testing exemption.

    (a) A new product intended to be used solely for research, 
investigations, studies, demonstrations or training, and so labeled or 
marked on the outside of the container and on the product itself, shall 
be exempt from the prohibitions of section 10(a)(1), (2), (3), and (5) 
of the Act.
    (b) No request for a testing exemption is required.
    (c) For purposes of section 11(d) of the Act, any testing exemption 
shall be void ab initio with respect to each new product, originally 
intended for research, investigations, studies, demonstrations, or 
training, but distributed in commerce for other uses.

[47 FR 57713, Dec. 28, 1982]



Sec. 205.5-2  National security exemptions.

    (a) A new product which is produced to conform with specifications 
developed by a national security agency, and so labeled or marked on the 
outside of the container and on the product itself, shall be exempt from 
the prohibitions of section 10(a)(1), (2), (3), and (5) of the Act.
    (b) No request for a national security exemption is required.

[[Page 110]]

    (c) For purposes of section 11(d) of the Act, any national security 
exemption shall be void ab initio with respect to each new product, 
originally intended to be produced to conform with specifications 
developed by a national security agency, but distributed in commerce for 
other uses.
    (d) Any manufacturer or person subject to the liabilities of section 
11(a) with respect to any product originally intended for a national 
security agency, but distributed in commerce for use in any State, may 
be excluded from the application of section 11(a) with respect to such 
product based upon a showing that such manufacturer:
    (1) Had no knowledge of such product being distributed in commerce 
for use in any state; and
    (2) Made reasonable effort to ensure that such products would not be 
distributed in commerce for use in any State. Such reasonable efforts 
would include investigation, prior dealings, contract provisions, etc.

[47 FR 57714, Dec. 28, 1982]



Sec. 205.5-3  Export exemptions.

    (a) A new product intended solely for export, and so labeled or 
marked on the outside of the container and on the product itself, shall 
be exempt from the prohibitions of section 10(a), (1), (2), (3), and (4) 
of the Act.
    (b) No request for an export exemption is required.
    (c) For purposes of section 11(d) of the Noise Control Act, the 
Administrator may consider any export exemption under section 10(b)(2) 
as void ab initio with respect to each new product intended solely for 
export which is distributed in commerce for use in any State.
    (d) In deciding whether to institute proceedings against a 
manufacturer pursuant to section 11(d)(1) of the Act with respect to any 
product originally intended solely for export but distributed in 
commerce for use in any state, the Administrator will consider:
    (1) Whether the manufacturer had knowledge that such product would 
be distributed in commerce for use in any state; and
    (2) Whether the manufacturer made reasonable efforts to ensure that 
such product would not be distributed in commerce for use in any state. 
Such reasonable efforts would include consideration of prior dealings 
with any person which resulted in introduction into commerce of a 
product manufactured for export only, investigation of prior instances 
known to the manufacturer of introduction into commerce of a product 
manufactured for export only, and contract provisions which minimize the 
probability of introduction into commerce of a product manufactured for 
export only.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61457, Dec. 5, 1977. 
Redesignated at 47 FR 57714, Dec. 28, 1982]



                    Subpart B_Medium and Heavy Trucks



Sec. 205.50  Applicability.

    (a) Except as otherwise provided for in these regulations the 
provisions of this subpart apply to any vehicle which has a gross 
vehicle weight rating (GVWR) in excess of 10,000 pounds, which is 
capable of transportation of property on a highway or street and which 
meets the definition of the term ``new product'' in the Act.
    (b) The provisions of the subpart do not apply to highway, city, and 
school buses or to special purpose equipment which may be located on or 
operated from vehicles. Tests performed on vehicles containing such 
equipment may be carried out with the special purpose equipment in 
nonoperating condition. For purposes of this regulation special purpose 
equipment includes, but is not limited to, construction equipment, snow 
plows, garbage compactors and refrigeration equipment.



Sec. 205.51  Definitions.

    (a) As used in this subpart, all terms not defined herein shall have 
the meaning given them in the Act or in other subparts of this part.
    (1) Acceptable Quality Level means the maximum percentage of failing 
vehicles that for purposes of sampling inspection, can be considered 
satisfactory as a process average.
    (2) Acceptance of a batch means that the number of noncomplying 
vehicles in the batch sample is less than or

[[Page 111]]

equal to the acceptance number as determined by the appropriate sampling 
plan.
    (3) Batch means the collection of vehicles of the same category, 
configuration or subgroup thereof as designated by the Administrator in 
a test request, from which a batch sample is to be drawn, and inspected 
to determine conformance with the acceptability criteria.
    (4) Batch size means the number as designated by the Administrator 
in the test request of vehicles of the same category or configuration in 
a batch.
    (5) Batch sample means the collection of vehicles of the same 
category, configuration or subgroup thereof which are drawn from a batch 
and from which test samples are drawn.
    (6) Batch sample size means the number of vehicles of the same 
category or configuration in a batch sample.
    (7) Cab over axle or cab over engine means the cab which contains 
the operator/passenger compartment is directly above the engine and 
front axle and the entire cab can be tilted forward to permit access to 
the engine compartment.
    (8) Category means a group of vehicle configurations which are 
identical in all material aspects with respect to the parameters listed 
in Sec. 205.55-2.
    (9) Configuration means the basic classification unit of a 
manufacturer's product line and is comprised of all vehicle designs, 
models or series which are identical in material aspects with respect to 
the parameters listed in Sec. 205.55-3.
    (10) Acceptance of a Batch sequence means that the number of 
rejected batches in the sequence is less than or equal to the acceptance 
number as determined by the appropriate sampling plan.
    (11) Rejection of a Batch sequence means that the number of rejected 
batches in a sequence is equal to or greater than the rejection number 
as determined by the appropriate sampling plan.
    (12) Capable of Transportation of Property on a street or highway 
means that the vehicle:
    (i) Is self propelled and is capable of transporting any material or 
fixed apparatus, or is capable of drawing a trailer or semi-trailer;
    (ii) Is capable of maintaining a cruising speed of at least 25 mph 
over level, paved surface;
    (iii) Is equipped or can readily be equipped with features 
customarily associated with practical street or highway use, such 
features including but not being limited to: A reverse gear and a 
differential, fifth wheel, cargo platform or cargo enclosure, and
    (iv) Does not exhibit features which render its use on a street or 
highway impractical, or highly unlikely, such features including, but 
not being limited to, tracked road means, an inordinate size or features 
ordinarily associated with combat or tactical vehicles.
    (13) Exhaust System means the system comprised of a combination of 
components which provides for enclosed flow of exhaust gas from engine 
exhaust port to the atmosphere.
    (14) Gross Combination Weight Rating (GCWR) means the value 
specified by the manufacturer as the loaded weight of a combination 
vehicle.
    (15) Gross Vehicle Weight Rating (GVWR) means the value specified by 
the manufacturer as the loaded weight of a single vehicle.
    (16) Inspection Criteria means the rejection and acceptance numbers 
associated with a particular sampling plan.
    (17) Model year means the manufacturer's annual production period 
which includes January 1 of such calendar year: Provided, that if the 
manufacturer has no annual production period, the term ``model year'' 
shall mean the calendar year.
    (18) Noise Control System includes any vehicle part, component or 
system the primary purpose of which is to control or cause the reduction 
of noise emitted from a vehicle.
    (19) Noise emission test means a test conducted pursuant to the 
measurement methodology specified in this subpart.
    (20) [Reserved]
    (21) Rejection of a batch means the number of noncomplying vehicles 
in the batch sample is greater than or equal to the rejection number as 
determined by the appropriate sampling plan.
    (22) Shift means the regular pro duction work period for one group 
of workers.

[[Page 112]]

    (23) Test sample means the collection of vehicles from the same 
category, configuration or subgroup thereof which is drawn from the 
batch sample and which will receive noise emissions tests.
    (24) Failing vehicle means that the measured emissions of the 
vehicle, when measured in accordance with the applicable procedure, 
exceeds the applicable standard.
    (25) Acceptance of a vehicle means that the measured emissions of 
the vehicle when measured in accordance with the applicable procedure, 
conforms to the applicable standard.
    (26) Tampering means those acts prohibited by section 10(a)(2) of 
the Act.
    (27) Test sample size means the number of vehicles of the same 
category or configuration in a test sample.
    (28) Test vehicle means a vehicle selected and used to demonstrate 
compliance with the applicable noise emission standards.
    (29) Vehicle means any motor vehicle, machine or tractor, which is 
propelled by mechanical power and capable of transportation of property 
on a street or highway and which has a gross vehicle weight rating in 
excess of 10,000 pounds and a partially or fully enclosed operator's 
compartment.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61456, 61458, Dec. 5, 
1977; 47 FR 57714, Dec. 28, 1982]



Sec. 205.52  Vehicle noise emission standards.

    (a) Low Speed Noise Emission Standard. Vehicles which are 
manufactured after the following effective dates shall be designed, 
built and equipped so that they will not produce sound emissions in 
excess of the levels indicated.

------------------------------------------------------------------------
                       Effective date                           Level
------------------------------------------------------------------------
(i) January 1, 1979........................................      83 dBA.
(ii) January 1, 1988.......................................      80 dBA.
------------------------------------------------------------------------

    (b) The standards set forth in paragraph (a) of this section refer 
to the sound emissions as measured in accordance with the procedures 
prescribed in Sec. 205.54-1,2.
    (c) Every manufacturer of a new motor vehicle subject to the 
standards prescribed in this paragraph shall, prior to taking any of the 
actions specified in section 10(a)(1) of the Act, comply with the other 
provisions of this subpart or Subpart A, as applicable.
    (d) In-Use Standard. [Reserved]
    (e) Low Noise Emission Product. [Reserved]

(Sec. 6, Pub. L. 92-574, 86 Stat. 1237 (42 U.S.C. 4905, 4906))

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61456, Dec. 5, 1977; 51 
FR 852, Jan. 8, 1986]



Sec. 205.54  Test procedures.

    The procedures described in this and subsequent sections will be the 
test program to determine the conformity of vehicles with the standards 
set forth in Sec. 205.52 for the purposes of Selective Enforcement 
Auditing and Testing by the Administrator.

[47 FR 57714, Dec. 28, 1982]



Sec. 205.54-1  Low speed sound emission test procedures.

    (a) Instrumentation. The following instrumentation shall be used, 
where applicable.
    (1) A sound level meter which meets the Type 1 requirements of ANSI 
S1.4-1971, Specification for Sound Level Meters, or a sound level meter 
may be used with a magnetic tape recorder and/or a graphic level 
recorder or indicating meter, providing the system meets the 
requirements of Sec. 205.54-2.
    (2) A sound level calibrator. The calibrator shall produce a sound 
pressure level, at the microphone diaphragm, that is known to within an 
accuracy of 0.5 dB. The calibrator shall be 
checked annually to verify that its output has not changed.
    (3) An engine-speed tachometer which is accurate within 2 percent of meter reading.
    (4) An anemometer or other device for measurement of ambient wind 
speed accurate within 10 percent.
    (5) A thermometer for measurement of ambient temperature accurate 
within 1 C.
    (6) A barometer for measurement of ambient pressure accurate within 
1 percent.
    (b)(1) The test site shall be such that the truck radiates sound 
into a free field over a reflecting plane. This condition may be 
considered fulfilled if the test site consists of an open space free

[[Page 113]]

of large reflecting surfaces, such as parked vehicles, signboards, 
buildings or hillsides, located within 100 feet (30.4 meters) of either 
the vehicle path or the microphone.
    (2) The microphone shall be located 50 feet 4 
in. (15.2 0.1 meter) from the centerline of truck 
travel and 4 feet 4 in. (1.2 0.1 meters) above the ground plane. The microphone point 
is defined as the point of intersection of the vehicle path and the 
normal to the vehicle path drawn from the microphone. The microphone 
shall be oriented in a fixed position to minimize the deviation from the 
flattest system response over the frequency range 100 Hz to 10 kHz for a 
vehicle traversing from the acceleration point through the end zone.

The microphone shall be oriented with respect to the source so that the 
sound strikes the diaphragm at the angle for which the microphone was 
calibrated to have the flattest frequency response characteristic over 
the frequency range 100 Hz to 10 kHz.
    (3) An acceleration point shall be established on the vehicle path 
50 feet (15 m) before the microphone point.
    (4) An end point shall be established on the vehicle path 100 feet 
(30 m) from the acceleration point and 50 feet (15 m) from the 
microphone point.
    (5) The end zone is the last 40 feet (12 m) of vehicle path prior to 
the end point.
    (6) The measurement area shall be the triangular paved (concrete or 
sealed asphalt) area formed by the acceleration point, the end point, 
and the microphone location.
    (7) The reference point on the vehicle, to indicate when the vehicle 
is at any of the points on the vehicle path, shall be the front of the 
vehicle except as follows:
    (i) If the horizontal distance from the front of the vehicle to the 
exhaust outlet is more than 200 inches (5.1 meters), tests shall be run 
using both the front and rear of the vehicle as reference points.
    (ii) If the engine is located rearward to the center of the chassis, 
the rear of the vehicle shall be used as the reference point.
    (8) The plane containing the vehicle path and the microphone 
location (plane ABCDE in Figure 1) shall be flat within 2 inches (.05 meters).
    (9) Measurements shall not be made when the road surface is wet, 
covered with snow, or during precipitation.
    (10) Bystanders have an appreciable influence on sound level meter 
readings when they are in the vicinity of the vehicle or microphone; 
therefore not more than one person, other than the observer reading the 
meter, shall be within 50 feet (15.2 meters) of the vehicle path or 
instrument and the person shall be directly behind the observer reading 
the meter, on a line through the microphone and observer. To minimize 
the effect of the observer and the container of the sound level meter 
electronics on the measurements, cable should be used between the 
microphone and the sound level meter. No observer shall be located 
within 1 m in any direction of the microphone location.
    (11) The maximum A-weighted fast response sound level observed at 
the test site immediately before and after the test shall be at least 10 
dB below the regulated level.
    (12) The road surface within the test site upon which the vehicle 
travels, and, at a minimum, the measurements area (BCD in figure 205.1) 
shall be smooth concrete or smooth sealed asphalt, free of extraneous 
material such as gravel.

[[Page 114]]

[GRAPHIC] [TIFF OMITTED] TC01FE92.052

    (13) Vehicles with diesel engines shall be tested using Number 1D or 
Number 2D diesel fuel possessing a cetane rating from 42 to 50 
inclusive.
    (14) Vehicles with gasoline engines shall use the grade of gasoline 
recommended by the manufacturer for use by the purchaser.
    (15) Vehicles equipped with thermo- statically controlled radiator 
fans may be tested with the fan not operating.
    (c) Procedures--(1) Vehicle operation for vehicles with standard 
transmissions. Full throttle acceleration and closed throttle 
deceleration tests are to be used. A beginning engine speed and proper 
gear ratio must be determined for use during measurements. Closed 
throttle deceleration tests are required only for those vehicles 
equipped with an engine brake.
    (i) Select the highest rear axle and/or transmission gear (``highest 
gear'' is used in the usual sense; it is synonymous to the lowest 
numerical ratio) and an initial vehicle speed such that at wide-open 
throttle the vehicle will accelerate from the acceleration point.
    (a) Starting at no more than two-thirds (66 percent) of maximum 
rated or of governed engine speed.
    (b) Reaching maximum rated or governed engine speed within the end 
zone.
    (c) Without exceeding 35 mph (56 k/h) before reaching the end point.
    (1) Should maximum rated or governed rpm be attained before reaching 
the end zone, decrease the approach rpm in 100 rpm increments until 
maximum rated or governed rpm is attained within the end zone.
    (2) Should maximum rated or governed rpm not be attained until 
beyond the end zone, select the next lower gear until maximum rated or 
governed rpm is attained within the end zone.
    (3) Should the lowest gear still result in reaching maximum rated or 
governed rpm beyond the permissible end zone, unload the vehicle and/or 
increase the approach rpm in 100 rpm increments until the maximum rated 
or

[[Page 115]]

governed rpm is reached within the end zone.
    (ii) For the acceleration test, approach the acceleration point 
using the engine speed and gear ratio selected in paragraph (c)(1) of 
this section and at the acceleration point rapidly establish wide-open 
throttle. The vehicle reference shall be as indicated in paragraph 
(b)(7) of this section. Acceleration shall continue until maximum rated 
or governed engine speed is reached.
    (iii) Wheel slip which affects maximum sound level must be avoided.
    (2) Vehicle operation for vehicles with automatic transmissions. 
Full throttle acceleration and closed throttle deceleration tests are to 
be used. Closed throttle deceleration tests are required only for those 
vehicles equipped with an engine brake.
    (i) Select the highest gear axle and/or transmission gear (highest 
gear is used in the usual sense; it is synonymous to the lowest 
numerical ratio) in which no up or down shifting will occur under any 
operational conditions of the vehicle during the test run. Also, select 
an initial vehicle speed such that at wide-open throttle the vehicle 
will accelerate from the acceleration point.
    (a) Starting at two-thirds (66 percent) of maximum rated or of 
governed engine speed.
    (b) Reaching maximum rated or governed engine speed within the end 
zone.
    (c) Without exceeding 35 mph (56 k/h) before reaching the end point.
    (1) Should maximum rated or governed rpm be attained before reaching 
the end zone, decrease the approach rpm in 100 rpm increments until 
maximum rated or governed rpm is attained within the end zone.
    (2) Should maximum rated or governed rpm not be attained until 
beyond the end zone, select the next lower gear until maximum rated or 
governed rpm is attained within the end zone.
    (3) Should the lowest gear still result in reaching maximum rated or 
governed rpm beyond the permissible end zone, unload the vehicle and/or 
increase the approach rpm in 100 rpm increments until the maximum rated 
or governed rpm is reached within the end zone, notwithstanding that 
approach engine speed may now exceed two-thirds of maximum rated or of 
full load governed engine speed.
    (4) Should the maximum rated or governed rpm still be attained 
before entering the end zone, and the engine rpm during approach cannot 
be further lowered, begin acceleration at a point 10 feet closer to the 
beginning of the end zone. The approach rpm to be used is to be that rpm 
used prior to the moving of the acceleration point 10 feet closer to the 
beginning of the end zone.
    (5) Should the maximum rated or governed rpm still be attained 
before entering the end zone, repeat the instructions in paragraph 
(c)(2)(i)(c)(4) of this section until maximum rated or governed rpm is 
attained within the end zone.
    (ii) For the acceleration test, approach the acceleration point 
using the engine speed and gear ratio selected in paragraph (c)(2)(i) of 
this section and at the acceleration point rapidly establish wide-open 
throttle. The vehicle reference shall be as indicated in paragraph 
(b)(7) of this section. Acceleration shall continue until maximum rated 
or governed engine speed is reached.
    (iii) Wheel slip which affects maximum sound level must be avoided.
    (3) Measurements. (i) The meter shall be set for ``fast response'' 
and the A-weighted network.
    (ii) The meter shall be observed during the period while the vehicle 
is accelerating or decelerating. The applicable reading shall be the 
highest sound level obtained for the run. The observer is cautioned to 
rerun the test if unrelated peaks should occur due to extraneous ambient 
noises. Readings shall be taken on both sides of the vehicle.
    (iii) The sound level associated with a side shall be the average of 
the first two pass-by measurements for that side, if they are within 2 
dB(A) of each other. Average of measurements on each side shall be 
computed separately. If the first two measurements for a given side 
differ by more than 2 dB(A), two additional measurements shall be made 
on each side, and the average of the two highest measurements on each 
side, within 2 dB(A) of each other, shall be taken as the measured 
vehicle sound level for that side. The reported vehicle

[[Page 116]]

sound level shall be the higher of the two averages.
    (d) General requirements. (1) Measurements shall be made only when 
wind velocity is below 12 mph (19 km/hr).
    (2) Proper usage of all test instrumentation is essential to obtain 
valid measurements. Operating manuals or other literature furnished by 
the instrument manufacturer shall be referred to for both recommended 
operation of the instrument and precautions to be observed. Specific 
items to be adequately considered are:
    (i) The effects of ambient weather conditions on the performance of 
the instruments (for example, temperature, humidity, and barometric 
pressure).
    (ii) Proper signal levels, terminat ing impedances, and cable 
lengths on multi-instrument measurement systems.
    (iii) Proper acoustical calibration procedure to include the 
influence of extension cables, etc. Field calibration shall be made 
immediately before and after each test sequence. Internal calibration 
means is acceptable for field use, provided that external calibration is 
accomplished immediately before or after field use.
    (3)(i) A complete calibration of the instrumentation and external 
acoustical calibrator over the entire frequency range of interest shall 
be performed at least annually and as frequently as necessary during the 
yearly period to insure compliance with the standards cited in American 
National Standard S1.4-1971 ``Specifications for Sound Level Meters'' 
for a Type 1 instrument over the frequency range 50 Hz-10,000 Hz.
    (ii) If calibration devices are utilized which are not independent 
of ambient pressure (e.g., a piston-phone) corrections must be made for 
barometric or altimetric changes according to the recommendation of the 
instrument manufacturer.
    (4) The truck shall be brought to a temperature within its normal 
operating temperature range prior to commencement of testing. During 
testing appropriate caution shall be taken to maintain the engine 
temperatures within such normal operating range.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 11836, Mar. 1, 1977; 42 
FR 61456, Dec. 5, 1977]



Sec. 205.54-2  Sound data acquisition system.

    (a) Systems employing tape recorders and graphic level recorders may 
be established as equivalent to a Type I--ANSI S1.4-1971 sound level 
meter for use in determining compliance with this regulation by meeting 
the requirements of this section (Sec. 205.54-2(b)). This sound data 
acquisition system qualification procedure is based primarily on ANSI 
S6.1-1973.
    (1) Performance requirements--(i) System frequency response. It is 
required that the overall steady-state frequency response of the data 
acquisition system shall be within the tolerances prescribed in Table 
205.1 when measured in accordance with section (2). The tolerances in 
Table 205.1 are applicable to either flat or A-weighted response. (See 
paragraph (a)(3)(iii) of this section.)
    (ii) Detector response. To ensure that a (true) rms indication is 
provided, the difference between the level indicated for a 1000 Hz 
sinusoidal signal equivalent to a sound level of 86 dB (rms) and the 
level indicated for an octave band of random noise of equal energy as 
the sinusoidal signal centered at 1000 Hz shall be no greater than 0.5 
dB. A true rms voltmeter shall be used to determine equivalence of two 
input signals.
    (iii) Indicating meter. If an indicating meter is used to obtain 
sound levels or band pressure levels, it must meet the requirements of 
paragraphs (a)(1)(ii) and (vi)(B) of this section and the following.

                    Table 205.1--System Response Data
------------------------------------------------------------------------
                       A-weighted            Tolerance (decibels)
  Freq. (hertz)    response (Re-1000 -----------------------------------
                        Hz, dB)            Plus--            Minus--
------------------------------------------------------------------------
         31.5              -39.4                1.5               1.5
         40.0              -34.6                1.5               1.5
         50.0              -30.2                1.0               1.0
         63.0              -26.2                1.0               1.0
         80.0              -22.5                1.0               1.0
        100.0              -19.1                1.0               1.0
        125.0              -16.1                1.0               1.0
        160.0              -13.4                1.0               1.0
        200.0              -10.9                1.0               1.0
        250.0               -8.6                1.0               1.0

[[Page 117]]

 
        315.0               -6.6                1.0               1.0
        400.0               -4.8                1.0               1.0
        500.0               -3.2                1.0               1.0
        630.0               -1.9                1.0               1.0
        800.0                -.8                1.0               1.0
      1,000.0                  0                1.0               1.0
      1,250.0                 .6                1.0               1.0
      1,600.0                1.0                1.0               1.0
      2,000.0                1.2                1.0               1.0
      2,500.0                1.3                1.0               1.0
      3,150.0                1.2                1.0               1.0
      4,000.0                1.0                1.0               1.0
      5,000.0                 .5                1.5               2.0
      6,300.0                -.1                1.5               2.0
      8,000.0               -1.1                1.5               3.0
     10,000.0               -2.5                2.0               4.0
     12,500.0               -4.3                3.0               6.0
------------------------------------------------------------------------

    (A) The scale shall be graduated in 1 dB steps.
    (B) No scale indication shall be more than 0.2 dB different from the 
true value of the signal when an input signal equivalent to 86 dB sound 
level indicates correctly.
    (C) Maximum indication for an input signal of 1000 Hz tone burst of 
0.2 sec duration shall be within the range of -2 to 0 dB with respect to 
the steady-state indication for a 1000 Hz tone equivalent to 86 dB sound 
level.
    (iv) Microphone. If microphone is used which has not been provided 
as a component of a precision sound level meter, it must be determined 
to meet the microphone characteristics described in IEC Publication 179, 
Precision Sound Level Meters.
    (v) Magnetic tape recorders. No requirements are described in this 
document pertaining to tape recorders, except for frequency response. 
Generally, recorders of adequate quality to provide the frequency 
response performance required will also meet other minimum requirements 
for distortion, signal-to-noise ratio, etc.
    (vi) Graphic level recorder dynamic response. When using a graphic 
level recorder, it is necessary to select pen response settings such 
that the readings obtained are statistically equivalent to those 
obtained by directly reading a meter which meets the ``fast'' dynamic 
requirement of a precision sound level meter indicating meter system for 
the range of vehicles to be tested. To ensure statistical equivalence, 
at least 30 comparative observations of real test data shall be made and 
the average of the absolute value of the differences observed shall be 
less than 0.5 dB. The settings described in this paragraph likely assure 
appropriate dynamic response; however, different settings may be 
selected on the basis of the above requirement.
    (A) Use a pen writing speed of nominally 60-100 dB/sec. If 
adjustable, low frequency response should be limited to about 20 Hz.
    (B) Indicated overshoot for a suddenly applied 1000 Hz sinusoidal 
signal equivalent to 86 dB sound level shall be no more than 1.1 dB and 
no less than 0.1 dB.
    (2) Frequency response qualification procedure. (i) Typical noise 
measurement and analysis configurations are shown in Figures 205.2 
through 205.4. The qualification procedure described herein duplicates 
these configurations, but with the microphone replaced by an electronic 
sinewave oscillator. Caution should be exercised when connecting an 
oscillator to the input of a sound level meter to ensure, perhaps by 
using a resistive voltage divider network, that the input is not 
overloaded (see Sec. 205.54-2(a)(2)(ii)).

[[Page 118]]

[GRAPHIC] [TIFF OMITTED] TC01FE92.053

    (ii) Calibrate the oscillator to be used by measuring its output 
relative to the voltage which is equivalent to 86 dB sound level at each 
of the 27 frequencies listed in Table 205.1 using an electronic 
voltmeter of known calibration. Record the result in voltage level in dB 
re voltage corresponding to 86 dB

[[Page 119]]

sound level at 1000 Hz. This will describe the frequency response 
characteristics of the oscillator.
    (iii) If a graphic level recorder is to be used, connect it to the 
oscillator output. If the oscillator and graphic level recorder can be 
synchronized, slowly sweep the frequency over the range of 31.5 to 
12,500 Hz, recording the oscillator output. If they cannot be 
synchronized, record oscillator output for signals at the 27 frequencies 
given in Table 205.1. The differences between the combined response thus 
obtained and the oscillator response obtained previously will describe 
the frequency response of the graphic level recorder.
    (iv) If visual observation of an indicating meter is to be used for 
obtaining data, the oscillator should be connected to the indicating 
meter input (such as the microphone input of a sound level meter) and 
the meter reading observed for a fixed oscillator output voltage setting 
for signals at the 27 frequencies given in Table 205.1.
    (v) To check a tape recorder, connect the instruments as shown in 
Figure 205.4. Using a 1000 Hz tone, adjust the oscillator output level 
to obtain a reading 15 dB below maximum record level. If the 
synchronized oscillator/graphic level recorder system is to be used for 
analysis, record an oscillator sweep over the range of 31.5 to 12,500 
Hz, using an appropriate tape recorder input attenuator setting. 
Alternatively, tape-record frequency tones at the 27 frequencies given 
in Table 205.1. Replay the tape recordings using the setup shown in 
Figure 205.3. Record the data on a graphic level recorder or through 
visual observation of the indicating meter. Subtract the oscillator 
frequency response in paragraph (b)(2) of this section from the response 
obtained through the record-playback sequence to obtain the record/
reproduce frequency response of the system except for the microphone.
    (vi) To obtain the overall system frequency response, add the 
manufacturer's microphone calibration data to the response just 
obtained. This may be the frequency response for the specific microphone 
to be used, including calibration tolerances. Alternatively, use the 
manufacturer's ``typical'' microphone response plus and minus the 
maximum deviation expected from ``typical'' including calibration 
tolerances. Use the microphone response curve which corresponds to the 
manner in which it is used in the field. It may be required to add a 
correction to the response curves provided to obtain field response; 
refer to the manufacturer's manual.
    (vii) Adjustment or repair of equipment may be required to obtain 
response within the requirements of paragraph (a) of this section. After 
any adjustments, the system shall be requalified according to paragraph 
(b) of this section.
    (3) General comments. (i) Calibrate tape recorders using the brand 
and type of magnetic tape used for actual data acquisition. Differences 
in tape can cause an appreciable variation in the recorder/reproduce 
frequency response characteristics of tape recorder.
    (ii) It shall be ensured that the instrumentation used will perform 
within specifications and applicable tolerances over the temperature, 
humidity, and other environmental variation ranges which may be 
encountered in vehicle noise measurement works.
    (iii) Qualification tests shall be performed using equipment 
(including cables) and recording and playback techniques identical with 
those used while recording vehicle noise. For example, if weighted sound 
level data are normally recorded use similar weighting and apply the 
tolerances of Table 205.1 to the weighting curve for comparison with 
record-playback curves. Precautions should also be taken to ensure that 
source and load impedances are appropriate to the device being tested. 
Other data acquisition systems may use any combination of microphones, 
sound level meters, amplifiers, tape recorders, graphic level recorders, 
or indicating meters. The same approach to qualifying such a system 
shall be taken as described in this document for the systems depicted in 
Figures 205.2, 205.3 and 205.4.
    (b) Systems other than those specified in Sec. Sec. 205.54-1(a) and 
205.54-2(a) may be used for establishing compliance with this 
regulation. In each case the system must yield sound levels which are 
equivalent to those produced by a sound level meter Type 1 ANSI S1.4-

[[Page 120]]

1971. The manufacturer bears the burden of demonstrating such 
equivalence.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61456, Dec. 5, 1977; 47 
FR 57714, Dec. 28, 1982]



Sec. 205.55  Requirements.



Sec. 205.55-1  General requirements.

    (a) Every new vehicle manufactured for distribution in commerce in 
the United States which is subject to the standards prescribed in this 
subpart and not exempted in accordance with Sec. 205.5:
    (1) Shall be labeled in accordance with the requirements of Sec. 
205.55-5 of this subpart.
    (2) Shall conform to the applicable noise emission standard 
established in Sec. 205.52 of this regulation.
    (b) The requirements of paragraph (a) apply to new products which 
conform to the definition of vehicles in these regulations and at the 
time such new products are assembled to that state of completeness in 
which the manufacturer distributes them in commerce.
    (c) Subsequent manufacturers of a new product which conforms to the 
definition of vehicle in these regulations when received by them from a 
prior manufacturer, need not fulfill the requirements of paragraph 
(a)(1) where such requirements have already been complied with by a 
prior manufacturer.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61456, Dec. 5, 1977; 47 
FR 57714, Dec. 28, 1982]



Sec. 205.55-2  Compliance with standards.

    (a)(1) Prior to distribution in commerce of vehicles of a specific 
configuration, the first manufactures of such vehicles must verify such 
configurations in accordance with the requirements of this subpart.
    (2) [Reserved]
    (3) At any time following receipt of notice under this section with 
respect to a configuration, the Administrator may require that the 
manufacturer ship test vehicles to the EPA test facility in order for 
the Administrator to perform the tests required for production 
verification.
    (b) The requirements for purposes of testing by the Administrator 
and selective enforcement auditing with regard to each vehicle 
configuration consist of:
    (1) Testing in accordance with Sec. 205.54 of a vehicle selected in 
accordance with Sec. 205.57-2, and
    (2) Compliance of the test vehicle with the applicable standard when 
tested in accordance with Sec. 205.54.
    (c)(1) In lieu of testing vehicles of every configuration as 
described in paragraph (b) of this section, the manufacturer may elect 
to verify the configuration based on representative testing, the 
requirements of which consist of:
    (i) Grouping configurations into a category where each category will 
be determined by a separate combination of at least the following 
parameters (a manufacturer may use more parameters):
    (a) Engine type.
    (1) Gasoline--two stroke cycle.
    (2) Gasoline--four stroke cycle.
    (3) Diesel--two stroke cycle.
    (4) Diesel--four stroke cycle.
    (5) Rotary--wankel.
    (6) Turbine.
    (7) Other.
    (b) Engine manufacturer.
    (c) Engine displacement.
    (d) Engine configuration (e.g., L-6, V-8, etc.).
    (e) Series (i.e., cab design) including but not limited to 
conventional, cab over engine, and cab forward.
    (ii) Identifying the configuration within each category which emits 
the highest sound pressure level (dBA) based on his best technical 
judgment and/or emission test data;
    (iii) Testing in accordance with Sec. 205.54 of a vehicle selected 
in accordance with Sec. 205.57-2 which must be a vehicle of the 
configuration which is identified pursuant to paragraph (c)(1)(ii) of 
this section as having the highest sound pressure level (estimated or 
actual) within the category; and
    (iv) Compliance of the test vehicle with applicable standards when 
tested in accordance with Sec. 205.54.
    (2) Where the requirements of paragraph (c)(1) are complied with, 
all those configurations contained within a category are considered 
represented by the tested vehicle.
    (3) Where the manufacturer tests a vehicle configuration which has 
not

[[Page 121]]

been determined as having the highest sound pressure level of a 
category, but all other requirements of paragraph (c)(1) of this section 
are complied with all those configurations contained with that category 
which are determined to have sound pressure levels no greater than the 
tested vehicle are considered to be represented by the tested vehicle, 
however, a manufacturer must for purposes of Testing by the 
Administrator and Selective Enforcement Auditing verify according to the 
requirements of paragraphs (b)(1) and/or (c)(1) of this section any 
configurations in the subject category which have a higher sound 
pressure level than the vehicle configuration tested.
    (d) [Reserved]
    (e) The manufacturer may, at his option, proceed with any of the 
following alternatives with respect to any vehicle determined not in 
compliance with applicable standards.
    (1) In the case of representative testing a new test vehicle from 
another configuration must be selected according to the requirements of 
paragraph (c) of this section, in order to verify the configurations 
represented by the non-compliant vehicle.
    (2) Modify the test vehicle and demonstrate by testing that it meets 
applicable standards. The manufacturer must modify all production 
vehicles of the same configuration in the same manner as the test 
vehicle before distribution into commerce.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61458, Dec. 5, 1977; 47 
FR 57714, Dec. 28, 1982; 48 FR 27040, June 13, 1983]



Sec. 205.55-3  Configuration identification.

    (a) A separate vehicle configuration shall be determined by each 
combination of the following parameters:
    (1) Exhaust system configuration. (i) Single vertical.
    (ii) Dual vertical.
    (iii) Single horizontal.
    (iv) Dual horizontal.
    (2) Air induction system (engine). (i) Natural.
    (ii) Turbocharged.
    (3) Fan. (i) Diameter.
    (ii) Drive.
    (a) Direct.
    (b) Thermostatic.
    (iii) Max fan rpm.
    (4) Engine manufacturer's horsepower rating.
    (5) Cab characteristic. (i) Sleeper.
    (ii) Non sleeper.
    (6) Category parameters listed in Sec. 205.55-2.



Sec. 205.55-4  Labeling-compliance.

    (a)(1) The manufacturer of any vehicle subject to the provisions of 
Sec. 205.52 shall, at the time of manufacture, affix a permanent, 
legible label, of the type and in the manner described below, containing 
the information hereinafter provided, to all such vehicles to be 
distributed in commerce. The labels shall be affixed in such a manner 
that they cannot be removed without destroying or defacing them, and 
shall not be affixed to any equipment which is easily detached from such 
vehicle.
    (2) A label shall be permanently attached, in a readily visible 
position, in the operator's compartment.
    (3) Labels for vehicles not manufactured solely for use outside the 
United States shall contain the following information lettered in the 
English language in block letters and numerals, which shall be of a 
color that contrasts with the background of the label:
    (i) The label heading: Vehicle Noise Emission Control Information;
    (ii) Full corporate name and trademark of manufacturer;
    (iii) Month and year of manufacture;
    (iv) The statement:

    This Vehicle Conforms to U.S. EPA Regulations for Noise Emission 
Applicable to Medium and Heavy Trucks.
    The following acts or the causing thereof by any person are 
prohibited by the Noise Control Act of 1972:
    (A) The removal or rendering inoperative, other than for purposes of 
maintenance, repair, or replacement, of any noise control device or 
element of design (listed in the owner's manual) incorporated into this 
vehicle in compliance with the Noise Control Act;
    (B) The use of this vehicle after such device or element of design 
has been removed or rendered inoperative.

    (b) Labels for vehicles manufactured solely for use outside the 
United States shall contain the words ``For Export Only.''

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61456, 61458, Dec. 5, 
1977. Redesignated at 47 FR 57715, Dec. 28, 1982]

[[Page 122]]



Sec. 205.55-5  Labeling-exterior. [Reserved]



Sec. 205.56  Testing by the Administrator.

    (a)(1) The Administrator may require that any vehicles to be tested 
pursuant to the Act be submitted to him, at such place and time as he 
may reasonably designate and in such quantity and for such time as he 
may reasonably require for the purpose of conducting tests in accordance 
with test procedures described in Sec. 205.54 to determine whether such 
vehicles or a manufacturer's test facility conform to applicable 
regulations. It is a condition of the requirements under this section 
that the manner in which the Administrator conducts such tests, the EPA 
test facility itself, and the test procedures he employs shall be based 
upon good engineering practice and meet or exceed the requirements of 
Sec. 205.54 of the regulations.
    (2) The Administrator may specify that he will conduct such testing 
at the manufacturer's facility, in which case instrumentation and 
equipment of the type required by these regulations shall be made 
available by the manufacturer for test operations. The Administrator may 
conduct such tests with his own equipment, which shall equal or exceed 
the performance specifications of the instrumentation or equipment 
specified by the Administrator in these regulations.
    (3) The manufacturer may observe tests conducted by the 
Administrator pursuant to this section on vehicles produced by such 
manufacturer and may copy the data accumulated from such tests. The 
manufacturer may inspect any such vehicles before and after testing by 
the Administrator.
    (b)(1) If, based on tests conducted by the Administrator or other 
relevant information, the Administrator determines that the test 
facility does not meet the requirements of Sec. 205.54-1 (a) and (b) he 
will notify the manufacturer in writing of his determination and the 
reasons therefor.
    (2) The manufacturer may at any time within 15 days after receipt of 
a notice issued under paragraph (b)(1) of this section request a hearing 
conducted in accordance with 5 U.S.C. 554 on the issue of whether his 
test facility was in conformance. Such notice will not take effect until 
15 days after receipt by the manufacturer, or if a hearing is requested 
under this paragraph, until adjudication by the hearing examiner.
    (3) After any notification issued under paragraph (b)(1) of this 
section has taken effect, no data thereafter derived from such test 
facility will be acceptable for purposes of this part.
    (4) The manufacturer may request in writing that the Administrator 
reconsider his determination under paragraph (b)(1) of this section 
based on data or information which indicates that changes have been made 
to the test facility and such changes have resolved the reasons for 
disqualification.
    (5) The Administrator will notify the manufacturer of his 
determination and an explanation of the reasons under lying it with 
regard to the re quali fi ca tion of the test facility with in 10 
working days after receipt of the manufacturer's request for re con sid 
era tion pursuant to paragraph (b)(4) of this section.
    (c)(1) The Administrator will assume all reasonable costs associated 
with shipment of vehicles to the place designated pursuant to paragraph 
(a) of this section except with respect to:
    (i) [Reserved]
    (ii) Testing of a reasonable number of vehicles for purposes of 
selective enforcement auditing under Sec. 205.57 or testing of smaller 
numbers of vehicles, if the manufacturer has failed to establish that 
there is a correlation between its test facility and the EPA test 
facility or the Administrator has reason to believe, and provides the 
manufacturer a statement of such reasons, that the vehicles to be tested 
would fail to meet the standard prescribed in this subpart if tested at 
the EPA test facility, but would meet such standard if tested at the 
manufacturer's test facility;
    (iii) Any testing performed during a period when a notice of 
nonconfor- mance of the manufacturer's test facility issued pursuant to 
paragraph (b) of this section is in effect;
    (iv) Any testing performed at place other than the manufacturer's 
facility as a result of the manufacturer's failure to permit the 
Administrator to

[[Page 123]]

conduct or monitor testing as required by this part.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61456, 61459, Dec. 5, 
1977; 47 FR 57715, Dec. 28, 1982]



Sec. 205.57  Selective enforcement auditing requirements.



Sec. 205.57-1  Test request.

    (a) The Administrator will request all testing under Sec. 205.57 by 
means of a test request addressed to the manufacturer.
    (1) Except as provided in paragraphs (a) (2) and (3) of this 
section, the Administrator will not issue to a manufacturer during any 
model year more test requests than a number determined by dividing the 
total number of vehicles subject to this regulation which the 
manufacturer projects he will produce during that model year by 25,000 
and rounding to the next higher whole number: Except, that the 
Administrator may issue one additional test request beyond the annual 
limit to any manufacturer for each time a batch sequence for any 
category, configuration or subgroup thereof of such manufacturer's 
production is rejected in accordance with Sec. 205.57-7.
    (2) Any test request issued against a category, configuration or 
subgroup thereof which the Administrator has reason to believe does not 
meet the standards specified in Sec. 205.52 will not be counted against 
the annual limit on test requests described in paragraph (a)(1) of this 
section. Any such request shall include a statement of the 
Administrator's reason for such belief.
    (3) Any test request under which testing is not completed will not 
be counted against the annual limit on test requests described in 
paragraph (a)(1) of this section.
    (b) The test request will be signed by the Assistant Administrator 
for Enforcement or his designee. The test request will be delivered by 
an EPA Enforcement Officer to the plant manager or other responsible 
official as designated by the manufacturer.
    (c) The test request will specify the vehicle category, 
configuration or subgroup thereof selected for testing, the batch from 
which sampling is to begin, the batch size, the manufacturer's plant or 
storage facility from which the vehicles must be selected, the time at 
which a vehicle must be selected. The test request will also provide for 
situations in which the selected configuration or category is 
unavailable for testing. The test request may include an alternative 
category or configuration selected for testing in the event that 
vehicles of the first specified category or configuration are not 
available for testing because the vehicles are not being manufactured at 
the specified plant and/or are not being manufactured during the 
specified time or not being stored at the specified plant or storage 
facility.
    (d) Any manufacturer shall, upon receipt of the test request, select 
and test a batch sample of vehicles from two consecutively produced 
batches of the vehicle category or configurations specified in the test 
request in accordance with these regulations and the conditions 
specified in the test request.
    (e)(1) Any testing conducted by the manufacturer pursuant to a test 
request shall be initiated within such period as is specified within the 
test request: Except, that such initiation may be delayed for increments 
of 24 hours or one business day where ambient test site weather 
conditions, or other conditions beyond the control of the manufacturer, 
in any 24-hour period do not permit testing: Provided, That these 
conditions for that period are recorded.
    (2) The manufacturer shall complete emission testing on a minimum of 
five vehicles per day unless otherwise provided for by the Administrator 
or unless ambient test site conditions only permit the testing of a 
lesser number: Provided, that ambient test site weather conditions for 
that period are recorded.
    (3) The manufacturer will be allowed 24 hours to ship vehicles from 
a batch sample from the assembly plant to the testing facility if the 
facility is not located at the plant or in close proximity to the plant: 
Except, that the Administrator may approve more time based upon a 
request by the manufacturer accompanied by a satisfactory justifi 
cation.
    (f) The Administrator may issue an order to the manufacturer to 
cease to distribute into commerce vehicles of a

[[Page 124]]

specified category or configuration being manufactured at a particular 
facility if:
    (1) The manufacturer refuses to comply with the provisions of a test 
request issued by the Administrator pursuant to this section; or
    (2) The manufacturer refuses to comply with any of the requirements 
of this section.
    (g) A cease-to-distribute order shall not be issued under paragraph 
(f) of this section if such refusal is caused by conditions and 
circumstances outside the control of the manufacturer which renders it 
impossible to comply with the provisions of a test request or any other 
requirements of this section. Such conditions and circumstances shall 
include, but are not limited to, any uncontrollable factors which result 
in the temporary unavailability of equipment and personnel needed to 
conduct the required tests, such as equipment break-down or failure or 
illness of personnel, but shall not include failure of the manufacturer 
to adequately plan for and provide the equipment and personnel needed to 
conduct the tests. The manufacturer will bear the burden of establishing 
the presence of the conditions and circumstances required by this 
paragraph.
    (h) Any such order shall be issued only after a notice and 
opportunity for a hearing.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61459, Dec. 5, 1977; 43 
FR 12326, Mar. 24, 1978]



Sec. 205.57-2  Test vehicle sample selection.

    (a) Vehicles comprising the batch sample which are required to be 
tested pursuant to a test request in accordance with this subpart will 
be selected in the manner specified in the test request from a batch of 
vehicles of the category or configuration specified in the test request. 
If the test request specifies that the vehicles comprising the batch 
sample must be selected randomly, the random selection will be achieved 
by sequentially numbering all of the vehicles in the batch and then 
using a table of random numbers to select the number of vehicles as 
specified in paragraph (c) of this section based on the batch size 
designated by the Administrator in the test request. An alternative 
random selection plan may be used by a manufacturer: Provided, That such 
a plan is approved by the Administrator. If the test request does not 
specify that test vehicles must be randomly selected, the manufacturer 
shall select test vehicles consecutively.
    (1) Should a situation arise in which the configuration to be tested 
consists of only vehicles with automatic transmissions, they shall be 
tested in accordance with Sec. 205.54-1(c)(2).
    (2) If the configuration to be tested consists of both automatic 
transmission and standard transmission vehicles, the test vehicle shall 
be a standard transmission vehicle unless the manufacturer has reason to 
believe that the automatic transmission vehicle emits a greater sound 
level.
    (b) The Acceptable Quality Level is 10 percent. The appropriate 
sampling plans associated with the desig nated AQL are contained in 
Appendix I, Table II.
    (c) The appropriate batch sample size will be determined by 
reference to Appendix I, Table I and II. A code letter is obtained from 
Table I based on the batch size designated by the Administrator in a 
test request. The batch sample size will be obtained from Table II. The 
batch sample size will be equal to the maximum cumulative sample size 
for the appropriate code letter obtained from Table I plus an additional 
10 percent rounded off to the next highest number.
    (d) If the test request specifies that vehicles comprising the batch 
sample must be selected randomly, individual vehicles comprising the 
test sample will be randomly selected from the batch sample using the 
same random selection plan as in paragraph (a) of this section. Test 
sample size will be determined by entering Table II.
    (e) The test vehicle of the category, configuration or subgroup 
thereof selected for testing shall have been assembled by the 
manufacturer for distribution in commerce using the manufacturer's 
normal production process in accordance with Sec. 205.55-5(a).
    (f) Unless otherwise indicated in the test request, the manufacturer 
will select the batch sample from the production batch, next scheduled 
after receipt

[[Page 125]]

of the test request, of the category or configuration specified in the 
test request.
    (g) Unless otherwise indicated in the test request, the manufacturer 
shall select the vehicles designated in the test request for testing.
    (h) At their discretion, EPA Enforcement Officers, rather than the 
manufacturer, may select the vehicles designated in the test request.
    (i) The manufacturer will keep on hand all vehicles in the batch 
sample until such time as the batch is accepted or rejected in 
accordance with Sec. 205.57-6: Except, that vehicles actually tested 
and found to be in conformance with these regulations need not be kept.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61459, Dec. 5, 1977; 47 
FR 57715, Dec. 28, 1982; 48 FR 27039, June 13, 1983]



Sec. 205.57-3  Test vehicle preparation.

    (a) Prior to the official test, the test vehicle selected in 
accordance with Sec. 205-57-2 shall not be prepared, tested, modified, 
adjusted, or maintained in any manner unless such adjustments, 
preparation, modification and/or tests are part of the manufacturer's 
prescribed manufacturing and inspection procedures, and are documented 
in the manufacturer's internal vehicle assembly and inspection 
procedures or unless such adjustments and/or tests are required or 
permitted under this subpart or are approved in advance by the 
Administrator. For purposes of this section, prescribed manufacturing 
and inspection procedures include quality control testing and assembly 
procedures normally performed by the manufacturer on like products 
during early production so long as the resulting testing is not biased 
by the procedure. In the case of imported products the manufacturer may 
perform adjustments, preparations, modification and/or tests normally 
performed at the port of entry by the manufacturer to prepare the 
vehicle for delivery to a dealer or customer.
    (b) Equipment or fixtures necessary to conduct the test may be 
installed on the vehicle: Provided, That such equipment or fixtures 
shall have no effect on the noise emissions of the vehicle, as 
determined by measurement method ology.
    (c) In the event of vehicle malfunction (i.e., failure to start, 
misfiring cylinder, etc.) the manufacturer may perform the maintenance 
that is necessary to enable the vehicle to operate in a normal manner.
    (d) No quality control, testing, assembly or selection procedures 
shall be used on the completed vehicle or any portion thereof, including 
parts and subassemblies, that will not normally be used during the 
production and assembly of all other vehicles of the category which will 
be distributed in commerce, unless such procedures are required or 
permitted under this subpart.

[47 FR 57715, Dec. 28, 1982; 48 FR 27039, June 13, 1983]



Sec. 205.57-4  Testing procedures.

    (a) The manufacturer shall conduct one valid test in accordance with 
the test procedures specified in Sec. 205.54 of this subpart for each 
vehicle selected for testing pursuant to this subpart.
    (b) No maintenance will be performed on test vehicles except as 
provided for by Sec. 205.57-3. In the event a vehicle is unable to 
complete the emission test, the manufacturer may replace the vehicle. 
Any replacement vehicle will be a production vehicle of the same 
configuration as the replaced vehicle. It will be randomly selected from 
the batch sample and will be subject to all the provisions of these 
regulations.



Sec. 205.57-5  Reporting of the test results.

    (a) Within 5 working days after completion of testing of all 
vehicles in a batch sample the manufacturer shall submit to the 
Administrator a final report which will include the information required 
by the test request in the format stipulated in the test request in 
addition to the following:
    (1) The name, location, and description of the manufacturer's 
emission test facilities which meet the specifications of Sec. 205.54 
and were utilized to conduct testing reported pursuant to this section: 
Except, that a test facility that has been described in a previous 
submission under this subpart need not again be described but must be 
identified as such.

[[Page 126]]

    (2) A description of the random vehicle selection method used, 
referencing any tables of random numbers that were used, name of the 
person in charge of the random number selection, if the vehicle test 
request specifies a random vehicle selection.
    (3) The following information for each noise emission test 
conducted,
    (i) The completed data sheet required by Sec. 205.54 for all noise 
emission tests including: For each invalid test, the reason for 
invalidation.
    (ii) A complete description of any modification, repair, 
preparation, main tenance, and/or testing which could affect the noise 
emissions of the vehicle and which was performed on the test vehicle but 
will not be performed on all other production vehicles.
    (iii) The reason for the replacement where a replacement vehicle was 
authorized by the Administrator, and, if any, the test results for the 
replaced vehicles.
    (4) A complete description of the sound data acquisition system if 
other than those specified in Sec. Sec. 205.54-1(a) and 205.54-2(a).
    (5) The following statement and endorsement:

    This report is submitted pursuant to section 6 and section 13 of the 
Noise Control Act of 1972. To the best of ------(company name) 
knowledge, all testing for which data are reported herein was conducted 
in strict conformance with applicable regulations under 40 CFR 205.1 et 
seq., all the data reported herein are a true and accurate 
representation of such testing and all other information reported herein 
is true and accurate. I am aware of the penalties associated with 
violations of the Noise Control Act of 1972 and the regulations 
thereunder.

                                             (authorized representative)

    (b) All information required to be forwarded to the Administrator 
pursuant to this section shall be addressed to Director, Noise 
Enforcement Division (EN-387), U.S. Environmental Protection Agency, 
Washington, DC 20460.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61459, Dec. 5, 1977; 43 
FR 12326, Mar. 24, 1978]



Sec. 205.57-6  Acceptance and rejection of batches.

    (a) The batch from which a batch sample is selected will be accepted 
or rejected based upon the number of failing vehicles in the batch 
sample. A sufficient number of test samples will be drawn from the batch 
sample until the cumulative number of failing vehicles is less than or 
equal to the acceptance number or greater than or equal to the rejection 
number appropriate for the cumulative number of vehicles tested. The 
acceptance and rejection numbers listed in Appendix I, Table II at the 
appropriate code letter obtained according to Sec. 205.57-2 will be 
used in determining whether the acceptance or rejection of a batch has 
occurred.
    (b) Acceptance or rejection of a batch takes place when the decision 
that a vehicle is a failing vehicle is made on the last vehicle required 
to make a decision under paragraph (a) of this section.



Sec. 205.57-7  Acceptance and rejection of batch sequence.

    (a) The manufacturer will continue to inspect consecutive batches 
until the batch sequence is accepted or rejected based upon the number 
of rejected batches. A sufficient number of consecutive batches will be 
inspected until the cumulative number of rejected batches is less than 
or equal to the sequence acceptance number of greater than or equal to 
the sequence rejection number appropriate for the cumulative number of 
batches inspected. The acceptance and rejection numbers listed in 
Appendix I, Table III at the appropriate code letter obtained according 
to Sec. 205.57-2 will be used in determining whether the acceptance or 
rejection of a batch sequence has occurred.
    (b) Acceptance or rejection of a batch sequence takes place when the 
decision that a vehicle is a failiing vehicle is made on the last 
vehicle required to make a decision under paragraph (a) of this section.
    (c) If the batch sequence is accepted, the manufactureer will not be 
required to perform any additional testing on vehicles from subsequent 
batches pursuant to the initiating test request.

[[Page 127]]

    (d) The Administrator may terminate testing earlier than required in 
paragraph (b) of this section based on a request by the manufacturer 
accompanied by voluntary cessation of distribution in commerce, of 
vehicles from the category, configuration or subgroup in question 
manufactured at the plant which produced the vehicles under test: 
Provided, That before reinitiating distribution in commerce of vehicles 
from such plant of such vehicle category, configuration or subgroup, the 
manufacturer must take the action described in Sec. 205.57-9(a)(1) and 
(a)(2).

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61460, Dec. 5, 1977]



Sec. 205.57-8  Continued testing.

    (a) If a batch sequence is rejected in accordance with paragraph (b) 
of Sec. 205.57-7, the Administrator may require that any or all 
vehicles of that category, configuration of subgroup thereof produced at 
that plant be tested before distribution in commerce.
    (b) The Administrator will notify the manufacturer in writing of his 
intent to require such continued testing of vehicles pursuant to 
paragraph (a) of this section.
    (c) The manufacturer may request a hearing on the issues of whether 
the selective enforcement audit was conducted properly; whether the 
criteria for batch sequence rejection in Sec. 204.57-7 have been met; 
and, the appropriateness or scope of a continued testing order. In the 
event that a hearing is requested, the hearing shall begin no later than 
15 days after the date on which the Administrator received the hearing 
request. Neither the request for a hearing nor the fact that a hearing 
is in progress shall affect the reponsibility of the manufacturer to 
commence and continue testing required by the Administrator pursuant to 
paragraph (a) of this section.
    (d) Any tested vehicle which demonstrated conformance with the 
applicable standards may be distributed into commerce.
    (e) Any knowing distribution into commerce of a vehicle which does 
not comply with the applicable standards is a prohibited act.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61460, Dec. 5, 1977; 44 
FR 54296, Sept. 19, 1979]



Sec. 205.57-9  Prohibition on distribution in commerce;
manufacturer's remedy.

    (a) The Administrator will permit the cessation of continued testing 
under Sec. 205.57-8 once the manufacturer has taken the following 
actions:
    (1) Submit a written report to the Administrator which identifies 
the reason for the noncompliance of the vehicles, describes the problem 
and describes the proposed quality control and/or quality assurance 
remedies to be taken by the manufacturer to correct the problem or 
follows the requirements for an engineering change. Such requirements 
include the following:
    (i) Any change to a configuration with respect to any of the 
parameters stated in Sec. 205.55-3 shall constitute the addition of a 
new and separate configuration or category to the manufacturer's product 
line.
    (ii) When a manufacturer introduces a new category or configuration 
to his product line, he shall proceed in accordance with Sec. 205.55-2.
    (iii) If the configuration to be added can be grouped within a 
verified category and the new configuration is estimated to have a lower 
sound pressure level than a previously verified configuration within the 
same category, the configuration shall be considered verified.
    (2) Demonstrates that the specified vehicle category, configuration 
or subgroup thereof has passed a retest conducted in accordance with 
Sec. 205.57 and the conditions specified in the initial test request.
    (3) The manufacturer may begin testing under paragraph (a)(2) of 
this section upon submitting such report, and may cease continued 
testing upon making the demonstration required by paragraph (a)(2) of 
this section, provided that the Administrator may require resumption of 
continued testing if he determines that the manufacturer has not 
satisfied the requirements of paragraphs (a)(1) and (2) of this section.

[[Page 128]]

    (b) Any vehicle failing the prescribed noise emission tests 
conducted pursuant to this Subpart B may not be distributed in commerce 
until necessary adjustments or repairs have been made and the vehicle 
passes a retest.
    (c) No vehicles of a rejected batch which are still in the hands of 
the manufacturer may be distributed in commerce unless the manufacturer 
has demonstrated to the satisfaction of the Administrator that such 
vehicles do in fact conform to the regulations: Except, that any vehicle 
that has been tested and does, in fact, conform with these regulations 
may be distributed in commerce.

[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61460, Dec. 5, 1977; 47 
FR 57715, Dec. 28, 1982]



Sec. 205.58  In-use requirements.



Sec. 205.58-1  Warranty.

    (a) The vehicle manufacturer shall include the owner's manual or in 
other information supplied to the ulitmate purchaser the following 
statement:

                        Noise Emissions Warranty

    (Name of vehicle manufacturer) warrants to the first person who 
purchases this vehicle for purposes other than resale and to each 
subsequent purchaser that this vehicle as manufactured by (names of 
vehicle manufacturer), was designed, built and equipped to conform at 
the time it left (name of vehicle manufacturer)'s control with all 
applicable U.S. EPA Noise Control Regulations.
    This warranty covers this vehicle as designed, built and equipped by 
(Name of vehicle manufacturer), and is not limited to any particular 
part, component or system of the vehicle manufactured by (name of 
vehicle manufacturer). Defects in design, assembly or in any part, 
component or system of the vehicle as manufactured by (name of vehicle 
manufacturer), which, at the time it left (name of vehicle 
manufacturer)'s control, caused noise emissions to exceed Federal 
standards, are covered by this warranty for the life of the vehicle.

    (b) [Reserved]

[41 FR 15544, Apr. 13, 1976, as amended at 47 FR 57715, Dec. 28, 1982; 
48 FR 27040, June 13, 1983]



Sec. 205.58-2  Tampering.

    (a) For each configuration of vehicles covered by this part, the 
manufacturer shall develop a list of those acts which, in his judgment, 
might be done to the vehicle in use and which would constitute the 
removal or rendering inoperative of noise control devices or elements of 
design of the vehicle.
    (b) The manufacturer shall include in the owner's manual the 
following information:
    (1) The statement:

             Tampering With Noise Control System Prohibited

    Federal law prohibits the following acts or the causing thereof:
    (1) The removal or rendering inoperative by any person, other than 
for purposes of maintenance, repair, or replacement, of any device or 
element of design incorporated into any new vehicle for the purpose of 
noise control prior to its sale or delivery to the ultimate purchaser or 
while it is in use; or (2) the use of the vehicle after such device or 
element of design has been removed or rendered inoperative by any 
person.

    (2) The statement:

    Among those acts presumed to constitute tampering are the acts 
listed below.


Immediately following this statement, the manufacturer shall include the 
list developed under paragraph (a) of this section.
    (c) Any act included in the list prepared pursuant to paragraph (a) 
of this section is presumed to constitute tampering; however, in any 
case in which a proscribed act has been committed and it can be shown 
that such act resulted in no increase in the noise level of the vehicle 
or that the vehicle still meets the noise emission standard of Sec. 
205.52, such act will not constitute tampering.
    (d) The provisions of this section are not intended to preclude any 
State or local jurisdiction from adopting and enforcing its own 
prohibitions against the removal or rendering inoperative of noise 
control systems on vehicles subject to this part.

[41 FR 15544, Apr. 13, 1976, as amended at 47 FR 57715, Dec. 28, 1982; 
48 FR 27040, June 13, 1983]



Sec. 205.58-3  Instructions for maintenance, use and repair.

    (a)(1) The manufacturer shall provide to the ultimate purchaser of 
each vehicle covered by this subpart written instructions for the proper 
maintenance,

[[Page 129]]

use and repair of the vehicle in order to provide reasonable assurance 
of the elimination or minimization of noise emission degradation 
throughout the life of the vehicle.
    (2) The purpose of the instructions is to inform purchasers and 
mechanics of those acts necessary to reasonably assure that degradation 
of noise emission level is eliminated or minimized during the life of 
the vehicle. Manufacturers should prepare the instructions with this 
purpose in mind. The instructions should be clear and, to the extent 
practicable, written in nontechnical language.
    (3) The instructions must not be used to secure an unfair 
competitive advantage. They should not restrict replacement equipment to 
original equipment or service to dealer service. Manufacturers who so 
restrict replacement equipment should be prepared to make public any 
performance specifications on such equipment.
    (b) For the purpose of encouraging proper maintenance, the 
manufacturer shall provide a record or log book which shall contain a 
schedule for the performance of all required noise emission control 
maintenance. Space shall be provided in this record book so that the 
purchaser can note what maintenance was done, by whom, where and when.

[41 FR 15544, Apr. 13, 1976, as amended at 47 FR 57716, Dec. 28, 1982]



Sec. 205.59  Recall of noncomplying vehicles.

    (a) Pursuant to section 11(d)(1) of the Act, the Administrator may 
issue an order to the manufacturer to recall and repair or modify any 
vehicle distributed in commerce not in compliance with this subpart.
    (b) A recall order issued pursuant to this section shall be based 
upon a determination by the Administrator that vehicles of a specified 
category or configuration have been distributed in commerce which do not 
conform to the regulations. Such determination may be based on:
    (1) A technical analysis of the noise emission characteristics of 
the category or configuration in question; or
    (2) Any other relevant information, including test data.
    (c) For the purposes of this section, noise emissions may be 
measured by any test prescribed in Sec. 205.54 for testing prior to 
sale or any other test which has been demonstrated to correlate with the 
prescribed test procedure.
    (d) Any such order shall be issued only after notice and an 
opportunity for a hearing.
    (e) All costs, including labor and parts, associated with the recall 
and repair or modification of non-complying vehicles under this section 
shall be borne by the manufacturer.
    (f) This section shall not limit the discretion of the Administrator 
to take any other actions which are authorized by the Act.



                Sec. Appendix I to Subpart B of Part 205

                    Table I--Sample Size Code Letters
------------------------------------------------------------------------
                  Batch size                          Code letter
------------------------------------------------------------------------
4 to 8.......................................  A.
9 to 15......................................  B.
16 to 25.....................................  C.
26 and larger................................  D.
------------------------------------------------------------------------


                                 Table II--Sampling Plans for Inspecting Batches
----------------------------------------------------------------------------------------------------------------
                                                                                             Batch inspection
                                                                     Test     Cumulative         criteria
        Sample size code letter                Test sample          sample       test    -----------------------
                                                                     size       sample    Acceptance   Rejection
                                                                                 size         No.         No.
----------------------------------------------------------------------------------------------------------------
A.....................................  1st.....................           4           4           0           1
B.....................................  1st.....................           3           3           0           1
C.....................................  1st.....................           3           3           0           2
                                        2d......................           3           6           1           2
D.....................................  1st.....................           2           2       (\1\)           2
                                        2d......................           2           4       (\1\)           2
                                        3d......................           2           6           0           2
                                        4th.....................           2           8           0           3
                                        5th.....................           2          10           1           3
                                        6th.....................           2          12           1           3

[[Page 130]]

 
                                        7th.....................           2          14           2           3
----------------------------------------------------------------------------------------------------------------
\1\ Batch acceptance not permitted at this sample size.


                                         Table III--Batch Sequence Plans
----------------------------------------------------------------------------------------------------------------
                                                                                            Sequence inspection
                                                                              Cumulative         criteria
                     Sample size code letter                       Number of   number of -----------------------
                                                                    batches     batches   Acceptance   Rejection
                                                                                              No.         No.
----------------------------------------------------------------------------------------------------------------
A...............................................................           2           2           1       (\2\)
                                                                           2           4           2           4
                                                                           2           6           3           5
                                                                           2           8           4           5
B...............................................................           2           2           0       (\2\)
                                                                           2           4           1           4
                                                                           2           6           2           5
                                                                           2           8           3           5
                                                                           2          10           4           6
                                                                           2          12           5           6
C...............................................................           2           2       (\1\)           2
                                                                           2           4           0           2
                                                                           2           6           0           3
                                                                           2           8           1           3
                                                                           2          10           2           4
                                                                           2          12           3           4
D...............................................................           2           2           0           2
                                                                           2           4           1           3
                                                                           2           6           2           4
                                                                           2           8           3           4
----------------------------------------------------------------------------------------------------------------
\1\ Batch sequence acceptance not permitted for this number of batches.
\2\ Batch sequence rejection not permitted for this number of batches.


                            Table IV--Recommended Format for Vehicle Noise Data Sheet
 
Test Report Number:.......................  Manufacturer:..............
VEHICLE:
Trade Name:...............................  VIN:.......................
Model Year:...............................  Other Reference No:........
Configuration Identification:.............  Category Identification:...
Test Site Identification and Location:....
INSTRUMENTATION:
Microphone Manufacturer:..................  Model No:..................  Serial No:.................
Sound Level Manufacturer:.................  Model No:..................  Serial No:.................
Calibrator Manufacturer:..................  Model No:..................  Serial No:.................
Other and Manufacturer:...................  Model No:..................  Serial No:.................
TEST DATA:
Approach Gear:............................  Date of Test:..............
Approach RPM:.............................  Temp:......................  Wind:......................
  Acceleration Test:................................................................................
  Deceleration Test:................................................................................
----------------------------------------------------------------------------------------------------------------
 


                                                Acceleration Test
----------------------------------------------------------------------------------------------------------------
                                                                                Run No.
                                                     -----------------------------------------------------------
                                                           1           2           3           4           5
----------------------------------------------------------------------------------------------------------------
dBA            Left.................................
               Right................................
----------------------------------------------------------------------------------------------------------------
Highest RPM attained in End Zone
----------------------------------------------------------------------------------------------------------------
               Calculated Sound Pressure............  ..........         dBA
----------------------------------------------------------------------------------------------------------------
                                  Deceleration Test with Exhaust Brake Applied
----------------------------------------------------------------------------------------------------------------
dBA            Left.................................

[[Page 131]]

 
               Right................................
----------------------------------------------------------------------------------------------------------------
               Calculated Sound Pressure............  ..........         dBA
TEST Personnel:.................................................
                        (Name)
Recorded By:....................................................  Date:.....
                                                                     ....
                     (Signature)
Supervisor:.....................................................  Title:....
                                                                     .....
                     (Signature)
----------------------------------------------------------------------------------------------------------------


[41 FR 15544, Apr. 13, 1976, as amended at 42 FR 61460, Dec. 5, 1977]

Subpart C [Reserved]



                          Subpart D_Motorcycles

    Source: 45 FR 86708, Dec. 31, 1980, unless otherwise noted.



Sec. 205.150  Applicability.

    (a) Except as otherwise provided in these regulations, the 
provisions of this subpart apply to 1983 and subsequent model year 
motorcycles manufactured after December 31, 1982, which meet the 
definition of ``new product'' in the Act.
    (b) The provisions of this subpart do not apply to electric or 
battery-powered motorcycles.
    (c) Except as provided in Sec. 205.158, the provisions of this 
subpart do not apply to competition motorcycles as defined in Sec. 
205.151(a)(3).



Sec. 205.151  Definitions.

    (a) As used in this subpart and in Subpart E, all terms not defined 
herein shall have the meaning given them in the Act or in Subpart A of 
this part.
    (1) Motorcycle means any motor vehicle, other than a tractor, that:
    (i) Has two or three wheels;
    (ii) Has a curb mass less than or equal to 680 kg (1499 lb); and
    (iii) Is capable, with an 80 kg (176 lb) driver, of achieving a 
maximum speed of at least 24 km/h (15 mph) over a level paved surface.
    (2) Street motorcycle means:
    (i) Any motorcycle that:
    (A) With an 80 kg (176 lb) driver, is capable of achieving a maximum 
speed of at least 40 km/h (25 mph) over a level paved surface; and
    (B) Is equipped with features customarily associated with practical 
street or highway use, such features including but not limited to any of 
the following: stoplight, horn, rear view mirror, turn signals: or
    (ii) Any motorcycle that:
    (A) Has an engine displacement less than 50 cubic centimeters;
    (B) Produces no more than two brake horse power;
    (C) With a 80 kg (176 lb) driver, cannot exceed 48 km/h (30 mph) 
over a level paved surface.
    (3) Competition motorcycle means any motorcycle designed and 
marketed solely for use in closed course competition events.
    (4) Off-road motorcycle means any motorcycle that is not a street 
motorcycle or competition motorcycle.
    (5) Acceleration test procedure means the measurement methodologies 
specified in Appendix I.
    (6) Acceptable quality level (AQL) means the maximum allowable 
average percentage of vehicles or exhaust systems that can fail sampling 
inspection under a Selective Enforcement Audit.
    (7) Acoustical Assurance Period (AAP) means a specified period of 
time or miles driven after sale to the ultimate purchaser during which a 
newly manufactured vehicle or exhaust system, properly used and 
maintained, must continue in compliance with the Federal standard.
    (8) Advertised Engine Displacement means the rounded off volumetric 
engine capacity used for marketing purposes by the motorcycle 
manufacturer.
    (9) Category means a group of vehicle configurations which are 
identical in

[[Page 132]]

all material aspects with respect to the parameters listed in Sec. 
205.157-2 of this subpart.
    (10) Class means a group of vehicles which are identical in all 
material aspects with respect to the parameters listed in Sec. 205.155 
of this subpart.
    (11) Closed course competition event means any organized competition 
event covering an enclosed, repeated or confined route intended for easy 
viewing of the entire route by all spectators. Such events include short 
track, dirt track, drag race, speedway, hillclimb, ice race, and the 
Bonneville Speed Trials.
    (12) Closing rpm means the engine speed in Figure 2 of Appendix I.
    (13) Configuration means the basic classification unit of a 
manufacturer's product line and is comprised of all vehicle designs, 
models or series which are identical in all material aspects with 
respect to the parameters listed in Sec. 205.157-3 of this subpart.
    (14) Engine displacement means volumetric engine capacity as defined 
in Sec. 205.153.
    (15) Exhaust system means the combination of components which 
provides for the enclosed flow of exhaust gas from the engine exhaust 
port to the atmosphere. ``Exhaust system'' further means any constituent 
components of the combination which conduct exhaust gases and which are 
sold as separate products. ``Exhaust System'' does not mean any of the 
constituent components of the combination, alone, which do not conduct 
exhaust gases, such as brackets and other mounting hardware.
    (16) Failing vehicle means a vehicle whose noise level is in excess 
of the applicable standard.
    (17) Maximum rated RPM means the engine speed measured in 
revolutions per minute (RPM) at which peak net brake power (SAE J-245) 
is developed for motorcycles of a given configuration.
    (18) Model specific code means the designation used for labeling 
purposes in Sec. Sec. 205.158 and 205.169 for identifying the 
motorcycle manufacturer, class, and ``advertised engine displacement,'' 
respectively.
    (19) Model year means the manufacturer's annual production period, 
which includes January 1 of any calendar year, or if the manufacturer 
has no annual production period, the term ``model year'' shall mean the 
calendar year.
    (20) Motorcycle noise level means the A-weighted noise level of a 
motorcycle as measured by the acceleration test procedure.
    (21) Noise control system means any vehicle part, component or 
system, the purpose of which includes control or the reduction of noise 
emitted from a vehicle, including all exhaust system components.
    (22) Noise emission standard means the noise levels in Sec. 205.152 
or Sec. 205.166.
    (23) Noise emission test means a test conducted pursuant to a 
measurement methodology specified in this subpart.
    (24) [Reserved]
    (25) Serial number means the identification number assigned by the 
manufacturer to a specific production unit.
    (26) Tampering means the removal or rendering inoperative by any 
person, other than for purposes of maintenance, repair, or replacement, 
of any device or element of design incorporated into any product in 
compliance with regulations under section 6, prior to its sale or 
delivery to the ultimate purchaser or while it is in use; or the use of 
a product after such device or element of design has been removed or 
rendered inoperative by any person.
    (27) Test vehicle means a vehicle in a Selective Enforcement Audit 
test sample.
    (28) Tractor means for the purposes of this subpart, any two or 
three wheeled vehicle used exclusively for agricultural purposes, or for 
snow plowing, including self-propelled machines used exclusively in 
growing, harvesting or handling farm produce.
    (29) Vehicle means any motorcycle regulated pursuant to this 
subpart.
    (30) Warranty means the warranty required by section 6(d)(1) of the 
Act.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57720, Dec. 28, 1982]



Sec. 205.152  Noise emission standards.

    (a) Noise emission standards. (1) Street motorcycles of the 
following and subsequent model years must not produce noise emissions in 
excess of the levels indicated:

[[Page 133]]

    (i) Street motorcycles other than those that meet the definition of 
Sec. 205.151(a)(2)(ii):

------------------------------------------------------------------------
                                                              A-weighted
                         Model year                              noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          83
(B) 1986....................................................          80
------------------------------------------------------------------------

    (ii) Street motorcycles that meet the definition of Sec. 
205.151(a)(2)(ii)(moped-type street motorcycles):

------------------------------------------------------------------------
                                                              A-weighted
                         Model year                              noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          70
------------------------------------------------------------------------

    (2) Off-road motorcycles of the following and subsequent model years 
must not produce noise emissions in excess of the levels indicated:
    (i) Off-road motorcycles with engine displacements of 170 cc and 
lower:

------------------------------------------------------------------------
                                                              A-weighted
                         Model year                              noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          83
(B) 1986....................................................          80
------------------------------------------------------------------------

    (ii) Off-road motorcycles with engine displacements greater than 170 
cc:

------------------------------------------------------------------------
                                                              A-weighted
                         Model year                              noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          86
(B) 1986....................................................          82
------------------------------------------------------------------------

    (3) Street motorcycles must be designed, built and equipped so that, 
when properly maintained and used, they will not produce noise emissions 
in excess of the levels specified in paragraph (a)(1) of this section, 
for an Acoustical Assurance Period of one year or a distance of 6000 km 
(3730 mi) after the time of sale to the ultimate purchaser, whichever 
occurs first.
    (4) Off-road motorcycles must be designed, built and equipped so 
that, when properly maintained and used, they will not produce noise 
emissions in excess of the levels specified in paragraph (a)(2) of this 
section, for an Acoustical Assurance Period of one year or a distance of 
3000 km (1865 mi) after the time of sale to the ultimate purchaser, 
whichever occurs first.
    (5) At the time of sale to the ultimate purchaser, all products must 
comply with the standards set forth in paragraphs (a)(1) and (2) of this 
section.
    (b) Measurement procedure. (1) The standards set forth in paragraph 
(a) of this section refer to noise emissions as measured in accordance 
with the measurement methodology specified in Appendix I-1 for all 
motorcycles except those street motorcycles that meet the definition of 
Sec. 205.151(a)(2)(ii).
    (2) The standards set forth in paragraph (a) of this section for 
street motorcycles that meet the definition of Sec. 205.151(a)(2)(ii) 
(moped-type street motorcycles) refer to noise emissions measured in 
accordance with the measurement methodology specified in Appendix I-2.
    (c) Low noise emission product standard. For the purpose of Low-
Noise-Emission Product certification pursuant to 40 CFR part 203, 
motorcycles procured by the Federal government after the following dates 
must not produce noise emissions in excess of the noise levels 
indicated:
    (1) For street motorcycles with engine displacement greater than 170 
cc:

------------------------------------------------------------------------
                                                              A-weighted
                            Date                                 noise
                                                              level (dB)
------------------------------------------------------------------------
(i) January 1, 1982.........................................          73
(ii) January 1, 1989........................................          71
------------------------------------------------------------------------

    (2) For off-road motorcycles with engine displacements greater than 
170 cc:

------------------------------------------------------------------------
                                                              A-weighted
                            Date                                 noise
                                                              level (dB)
------------------------------------------------------------------------
(i) January 1, 1982.........................................          75
------------------------------------------------------------------------

    (3) For off-road motorcycles with engine displacement 170 cc and 
lower and street motorcycles with engine displacement 170 cc and lower 
that do not meet the definition of Sec. 205.151(a)(2)(ii):

------------------------------------------------------------------------
                                                              A-weighted
                            Date                                 noise
                                                              level (dB)
------------------------------------------------------------------------
(i) January 1, 1982.........................................          71
------------------------------------------------------------------------

    (4) For street motorcycles that meet the definition of Sec. 
205.151(a)(2)(ii) (moped-type street motorcycles):

------------------------------------------------------------------------
                                                              A-weighted
                            Date                                 noise
                                                              level (dB)
------------------------------------------------------------------------
(i) January 1, 1982.........................................          60
------------------------------------------------------------------------


[[Page 134]]


These levels refer to noise emissions as measured in accordance with the 
measurement methodologies specified in appendix I. LNEP's must also meet 
all requirements contained in paragraphs (a)(3), (4), and (5), of this 
section.

(Secs. 10 and 15 of the Noise Control Act, (42 U.S.C. 4909, 4914))



Sec. 205.153  Engine displacement.

    (a) Engine displacement must be calculated using nominal engine 
values and rounded to the nearest whole cubic centimeter, in accordance 
with American Society for Testing Materials (ASTM) E 29-67.
    (b) For rotary engines, displacement means the maximum volume of a 
combustion chamber between two rotor tip seals minus the minimum volume 
of that combustion chamber between those two rotor seals times three 
times the number of rotors.

cc=(Maximum chamber volume-minimum chamber volume) x 3 x number of 
    rotors.



Sec. 205.154  Consideration of alternative test procedures.

    The Administrator may approve applications from manufacturers of 
motorcycles for the approval of test procedures which differ from those 
contained in this subpart so long as the alternative procedures have 
been demonstrated to correlate with the prescribed procedure. To be 
acceptable, alternative test procedures must be such that the test 
results obtained will identify all those test motorcycles which would 
not comply with the noise emission standards prescribed in Sec. 205.152 
when tested in accordance with the measurement methodology specified in 
Appendix I. After approval by the Administrator, testing conducted by 
manufacturers using alternative test procedures will be accepted by the 
Administrator for all purposes including, but not limited to, selective 
enforcement audit testing.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57720, Dec. 28, 1982]



Sec. 205.155  Motorcycle class and manufacturer abbreviation.

    (a) Motorcycles must be grouped into classes determined by separate 
combinations of the following parameters:
    (1) Engine type:
    (i) Gasoline--two stroke.
    (ii) Gasoline--four stroke.
    (iii) Gasoline--rotary.
    (iv) Other.
    (2) Engine displacement.
    (3) Engine configuration:
    (i) Number of cylinders.
    (ii) Cylinder arrangement (i.e., in line, opposed, etc.).
    (4) Exhaust system:
    (i) Muffler: (A) Type, (B) Location, (C) Number.
    (ii) Expansion chambers: (A) Location, (B) Size.
    (iii) Spark arrestors.
    (iv) Other exhaust system components.



Sec. 205.156  [Reserved]



Sec. 205.157  Requirements.



Sec. 205.157-1  General requirements.

    (a) Each manufacturer of vehicles manufactured for distribution in 
commerce in the United States which are subject to the standards 
prescribed in this subpart and not exempted in accordance with Subpart 
A, Sec. 205.5:
    (1) Shall be labeled in accordance with the requirements of Sec. 
205.158 of this subpart.
    (2) Must ensure that each vehicle conforms to the applicable noise 
emission standard establishd in Sec. 205.152 of this subpart.
    (b) The requirements of paragraph (a) of this section apply to new 
products which conform to the definition of vehicles in these 
regulations and at the time such new products are assembled to that 
state of completeness in which the manufacturer sends them to a 
subsequent manufacturer or otherwise distributes them in commerce.
    (c) Subsequent manufacturers of a new product which conforms to the 
definition of vehicle in these regulations when received by them from a 
prior manufacturer, need not fulfill the requirements of paragraph 
(a)(1) of this section where such requirements have

[[Page 135]]

already been complied with by a prior manufacturer.
    (d) The manufacturer who is required to conduct product verification 
testing to demonstrate compliance with a particular standard, must 
satisfy all other provisions of this subpart applicable to that 
standard, including but not limited to, record keeping, reporting and 
in-use requirements.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57720, Dec. 28, 1982]



Sec. 205.157-2  Compliance with standards.

    (a)(1) Prior to distribution in commerce of vehicles of a specific 
configuration, the first manufacturer of such vehicle must verify such 
configurations in accordance with the requirements of this subpart.
    (2) [Reserved]
    (3) At any time following receipt of notice under paragraph 
(a)(2)(iii) of this section with respect to a configuration, the 
Administrator may require that the manufacturer ship test vehicles to an 
EPA test facility for the required production verification testing.
    (b) The requirements for purposes of testing by the Administrator 
and selective enforcement auditing with regard to each vehicle 
configuration consist of:
    (1) Testing in accordance with Sec. 205.160-4 of a vehicle selected 
in accordance with Sec. 205.160-2.
    (2) Compliance of the test vehicle with the applicable standard when 
tested in accordance with Sec. 205.160-4.
    (c)(1) In lieu of testing vehicles of every configuration as 
described in paragraph (b) of this section, the manufacturer may elect 
to verify the configuration based on representative testing. The 
requirements of representative testing are:
    (i) Grouping configurations into categories where each category is 
determined by a separate combination of at least the following 
parameters (a manufacturer may use more parameters):
    (A) Engine type: (1) Gasoline-two stroke; (2) gasoline-four stroke; 
(3) gasoline-rotary; and (4) other.
    (B) Engine displacement.
    (C) Engine configuration: (1) Number of cylinders; and (2) cylinder 
arrangement (i.e., in line, opposed, etc.)
    (ii) Identifying the configuration within each category which emits 
the highest A-weighted sound level (in dB).
    (iii) Testing in accordance with Sec. 205.160-4 of a vehicle 
selected in accordance with Sec. 205.160-2 which much be a vehicle of 
the configuration which is identified pursuant to paragraph (c)(1)(ii) 
of this section as having the highest sound pressure level (estimated or 
actual) within the category.
    (iv) Demonstrating compliance of that vehicle with the applicable 
standard when tested in accordance with the test procedure specified in 
Appendix I.
    (2) Where the requirements of paragraph (c)(1) of this section are 
complied with, all those configurations contained within a category are 
considered represented by the tested vehicle.
    (3) Where the manufacturer tests a vehicle configuration which has 
not been determined as having the highest sound pressure level of a 
category, but all other requirements of paragraph (c)(1) of this section 
are complied with, all those configurations contained within that 
category which are determined to have sound pressure levels not greater 
than the tested vehicle are considered to be represented by the tested 
vehicle; however, a manufacturer must for purposes of Testing by the 
Administrator and Selective Enforcement Auditing verify according to the 
requirements of (b)(1) and/or (c)(1) of this section any configurations 
in the subject category which have a higher sound pressure level than 
the vehicle configuration tested.
    (d) A manufacturer may elect for purposes of Testing by the 
Administrator and Selective Enforcement Auditing to use representative 
testing pursuant to paragraph (c) of this section for all or part of his 
product line.
    (e) The manufacturer has the following alternatives if any test 
vehicle is determined to not be in compliance with applicable standards:
    (1) In the case of representative testing, a new test vehicle from 
another configuration must be selected according to the requirements of 
paragraph (c) of this section, in order to verify the configurations 
represented by the non-compliant vehicle.

[[Page 136]]

    (2) Modify the test vehicle and demonstrate by testing that it meets 
applicable standards. The manufacturer must modify all production 
vehicles of the same configuration in the same manner as the test 
vehicle before distribution into commerce.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57720, Dec. 28, 1982]



Sec. 205.157-3  Configuration identification.

    (a) A separate vehicle configuration shall be determined by each 
combination of the following parameters:
    (1) Exhaust system (engine): (i) Mufflers; (ii) expansion chambers; 
(iii) spark arrestors; and (iv) other exhaust system components.
    (2) Air induction system (engine): (i) Intake muffler; (ii) intake 
ducting; and (iii) air cleaner element.
    (3) Vehicle drive train: (i) Chain; and (ii) shaft.
    (4) Transmission gear ratio: (i) Standard transmission; and (ii) 
automatic transmission.
    (5) Cooling system configuration: (i) Natural air cooled; (ii) 
liquid cooled; and (iii) forced air cooled.
    (6) Category parameters listed in Sec. 205.157-2.
    (b) [Reserved]



Sec. 205.158  Labeling requirements.

    (a)(1) The manufacturer of any vehicle subject to this subpart must, 
at the time of manufacture, affix a label, of the type specified in 
paragraphs (a)(2), (3), and (4) of this section, to all such vehicles to 
be distributed in commerce.
    (2) The label must be plastic or metal and be welded, riveted, or 
otherwise permanently attached in a readily visible position.
    (3) The label must be affixed by the vehicle manufacturer to the 
vehicle in such a manner that the label cannot be removed without 
destroying or defacing it, and must not be affixed to any piece of 
equipment that is easily detached from such vehicle.
    (4) The label must be lettered in the English language in legible 
block letters and numerals, which must be of a color that contrasts with 
the background of the label.
    (5) The label must contain the following information:
    (i) The label heading: Motorcycle Noise Emission Control 
Information;
    (ii) The statement:

    This ------ (model year) ------ (model specific code) motorcycle, --
---- (serial number), meets EPA noise emission requirements of ------ 
(noise emission standard) dBA at ------ (closing rpm) rpm by the Federal 
test procedure. Modifications which cause this motorcycle to exceed 
Federal noise standards are prohibited by Federal law. See owner's 
manual.

    (6) The model specific code is limited to ten spaces which includes 
three spaces for the manufacturer's abbreviation (see paragraph (a)(7) 
of this section), three spaces for the class identification, and four 
spaces for the advertised engine displacement respectively.
    (7) All motorcycle manufacturers shall use the following 
abbreviations in their model specific code.

BMW..........................................  BMW
Bultaco......................................  BUL
Can-Am Bombardier............................  CAB
Chaparral....................................  CHA
Cheeta.......................................  CHE
Ducati.......................................  DUC
Fox..........................................  FOX
Harley Davidson..............................  HAR
Heald........................................  HEA
Hercules.....................................  HER
Hodaka.......................................  HOD
Honda........................................  HON
Husqvarna....................................  HUS
JAWA/CZ......................................  JAW
Kawasaki.....................................  KAW
KTM..........................................  KTM
Laverda......................................  LAV
Moto Benilli.................................  BEN
Moto Guzzi...................................  GUZ
Moto Morini..................................  MOR
MV Agusta....................................  MVA
Norton Triumph...............................  TRI
Rokon........................................  ROK
Suzuki.......................................  SUZ
Yamaha.......................................  YAM
 

    (8) Moped manufacturers only shall use the following abbreviations 
in their model specific code.

AMF..........................................  AMF
Benelli......................................  BEL
Califfo......................................  CAL
Carabela.....................................  CAR
Cimatti......................................  CIM
Columbia.....................................  COL
E-Z Rider....................................  EZR
Flying Dutchman..............................  FLY
Foxi.........................................  FOI
Gadabout.....................................  GAD
Garelli......................................  GAR
Gitane.......................................  GIT
Honda........................................  HON
Indian.......................................  IND
Intramotor...................................  INT
Italvelo.....................................  ITA
Kreidler.....................................  KRE
Lazer........................................  LAZ

[[Page 137]]

 
Malagati.....................................  MAL
Morini.......................................  MOI
Motobecane/Solex.............................  MBE
Moto Guzzi...................................  GUZ
Negrini......................................  NEG
Odyssey......................................  ODY
Pacer........................................  PAC
Pack-A-Way...................................  PAK
Peugeot......................................  PEU
Puch.........................................  PUC
Riviera......................................  RIV
Sachs........................................  SAC
Safari.......................................  SAF
Scorpion.....................................  SCO
Smily........................................  SMI
Snark........................................  SNA
Sori II......................................  SON
Speed Bird...................................  SPE
Sprinter.....................................  SPR
SuVega.......................................  SUV
Tomas........................................  TOM
Vaespa.......................................  VES
Yankee Peddler...............................  YAN
 

    (9) If a new motorcycle manufacturer begins production of vehicles 
subject to this regulation, the Administrator will assign him a 3-letter 
manufacturer abbreviation as soon as reasonably practical after his 
existence is known to the Agency.
    (b) Any vehicle manufactured in the United States solely for use 
outside the United States must be clearly labeled in accordance with the 
provisions of paragraphs (a) (2), (3), and (4) of this section with the 
statement; ``For Export Only''.
    (c) Any competition motorcycle as defined in Sec. 205.151(a)(3), 
shall be labeled in accordance with the provisions of paragraphs (a)(1), 
(2), (3) and (4) of this section with the statement:

    This motorcycle is designed for closed course competition use only. 
It does not conform to U.S. EPA motorcycle noise standards.

    (d) It will be permissible for manufacturers to meet the 
requirements of this section by consolidating these labeling 
requirements with other government labeling requirements in one or more 
labels, provided the provisions of paragraphs (a) (2), (3) and (4) of 
this section are met.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57721, Dec. 28, 1982]



Sec. 205.159  Testing by the Administrator.

    (a)(1) In order for the Administrator to determine whether such 
vehicles or a manufacturer's test facility conform to applicable 
regulations, the Administrator may require that vehicles to be tested 
pursuant to the Act be submitted to him, at such place and time as he 
reasonably designates. He may designate the quantity of vehicles and the 
duration of time he reasonably requires for the purpose of conducting 
tests in accordance with test procedures described in appendix I. The 
manner in which the Administrator conducts such tests, the EPA test 
facility, and the test procedures employed will be based upon good 
engineering practice and meet or exceed the requirements of appendix I 
of the regulations.
    (2) If the Administrator specifies that he will conduct such testing 
at the manufacturer's facility, the manufacturer shall make available 
instrumentation and equipment of the type required for test operations 
by these regulations. The Administrator may conduct such tests with his 
own equipment, having specifications equal to or exceeding the 
performance specifications of the instrumentation and equipment required 
in these regulations.
    (3) The manufacturer may observe tests conducted by the 
Administrator pursuant to this section on vehicles produced by the 
manufacturer and may copy the data accumulated from such tests. The 
manufacturer may inspect any of the vehicles before and after testing by 
the Administrator.
    (b)(1) If, based on tests conducted by the Administrator, or on 
other relevant information, the Administrator determines that the test 
facility does not meet the requirements of appendix I (or the 
requirements for an alternative test procedure approved under Sec. 
205.154), the Administrator will give notice to the manufacturer in 
writing of his determination and the reasons underlying it.
    (2) The manufacturer may, at any time within 15 days after receipt 
of a notice issued under paragraph (b)(1) of this section, request a 
hearing conducted in accordance with 5 U.S.C. 554 on the issue of 
whether his test facility met the requirements as specified in appendix 
I (or the alternative procedure). Such notice will not take effect until 
15 days after its receipt by the manufacturer or, if a hearing is 
requested under this paragraph, until adjudication by the Administrative 
law judge.

[[Page 138]]

    (3) After any notice issued under paragraph (b)(1) of this section 
has taken effect, no data thereafter derived from that test facility 
will be acceptable for purposes of this subpart.
    (4) The manufacturer may request in writing that the Administrator 
reconsider his determination under paragraph (b)(1) of this section 
based on data or information which indicates that changes have been made 
to the test facility and that those changes have resolved the reasons 
for disqualification.
    (5) Within 10 working days after receipt of the manufacturer's 
request for reconsideration pursuant to paragraph (b)(4) of this 
section, the Administrator will notify the manufacturer of his 
determination and of the reasons underlyng it with regard to the 
requalification of the test facility.
    (c) The Administrator will assume all reasonable costs associated 
with shipment of vehicles to the place designated pursuant to paragraph 
(a) of this section except with respect to:
    (1) Any production verification testing performed at a place other 
than the manufacturer's facility as provided in Sec. 205.157-2(a), or 
as a result of the manufacturer's not owning or having access to a test 
facility;
    (2) Testing of a reasonable number of vehicles (i) for purposes of 
selective enforcement auditing under Sec. 205.160, (ii) or if the 
manufacturer has failed to establish that there is a correlation between 
its test facility and the EPA test facility, (iii) or the Administrator 
has reason to believe, and provides the manufacturer with a statement of 
such reason, that the vehicles to be tested would fail to meet the 
standard prescribed in this subpart if tested at the EPA test facility 
even though they would meet such standard if tested at the 
manufacturer's test facility;
    (3) Any testing performed during a period when a notice issued 
pursuant to paragraph (b) of this section is in effect;
    (4) Any testing performed at a place other than the manufacturer's 
facility as a result of the manufacturer's failure to permit the 
Administrator to conduct or monitor testing as required by this subpart; 
and
    (5) Testing of up to 10 percent of the manufacturer's test vehicles 
for a model year if the Administrator determines testing these vehicles 
at the EPA test site is necessary to assure that a manufacturer has 
acted or is acting in compliance with the Act.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57721, Dec. 28, 1982]



Sec. 205.160  Selective enforcement auditing (SEA) requirements.



Sec. 205.160-1  Test request.

    (a) The Administrator will request all testing under Sec. 205.160 
by means of a test request addressed to the manufacturer.
    (b) The test request will be signed by the Assistant Administrator 
for Enforcement or his designee. The test request will be delivered to 
the plant manager or other responsible official as designated by the 
manufacturer.
    (c) The test request will specify the vehicle category, 
configuration or configuration subgroup selected for testing, the 
manufacturer's plant or storage facility from which the vehicles must be 
selected, and the time at which the vehicles must be selected. The test 
request will also provide for situations in which the selected category, 
configuration, or configuration subgroup is unavailable for testing. The 
test request may include an alternative category, configuration, or 
configuration subgroup designated for testing in the event that vehicles 
of the first specified category, configuration, or configuration 
subgroup are not available for testing because the vehicles are not 
being manufactured at the specified plant, are not being manufactured 
during the specified time, or are not being stored at the specified 
plant or storage facility.
    (d)(1) If the manufacturer projects a yearly production of fewer 
than 50 vehicles of the specified category, configuration or 
configuration subgroup to be tested, then within five (5) days of 
receipt of the request, the manufacturer must notify the Administrator 
of such low volume production. The Administrator will then provide a 
revised test request specifying a testing plan which imposes no greater 
risk of failure (5%) at the acceptable quality level

[[Page 139]]

(10%) than the plan in Appendix II. Upon receipt of the revised test 
request, the manufacturer must select and test a sample of vehicles from 
the category, configuration or configuration subgroup specified in the 
test request in accordance with this subpart and the conditions 
specified in the test request.
    (2) If the manufacturer produces 50 or more vehicles of the 
specified category, configuration or configuration subgroup per year, 
then upon receipt of the test request, the manufacturer must select and 
test a sample of vehicles from the category, configuration or 
configuration subgroup specified in the test request in accordance with 
this subpart and the conditions specified in the test request.
    (e)(1) Any testing conducted by the manufacturer under a test 
request must be initiated within the time period specified in the test 
request; except that initiation may be delayed for increments of 24 
hours or one business day where ambient test site weather conditions, or 
other conditions beyond the control of the manufacturer, in that 24-hour 
period, do not permit testing. The manufacturer must record the 
conditions for this period.
    (2) The manufacturer must complete noise emission testing on a 
minimum of ten vehicles per day unless otherwise provided by the 
Administrator or unless ambient test site conditions permit only the 
testing of a lesser number in which case the ambient test site weather 
conditions for that period must be recorded.
    (3) The manufacturer is allowed 24 hours to ship vehicles from a 
sample from the assembly plant to the testing facility if the facility 
is not located at the plant or in close proximity to the plant. The 
Administrator may approve more time based upon a request by the 
manufacturer accompanied by a satisfactory justification.
    (f) The Administrator may issue an order to the manufacturer to 
cease distribution in commerce of vehicles of a specified category, 
configuration, or configuration subgroup being manufactured at a 
particular facility, if:
    (1) The manufacturer refuses to comply with the provisions of a test 
request issued by the Administrator under this section; or
    (2) The manufacturer refuses to comply with any of the requirements 
of this section.
    (g) A cease distribution order will not be issued under paragraph 
(f) of this section if the manufacturer's refusal is caused by 
conditions and circumstances outside his control which render compliance 
with the provisions of a test request or with any other requirements of 
this section impossible. Conditions and circumstances outside the 
control of the manufacturer include, but are not limited to, the 
temporary unavailability of equipment and personnel needed to conduct 
the required tests caused by uncontrollable factors, such as equipment 
breakdown or failure or illness of personnel. Failure of the 
manufacturer to adequately plan for and provide the equipment and 
personnel needed to conduct the tests do not constitute uncontrollable 
factors. The manufacturer must bear the burden of establishing the 
presence of the conditions and circumstances required by this paragraph.
    (h) Any order to cease distribution will be issued only after a 
notice and opportunity for a hearing in accordance with 5 U.S.C. 554.



Sec. 205.160-2  Test sample selection and preparation.

    (a) Vehicles comprising the sample which are required to be tested 
under a test request in accordance with this subpart must be selected 
consecutively as they are produced. Before the official test, the test 
vehicle must not be prepared, tested, modified, adjusted, or maintained 
in any manner unless such preparation, tests, modifications, adjustments 
or maintenance are part of the manufacturer's prescribed manufacturing 
and inspection procedures, and are documented in the manufacturer's 
internal vehicle assembly and inspection procedures, are required or 
permitted under this subpart, or are approved in advance by the 
Administrator. For purposes of this section, prescribed manufacturing 
and inspection procedures include quality control testing and assembly 
procedures normally performed by the manufacturer

[[Page 140]]

on like products during early production if the resulting testing is not 
biased by this procedure. In the case of imported products, the 
manufacturer may perform adjustments, preparations, modification or 
tests normally performed at the port of entry by the manufacturer to 
prepare the vehicle for delivery to a dealer or customer.
    (1) Equipment or fixtures necessary to conduct the test may be 
installed on the vehicle if such equipment or fixtures have no effect on 
the noise emissions of the vehicle, as determined by the measurement 
methodology.
    (2) In the event of a vehicle malfunction (i.e., failure to start, 
etc.) the manufacturer may perform the maintenance that is necessary to 
enable the vehicle to operate in a normal manner. This maintenance must 
be documented and reported in the SEA report.
    (3) No quality control, quality assurance testing, assembly or 
selection procedures may be used on the test vehicle or any portion of 
the test vehicle including parts and subassemblies, unless such quality 
control, quality assurance testing, assembly or selection procedures are 
used normally during the production and assembly of all other vehicles 
of this configuration which will be distributed in commerce, are 
required or permitted under this subpart or are approved in advance by 
the Administrator.
    (4) If a vehicle is unable to complete the noise tests, the 
manufacturer may replace the vehicle. Any replacement vehicle must be a 
production vehicle of the same configuration as the replaced vehicle or 
a noisier configuration and will be subject to all the provisions of 
these regulations. Any replacement must be reported in the SEA report.
    (b) The Acceptable Quality Level (AQL) is 10 percent. The 
appropriate sampling plans associated with the designated AQL are 
contained in Appendix II or the test request.
    (c) The vehicles of the category, configuration or configuration 
subgroup selected for testing must be assembled by the manufacturer for 
distribution in commerce using the manufacturer's normal production 
process.
    (d) Unless otherwise indicated in the test request, the manufacturer 
must initiate testing with the vehicles of the category, configuration 
or configuration subgroup specified in the test request which are next 
scheduled for production after receipt of the test request.
    (e) The manufacturer must keep on hand all products in the test 
sample until the sample is accepted or rejected in accordance with Sec. 
205.160-6; except that vehicles actually tested and found to be in 
conformance with this regulation need not be kept.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57721, Dec. 28, 1982]



Sec. 205.160-3  [Reserved]



Sec. 205.160-4  Testing procedures.

    (a) The manufacturer must conduct one valid test in accordance with 
the appropriate test procedures specified in Appendix I, on each vehicle 
selected for testing under this subpart.
    (b) In the event a vehicle is unable to complete the noise emission 
test, the manufacturer may replace the vehicle. Any replacement vehicle 
must be a production vehicle of the same category, configuration or 
subgroup as the vehicle which it replaced, and it is subject to all the 
provisions of this subpart.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57721, Dec. 28, 1982]



Sec. 205.160-5  Reporting of the test results.

    (a)(1) The manufacturer must submit a copy of the test report for 
all testing conducted pursuant to Sec. 205.160 at the conclusion of 
each 24-hour period during which testing is done.
    (2) For each test conducted the manufacturer must provide the 
following information:
    (i) Category, configuration or configuration subgroup identification 
where applicable;
    (ii) Year, make, assembly date, and model of vehicle;
    (iii) Vehicle serial number; and
    (iv) Test results by serial numbers.
    (b) In the case where an EPA Enforcement Officer is present during 
testing required by this subpart, the written reports requested in 
paragraph (a) of this section may be given directly to the Enforcement 
Officer.

[[Page 141]]

    (c) Within 5 days after completion of testing of an SEA, the 
manufacturer must submit to the Administrator a final report which will 
include the following:
    (1) The name, location, and description of the manufacturer's noise 
emission test facilities which meet the specifications of Appendix I, 
and were utilized to conduct testing reported under this section, 
except, that a test facility that has been described in a previous 
submission under this subpart need not again be described, but must be 
identified as that facility.
    (2) The following information for each noise emission test 
conducted:
    (i) The individual records for the test vehicles required by Sec. 
205.161(a)(2) for all noise emission tests including for each invalid 
test, the reason for invalidation.
    (ii) A complete description of any modification, repair, 
preparation, maintenance, or testing which could affect the noise 
emissions of the product and which was performed on the test vehicle but 
not performed on all other production vehicles; and,
    (iii) The test results for any replaced vehicle and the reason for 
its replacement.
    (3) A complete description of the sound data acquisition system if 
other than those specified in Appendix I.
    (4) The following statement and endorsement:

    This report is submitted pursuant to section 6 and section 13 of the 
Noise Control Act of 1972. To the best of ------ (company name) 
knowledge, all testing for which data are reported here was conducted in 
strict conformance with applicable regulations under 40 CFR part 205 et 
seq., all the data reported here are a true and accurate representation 
of such testing, and all other information reported here is true and 
accurate. I am aware of the penalties associated with vio la tions of 
the Noise Control Act of 1972 and the regulations thereunder. ------ 
(authorized representative).

    (5) Additional information required by the test request.
    (d) Information required to be submitted to the Administrator under 
this section must be sent to the following address: Director, Noise and 
Radiation Enforcement Division, (EN-387), U.S. Environmental Protection 
Agency, Washington, DC 20460.



Sec. 205.160-6  Passing or failing under SEA.

    (a) A failing vehicle is one whose measured noise level is in excess 
of the applicable noise emission standard in Sec. 205.152.
    (b) The number of failing vehicles in a sample determines whether 
the sample passes or fails (See applicable tables in Appendix II). If 
the number of failing vehicles is greater than or equal to the number of 
Column B, the sample fails. If the number of failing vehicles is less 
than or equal to the number in Column A, the sample passes.
    (c) Pass or failure of an SEA takes place when a decision that a 
vehicle is a passing or failing unit is made on the last vehicle 
required to make a decision under paragraph (b) of this section.
    (d) If the manufacturer passes the SEA, he will not be required to 
perform any additional testing on subsequent vehicles to satisfy the 
test request.
    (e) The Administrator may terminate testing earlier than required in 
paragraph (b) of this section, based on a request by the manufacturer, 
accompanied by voluntarily ceasing distribution in commerce of vehicles 
from the category, configuration or configuration subgroup in question, 
manufactured at the plant which produced the products being tested. 
Before reinitiating distribution in commerce of that vehicle category, 
configuration or configuration subgroup from that plant, the 
manufacturer must take the action described in Sec. 205.160-8(a)(1) and 
(2).



Sec. 205.160-7  Continued testing.

    (a) If an SEA failure occurs according to paragraph (b) of Sec. 
205.160-6, the Administrator may require that any or all vehicles of 
that category, configuration or configuration subgroup produced at that 
plant be tested before distribution in commerce.
    (b) The Administrator will notify the manufacturer in writing of his 
intent to require continued testing of vehicles under paragraph (a) of 
this section.
    (c) The manufacturer may request a hearing on the issues of whether 
the SEA was conducted properly; whether the criteria for SEA failure 
have been met; and the appropriateness or scope

[[Page 142]]

of a continued testing order. If a hearing is requested, the hearing 
will begin no later than 15 days after the date on which the 
Administrator received the hearing request. Neither the request for a 
hearing nor the fact that a hearing is in progress will affect the 
responsibility of the manufacturer to commence and continue testing 
required by the Administrator pursuant to paragraph (a) of this section.
    (d) Any tested vehicle which demonstrates conformance with the 
applicable standard may be distributed into commerce.
    (e) Any distribution into commerce of a vehicle which does not 
comply with the applicable standard is a prohibited act.




Sec. 205.160-8  Prohibition of distribution in commerce;
manufacturer's remedy.

    (a) The Administrator will permit the manufacturer to cease testing 
under Sec. 205.160-7 after the manufacturer has taken the following 
actions:
    (1) Submission of a written report to the Administrator which 
identifies the reason for the noncompliance of the vehicles, describes 
the problem and/or quality control or quality assurance remedies to be 
taken by the manufacturer to correct the problem.
    (2) Demonstration that the specified vehicle category, configuration 
or configuration subgroup has passed a retest conducted in accordance 
with Sec. 205.160, and the conditions specified in the test request.
    (b) The manufacturer may begin testing under paragraph (a)(2) of 
this section upon submitting the report required by paragraph (a)(1) of 
this section, and may cease continued testing upon making the 
demonstration required by paragraph (a)(2) of this section. The 
Administrator may require resumption of continued testing if he 
determines that the manufacturer has not satisfied the requirements of 
paragraphs (a)(1) and (2) of this section.
    (c) Any vehicle failing the prescribed noise emission tests 
conducted pursuant to appendix I may not be distributed in commerce 
until necessary adjustments or repairs have been made and the vehicle 
passes a retest.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57721, Dec. 28, 1982]



Sec. 205.162  In-use requirements.



Sec. 205.162-1  Warranty.

    (a) The vehicle manufacturer who is required to production verify 
under this subpart must include in the owner's manual or in other 
information supplied to the ultimate purchaser the following statement:

    NOISE EMISSIONS WARRANTY [RESERVED]

    (b) [Reserved]

[45 FR 86708, Dec. 31, 1980, as amended at 48 FR 27040, June 13, 1983]



Sec. 205.162-2  Tampering.

    (a) For each configuration of vehicles covered by this part, the 
manufacturer shall develop a list of acts which, in his judgment, 
constitute the removal or rendering totally or partially inoperative, 
other than for purposes of maintenance, repair, or replacement of noise 
control devices or elements of design of the vehicle.
    (b) The manufacturer shall include in the owner's manual the 
following information:
    (1) The statement:

             Tampering With Noise Control System Prohibited

    Federal law prohibits the following acts or causing thereof:
    (1) The removal or rendering inoperative by any person other than 
for purposes of maintenance, repair, or replacement, of any device or 
element of design incorporated into any new vehicle for the purpose of 
noise control prior to its sale or delivery to the ultimate purchaser or 
while it is in use, or (2) the use of the vehicle after such device or 
element of design has been removed or rendered inoperative by any 
person.

    (2) The statement:

    Among those acts presumed to constitute tampering are the acts 
listed below.


Immediately following this statement, the manufacturer must include the 
list developed under paragraph (a) of this section.

[[Page 143]]

    (c) Any act included in the list prepared pursuant to paragraph (a) 
of this section is presumed to constitute tampering; however, in any 
case in which a presumed act of tampering has been committed and it can 
be shown that such act resulted in no increase in the noise level of the 
vehicle or that the vehicle still meets the noise emission standard of 
Sec. 205.152, the act will not constitute tampering.
    (d) The provisions of this section are not intended to preclude any 
State or local jurisdiction from adopting and enforcing its own 
prohibitions against the removal or rendering inoperative of noise 
control systems on vehicles subject to this part.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57721, Dec. 28, 1982]



Sec. 205.162-3  Instructions for maintenance, use, and repair.

    (a)(1) The manufacturer must provide to the purchaser of each 
vehicle covered by this subpart written instructions for the proper 
maintenance, use, and repair of the vehicle in order to provide 
reasonable assurance of the elimination or minimization of noise 
emission degradation throughout the life of the vehicle.
    (2) The purpose of the instructions is to inform purchasers and 
mechanics of the acts necessary to reasonably assure that degradation of 
noise emission level is eliminated or minimized during the life of the 
vehicle. Manufacturers shall prepare the instructions with this purpose 
in mind. The instructions shall be clear and, to the extent practicable, 
written in non-technical language.
    (3) The instructions must not be used to secure an unfair 
competitive advantage. They shall not restrict replacement equipment to 
original equipment or restrict service to dealer service unless such 
manufacturer makes public the performance specifications on such 
equipment.
    (b) For the purpose of encouraging proper maintenance, the 
manufacturer must provide a record or log book which shall contain a 
schedule for the performance of all required noise emission control 
maintenance. Space must be provided in this record book so that the 
purchaser can note what maintenance was done, by whom, where, and when.

[45 FR 86708, Dec. 31, 1980, as amended at 47 FR 57722, Dec. 28, 1982]



Sec. 205.163  Recall of noncomplying motorcycles; relabeling of mislabeled
motorcycles.

    (a) Pursuant to section 11(d)(1) of the Act, the Administrator may 
issue an order to the manufacturer to recall, repair, modify, or relabel 
any vehicles distributed in commerce which are not in compliance with 
this subpart.
    (b) A recall order issued under this section shall be based upon a 
determination by the Administrator that vehicles of a specified 
category, configuration, or class which do not conform to the 
regulations or are improperly labeled have been distributed in commerce. 
This determination may be based on: (1) A technical analysis of the 
noise emission characteristics of the category, configuration, or class 
in question; or (2) any other relevant information, including test data.
    (c) For the purpose of this section, noise emissions are to be 
measured by the appropriate test procedure prescribed in appendix I 
prior to sale or any other test which has been demonstrated to correlate 
with the prescribed test procedure in accordance with Sec. 205.154.
    (d) Any order to recall shall be issued only after notice and an 
opportunity for a hearing.
    (e) All cost, including labor and parts, associated with the recall 
and repair or modification of noncomplying vehicles and relabeling of 
mislabeled vehicles under this section shall be borne by the 
manufacturer.
    (f) This section shall not limit the discretion of the Administrator 
to take any other actions which are authorized by the Act.



  Sec. Appendix I to Subparts D and E--Motorcycle Noise Emission Test 
                            Procedures [Note]

    Editorial Note: The text of appendix I follows subpart E.

[[Page 144]]



                  Subpart E_Motorcycle Exhaust Systems

    Authority: Sec. 6 of the Noise Control Act (42 U.S.C. 4905).

    Source: 45 FR 86718, Dec. 31, 1980, unless otherwise noted.



Sec. 205.164  Applicability.

    (a) Except as otherwise provided in these regulations, the 
provisions of this subpart apply to any motorcycle replacement exhaust 
system or motorcycle replacement exhaust system component which:
    (1) Meets the definition of the term ``new product'' in the Act; and
    (2) Is designed and marketed for use on any motorcycle subject to 
the provisions of subpart D of this part.
    (b) The provisions of Sec. 205.169 additionally apply to the 
motorcycle exhaust systems originally installed on vehicles subject to 
the requirements of subpart D of this part.
    (c) The provisions of Sec. 205.169(d)(3) additionally apply to 
motorcycle replacement exhaust systems manufactured after January 1, 
1983 that are designed and marketed for use on motorcycles manufactured 
before January 1, 1983.
    (d) Except as provided for in Sec. 205.169, the provisions of this 
subpart do not apply to exhaust systems which are designed and marketed 
solely for use on competition motorcycles as defined in Sec. 
205.151(a)(3).
    (e) The provisions of the subpart do not apply to exhaust header 
pipes sold as separate products.



Sec. 205.165  Definitions.

    (a) As used in this subpart, all terms not defined herein have the 
meaning given them in subpart D of this part or in the Act.
    (1) Category means a group of exhaust systems which are identical in 
all material aspects with respect to the parameters listed in Sec. 
205.168 of this subpart.
    (2) Exhaust header pipe means any tube of constant diameter which 
conducts exhaust gas from an engine exhaust port to other exhaust system 
components which provide noise attenuation. Tubes with cross connections 
or internal baffling are not considered to be ``exhaust header pipes.''
    (3) Failing exhaust system means that, when installed on any 
Federally regulated motorcycle for which it is designed and marketed, 
that motorcycle and exhaust system exceed the applicable standards.
    (4) Federally regulated motorcycle means, for the purpose of this 
subpart, any motorcyle subject to the noise standards of subpart D of 
this part.
    (5) Federal standards means, for the purpose of this subpart, the 
standards specified in Sec. 205.152(a)(1), (2) and (3).
    (6) [Reserved]
    (7) Stock configuration means that no modifications have been made 
to the orginal equipment motorcycle that would affect the noise 
emissions of the vehicle when measured according to the acceleration 
test procedure.
    (8) Test exhaust system means an exhaust system in Selective 
Enforcement Audit test sample.
    (b) [Reserved]

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57722, Dec. 28, 1982]



Sec. 205.166  Noise emission standards.

    (a) Noise emission standards. (1) Exhaust systems and exhaust system 
components that are designed and marketed for use on any Federally 
regulated street motorcycle of the following and subsequent model years 
must be designed and built so that when installed on any such motorcycle 
which is in compliance with the requirements of subpart D of this part, 
they will not cause that motorcycle to produce noise emissions in excess 
of the levels indicated:
    (i) Systems designed and marketed for use on street motorcycles 
other than those that meet the definition of Sec. 205.151(a)(2)(ii):

------------------------------------------------------------------------
                                                              A-weighted
                    Motorcycle model year                        noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          83
(B) 1986....................................................          80
------------------------------------------------------------------------

    (ii) Systems designed and marketed for street motorcycles that meet 
the definition of Sec. 205.151(a)(2)(ii) (moped-type street 
motorcycles):

[[Page 145]]



------------------------------------------------------------------------
                                                              A-weighted
                    Motorcycle model year                        noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          70
------------------------------------------------------------------------

    (2) Exhaust systems and exhaust system components that are designed 
and marketed for use on any Federally regulated off-road motorcycle of 
the following and subsequent model years must be designed and built so 
that, at the time of sale, when installed on any such motorcycle which 
is in compliance with the requirements of subpart D of this part, they 
will not cause that motorcycle to produce noise emissions in excess of 
the levels indicated:
    (i) Systems designed and marketed for use on off-road motorcycles 
with engine displacements of 170 cc and lower:

------------------------------------------------------------------------
                                                              A-weighted
                    Motorcycle model year                        noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          83
(B) 1986....................................................          80
------------------------------------------------------------------------

    (ii) Systems designed and marketed for use on off-road motorcycles 
with engine displacements greater than 170 cc:

------------------------------------------------------------------------
                                                              A-weighted
                    Motorcycle model year                        noise
                                                              level (dB)
------------------------------------------------------------------------
(A) 1983....................................................          86
(B) 1986....................................................          82
------------------------------------------------------------------------

    (3) Exhaust systems and exhaust system components that are designed 
and marketed for use on any Federally regulated street motorcycle shall 
be designed and built so that, when installed on any such motorcycle 
which is in compliance with the requirements of subpart D of this part, 
and when both the motorcycle and the exhaust system are properly 
maintained and used, they will not cause that motorcycle to produce 
noise emissions in excess of the levels specified in paragraph (a)(1) of 
this section, for an Acoustical Assurance Period of one year or a 
distance of 6000 km (3729 mi) after the time of sale to the ultimate 
purchaser, whichever occurs first.
    (4) Exhaust systems and exhaust system components that are designed 
and marketed for use on any Federally regulated off-road motorcycle must 
be designed and built so that, when installed on any such motorcycle 
which is in compliance with the requirements of subpart D of this part, 
and when both the motorcycle and the exhaust system are properly 
maintained and used, they will not cause that motorcycle to produce 
noise emissions in excess of the levels specified in paragraph (a)(2) of 
this section, for an Acoustical Assurance Period of one year or a 
distance of 3000 km (1865 mi) after the time of sale to the ultimate 
purchaser, whichever occurs first.
    (5) At the time of sale to the ultimate purchaser all products must 
comply with the standards set forth in paragraphs (a) (1) and (2) of 
this section.
    (b) Measurement procedure. (1)(i) The standards set forth in 
paragraph (a) of this section refer to the noise emissions as measured 
in accordance with the measurement methodology specified in appendix I-1 
for all motorcycles except those street motorcycles meeting the 
definition of Sec. 205.151(a)(2)(ii). Exhaust systems which alter a 
motorcycle's maximum rated RPM shall be tested using the unmodified 
motorcycle's maximum rated RPM to determine closing RPM or test RPM.
    (ii) The standards set forth in paragraph (a) of this section for 
street motorcycles meeting the definition of Sec. 205.151(a)(2)(ii) 
(moped-type street motorcycles) refer to noise emissions measured in 
accordance with the measurement methodology specified in appendix I-2.
    (2) Exhaust system components sold as separate products shall be 
tested as part of a system made up of that part and original equipment 
components to complete the system.
    (3) Exhaust system components sold as separate products which are 
incompatible with original equipment components necessary to make a 
complete exhaust system, or which would not meet standards as prescribed 
in this subpart in such configuration, may be tested with non-original 
equipment components provided that the provisions of Sec. 
205.169(e)(1)(ii)(B) are carried out.

[[Page 146]]



Sec. 205.167  Consideration of alternative test procedures.

    The Administrator may approve applications from manufacturers of 
original equipment and replacement exhaust systems for the approval of 
test procedures which differ from those contained in this subpart so 
long as the alternative procedures have been demonstrated to correlate 
with the prescribed procedure. To be acceptable, alternative test 
procedures must be such that the test results obtained will identify all 
those test exhaust systems which would not comply with the noise 
emission standards prescribed in Sec. 205.166 when tested in accordance 
with the measurement methodology specified in appendix I. After approval 
by the Administrator, testing conducted by manufacturers using 
alternative test procedures may be accepted by the Administrator for all 
purposes including, but not limited to, production verification testing 
and selective enforcement audit testing.



Sec. 205.168  Requirements.



Sec. 205.168-1  General requirements.

    (a) Each manufacturer of motorcycle exhaust systems manufactured for 
Federally regulated motorcycles and distributed in commerce in the 
United States which are subject to the noise emission standards 
prescribed in this subpart and not exempted in accordance with subpart 
A, Sec. 205.5:
    (1) Must label each exhaust system in accordance with the 
requirements of Sec. 205.169 of this subpart; and
    (2) Must only manufacture exhaust systems which conform to the 
applicable noise emission standard established in Sec. 205.166 of this 
regulation when installed on any Federally regulated motorcycle for 
which it has been designed and marketed.
    (b) The manufacturer who is required to conduct testing to 
demonstrate compliance with a particular standard must satisfy all other 
provisions of this subpart applicable to that standard.
    (c) Prior to distribution into commerce of exhaust systems of a 
specific category, the manufacturer of the exhaust system shall verify 
the category in accordance with this subpart.
    (1) Not withstanding paragraph (a)(1) of this section, the 
manufacturer may distribute in commerce exhaust systems of that category 
for up to 90 days if weather or other conditions beyond the control of 
the manufacturer make testing of a category impossible and if the 
following conditions are met:
    (i) The manufacturer performs the tests required under paragraph (d) 
or (e) of this section on such category as soon as conditions permit;
    (ii) [Reserved]
    (d) The requirements for each exhaust system category consist of:
    (1) Testing in accordance with Sec. 205.171-1 of an exhaust system 
selected in accordance with Sec. 205.171-2.
    (2) Compliance of the test exhaust system on a motorcycle for which 
it is marketed with the applicable standard when tested in accordance 
with appendix I; and
    (e) A manufacturer is required to verify all categories of exhaust 
systems within his product line for each class of Federally regulated 
motorcycle for which it is designed and marketed. A category of a 
replacement exhaust system is defined by a separate combination of at 
least the following parameters:
    (1) Muffler/Silencer: (i) Volume; (ii) type of absorption material; 
(iii) amount of absorption material; (iv) length; (v) diameter; (vi) 
directional flow of exhaust gas; (vii) interior construction; (viii) 
shell and inner construction material; (ix) number of header pipes 
entering muffler; and (x) specific motorcycle application.
    (2) Expansion Chamber: (i) Volume; (ii) diameter; (iii) construction 
material; (iv) directional flow of exhaust gas; (v) length; and (vi) 
specific motorcycle application.
    (3) Spark Arrestors: (i) Volume; (ii) construction material; (iii) 
directional flow of exhaust gas; (iv) length; (v) diameter, and (vi) 
specific motorcycle application.
    (4) Other Exhaust System Components: (i) Volume; (ii) shape; (iii) 
length; (iv) diameter; (v) material; (vi) directional flow of exhaust 
gas; and (vii) specific motorcycle application.
    (f) Exhaust system components sold as separate products shall be 
tested pursuant to Sec. 205.166(b).

[[Page 147]]

    (g) Original equipment exhaust systems that are also sold as 
replacement systems for the same motorcycle configuration need not be 
tested under this subpart if they have been tested or represented in a 
test report under subpart D of this part.
    (h) A manufacturer has the following alternatives if any test 
exhaust system is determined not to be in compliance with applicable 
standards:
    (i) Modify the test exhaust system and demonstrate by testing that 
it meets applicable standards. The manufacturer must modify all 
production exhaust systems of the same category in the same manner as 
the test exhaust system before distribution in commerce.

[47 FR 57722, Dec. 28, 1982; 48 FR 27040, June 13, 1983]



Sec. 205.168-11  Order to cease distribution.

    (a) If a category of exhaust systems is found not to comply with 
this subpart because it has not been verified or labeled as required by 
Sec. 205.169, the Administrator may issue an order to the manufacturer 
to cease distribution in commerce exhaust systems of that category. This 
order will not be issued if the manufacturer has made a good faith 
attempt to properly production verify the category and can establish 
such good faith.
    (b) Any such order shall be issued after notice and opportunity for 
a hearing which will be held in accordance with title 5 U.S.C. 554.

[45 FR 86718, Dec. 31, 1980, as amended at 48 FR 27040, June 13, 1983]



Sec. 205.169  Labeling requirements.

    (a) The manufacturer of any product (including the manufacturer of 
newly produced motorcycles) subject to this subpart must, at the time of 
manufacture, affix a permanent, legible label, or mark of the type and 
in the manner described below, containing the information provided 
below, to all such exhaust systems or exhaust system components to be 
distributed in commerce.
    (b) The labels or marks shall be affixed in such a manner that they 
cannot be removed without destroying or defacing them, and must not be 
applied to any part which is easily detached from such product.
    (c) The label or mark shall be in a readily visible position when 
the exhaust system or exhaust system component is installed on all 
motorcycles for which it is designed and marketed.
    (d) All required language shall be lettered in the English language 
in block letters and numerals in a color that contrasts with its 
background.
    (e) The label or mark must contain the following information:
    (1) For exhaust systems subject to the noise emission standards of 
Sec. 205.166:
    (i) The label heading: Motorcycle Exhaust System Noise Emission 
Control Information;
    (ii)(A) For original equipment and replacement exhaust system, the 
following statement:

    This (manufacturer's name) exhaust system (serial number) meets EPA 
noise emission requirements of (noise emission standard) dBA for the 
following motorcycles: (list of model specific codes). Installation of 
this exhaust system on motorcycle models not specified may violate 
Federal law.

    (B) For exhaust system components designed and marketed for 
motorcycles, and tested in accordance with Sec. 205.168 as a 
constituent of a complete exhaust system comprising non-original 
equipment components (other than itself), as provided for in Sec. 
205.166(b)(3), the following statement:

    This (manufacturer's name) (type of component) (serial number), when 
installed with a legal (type of component), meets EPA noise emission 
requirements of (noise emission standard) dBA for the following 
motorcycles: (list of model specific codes). Installation of this 
exhaust system components on motorcycle models not specified may violate 
Federal law.

    (iii) The model specific code must be the same as used by the motor 
cycle manufacturer and described in Sec. 205.158(a)(6).
    (2) For exhaust systems designed solely for use on competition 
motorcycles (as defined by Sec. 205.151(a)(3) and so designated and 
labeled by the manufacturer), the statement:

    This product is designed for use on closed course competition 
motorcycles only and does not conform to U.S. EPA noise emission 
standards. Used on motorcycles subject to

[[Page 148]]

EPA noise regulations constitutes tampering and is a violation of 
Federal law unless it can be shown that such use does not cause the 
motorcycle to exceed applicable Federal standards.

    (3) For exhaust systems designed solely for use on motorcyles 
manufactured before January 1, 1982, the statement:

    This product is designed for use on pre-1982 model year motorcycles 
only and does not conform to U.S. EPA noise emission standards. Use on 
motorcycles subject to EPA noise regulations constitutes tampering and 
is a violation of Federal law unless it can be shown that such use does 
not cause the motorcycle to exceed applicable Federal standards.

    (4) For replacement exhaust systems manufactured in the United 
States solely for use outside the U.S. and not conforming to the noise 
emissions standards of this regulation, the statement: ``For Export 
Only.''

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57722, Dec. 28, 1982]



Sec. 205.170  Testing by the Administrator.

    (a)(1) In order for the Administrator to determine whether such 
exhaust systems or a manufacturer's test facility conform to applicable 
regulations, the Administrator may require that exhaust systems to be 
tested pursuant to the Act be submitted to him, at such place and time 
as he reasonably designates. He may designate the quantity of exhaust 
systems and the duration of time he reasonably requires for the purpose 
of conducting tests in accordance with test procedures described in 
appendix I. The manner in which the Administrator conducts such tests, 
the EPA test facility, and the test procedures employed will be based 
upon good engineering practice and meet or exceed the requirements of 
appendix I.
    (2) If the Administrator specifies that he will conduct such testing 
at the manufacturer's facility, the manufacturer shall make available 
instrumentation and equipment of the type required for test operators by 
these regulations. The Administrator may conduct such tests with his own 
equipment, having specifications equal to or exceeding the performance 
specifications of the instrumentation and equipment required in these 
regulations.
    (3) The manufacturer may observe tests conducted by the 
Administrator pursuant to this section on exhaust systems produced by 
the manufacturer and may copy the data accumulated from such tests. The 
manufacturer may inspect any of the exhaust systems before and after 
testing by the Administrator.
    (b)(1) If, based on tests conducted by the Administrator or on other 
relevant information, the Administrator determines that the test 
facility does not meet the requirements of appendix I or the 
requirements for an alternative test procedure approved under Sec. 
205.154, the Administrator will give notice to the manufacturer in 
writing of his determination and the reasons underlying it.
    (2) The manufacturer may, at any time within 15 days after receipt 
of a notice issued under paragraph (b)(1) of this section, request a 
hearing conducted in accordance with 5 U.S.C. 554 on the issue of 
whether his test facility met the requirements. Such notice will not 
take effect until 15 days after its receipt by the manufacturer, or, if 
a hearing is requested under this paragraph, until adjudication by the 
administrative law judge.
    (3) After any notice issued under paragraph (b)(1) of this section 
has taken effect, no data thereafter derived from that test facility 
will be acceptable for purposes of this subpart.
    (4) The manufacturer may request in writing that the Administrator 
reconsider his determination under paragraph (b)(1) of this section 
based on data or information which indicates that changes have been made 
to the test facility and that such changes have resolved the reasons for 
disqualification.
    (5) Within 10 working days after receipt of the manufacturer's 
request for reconsideration pursuant to paragraph (b)(4) of this 
section, the Administrator will notify the manufacturer of his 
determination and the reasons underlying it with regard to the re quali 
fi ca tion of the test facility.
    (c) The Administrator will assume all reasonable costs associated 
with shipment of exhaust systems to the place designated pursuant to 
paragraph (a) of this section except with respect to:

[[Page 149]]

    (1) [Reserved]
    (2) Testing of a reasonable number of exhaust systems (i) for 
purposes of selective enforcement auditing under Sec. 205.171, or (ii) 
if the manufacturer has failed to establish that there is a correlation 
between its test facility and the EPA test facility, or (iii) the 
Administrator has reason to believe, and provides the manufacturer with 
a statement of such reason, that the exhaust systems to be tested would 
fail to meet the standard prescribed in this subpart if tested at the 
EPA test facility, even though they would meet such standard if tested 
at the manufacturer's test facility;
    (3) Any testing performed during a period when a notice of non- 
conformance of the manufacturer's test facility issued pursuant to 
paragraph (b) of this section is in effect;
    (4) Any testing performed at a place other than the manufacturer's 
facility as a result of the manufacturer's failure to permit the 
Administrator to conduct or monitor testing as required by this subpart; 
and
    (5) In addition to any exhaust systems included in paragraphs (c) 
(2), (3), or (4) of this section, testing of up to 10 percent of the 
manufacturer's exhaust systems for a model year if the Administrator 
determines testing these exhaust systems at the EPA test site is 
necessary to assure that a manufacturer has acted or is acting in 
compliance with the Act.

(Secs. 11 and 13 of the Noise Control Act (42 U.S.C. 4910, 4912); 42 
U.S.C. 4905; 86 Stat. 1237 and secs. 6, 10, 11, 13, Pub. L. 92-574, 86 
Stat. 1234 (42 U.S.C. 4905, 4909, 4910, 4912))

[45 FR 86718, Dec. 31, 1980; 46 FR 4918, Jan. 19, 1981, as amended at 47 
FR 57722, Dec. 28, 1982; 49 FR 26738, June 29, 1984]



Sec. 205.171  Selective enforcement auditing (SEA) requirements.



Sec. 205.171-1  Test request.

    (a) The Administrator will request all testing under Sec. 205.171 
by means of a test request addressed to the manufacturer.
    (b) The test request will be signed by the Assistant Administrator 
for Enforcement or his designee. The test request will be delivered to 
the plant manager or other responsible official as designated by the 
manufacturer.
    (c) The test request will specify the exhaust system category, model 
and model year of motorcycle selected for testing, the manufacturer's 
plant or storage facility from which the exhaust systems must be 
selected, the method of selection and the time at which the exhaust 
systems must be selected. The test request will also provide for 
situations in which the selected exhaust system is unavailable for 
testing. The test request may include an alternative exhaust system 
category designated for testing in the event that exhaust systems of the 
first specified category are not available for testing because the 
exhaust systems are not being manufactured at the specified plant or are 
not being manufactured during the specified time or are not being stored 
at the specified plant or storage facility.
    (d)(1) If the manufacturer projects a yearly production of fewer 
than 50 exhaust systems of the specified category to be tested, then, 
within five (5) days of receipt of the request, the manufacturer must 
notify the Administrator of such low volume production. The 
Administrator will then provide a revised test request specifying a 
testing plan which imposes no greater risk of failure (5%) at the 
acceptable quality level (10%) than the plan in appendix II. Upon 
receipt of the revised test request, the manufacturer must select and 
test a sample of exhaust systems from the category specified in the test 
request in accordance with this subpart and the conditions specified in 
the test request.
    (2) If the manufacturer produces 50 or more of the specified 
category, then, upon receipt of the test request, the manufacturer must 
select and test a sample of exhaust systems for the category specified 
in the test request in accordance with this subpart and the conditions 
specified in the test request.
    (e)(1) Any testing conducted by the manufacturer under a test 
request must be initiated within the time period specified in the test 
request; except that initiation may be delayed for increments of 24 
hours or one business day where ambient test site weather conditions, or 
other conditions beyond

[[Page 150]]

the control of the manufacturer, in that 24-hour period do not permit 
testing. The manufacturer must record the conditions for this period.
    (2) The manufacturer must complete noise emission testing on a 
minimum of ten exhaust systems per day unless otherwise provided by the 
Administrator or unless ambient test site conditions permit only the 
testing of a lesser number, in which event the ambient test site weather 
conditions for that period must be recorded.
    (3) The manufacturer is allowed 24 hours to ship exhaust systems 
from a sample from the assembly plant to the testing facility if the 
facility is not located at the plant or in close proximity to the plant. 
The Administrator may approve more time based upon a request by the 
manufacturer accompanied by a satisfactory justification.
    (f) The Administrator may issue an order to the manufacturer to 
cease distribution in commerce of exhaust systems of a specified 
category being manufactured at a particular facility if:
    (1) The manufacturer refuses to comply with the provisions of a test 
request issued by the Administrator under this section; or
    (2) The manufacturer refuses to comply with any of the requirements 
of this section.
    (g) A cease distribution order will not be issued under paragraph 
(f) of this section if the manufacturer's refusal is caused by 
conditions and circumstances outside his control which render compliance 
with the provisions of a test request or with any other requirements of 
this section impossible. Conditions and circumstances outside the 
control of the manufacturer include, but are not limited to, the 
temporary unavailability of equipment and personnel needed to conduct 
the required tests, caused by uncontrollable factors such as equipment 
breakdown or failure or illness of personnel. Failure of the 
manufacturer to adequately plan for and provide the equipment and 
personnel needed to conduct the tests does not constitute uncontrollable 
factors. The manufacturer must bear the burden of establishing the 
presence of the conditions and circumstances required by this paragraph.
    (h) Any order to cease distribution will be issued only after notice 
and opportunity for a hearing in accordance with 5 U.S.C. 554.



Sec. 205.171-2  Test exhaust system sample selection and preparation.

    (a)(1) Exhaust systems comprising the sample which are required to 
be tested under a test request in accordance with this subpart must be 
selected consecutively as they are produced.
    (2) Test motorcycles and test exhaust systems to be used for testing 
of exhaust systems must be of the subject class which has been assembled 
using the manufacturer's normal production processes, in stock 
configuration including exhaust system, as sold or offered for sale in 
commerce.
    (3) Before the official test, the test motorcycle and test exhaust 
system must not be prepared, tested, modified, adjusted, or maintained 
in any manner unless such preparation, tests, modifications, adjustments 
or maintenance are part of the original equipment manufacturer's 
prescribed manufacturing and inspection procedures, and are documented 
in the manufacturer's internal motorcycle assembly and inspection 
procedures, or are required or permitted under this subpart, or are 
approved in advance by the Administrator.
    (4) Equipment or fixtures necessary to conduct the test may be 
installed on the motorcycle, if such equipment or fixtures shall have no 
effect on the noise emissions of the motorcycle as determined by the 
measurement methodology.
    (5) In the event of a motorcycle malfunction (i.e., failure to 
start, etc.) maintenance that is necessary may be performed to enable 
the vehicle to operate in a normal manner. This maintenance must be 
documented and reported in the final report pre pared and submitted in 
accordance with this subpart.
    (6) No quality control, quality assurance testing, assembly or 
selection procedures may be used on the test vehicle or any portion 
thereof, including parts and subassemblies, that will not normally be 
used during the production and assembly of all other motorcycles of that 
class which will be distributed

[[Page 151]]

in commerce, unless such procedures are required or permitted under this 
subpart or are approved in advance by the Administrator.
    (b) The Acceptable Quality Level (AQL) is 10 percent. The 
appropriate sampling plans associated with the designated AQL are 
contained in appendix II or the test request.
    (c) The exhaust systems of the category selected for testing must be 
assembled by the manufacturer for distribution in commerce using the 
manufacturer's normal production process.
    (d) Unless otherwise indicated in the test request, the manufacturer 
must initiate testing with the exhaust systems of the category specified 
in the test request which are next scheduled for production after 
receipt of the test request.
    (e) The manufacturer must keep on hand all products in the test 
sample until the sample is accepted or rejected in accordance with Sec. 
205.171-8; except that exhaust systems actually tested and found to be 
in conformance with this regulation need not be kept.

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57723, Dec. 28, 1982]



Sec. 205.171-3  Test motorcycle sample selection.

    A test motorcycle to be used for selective enforcement audit testing 
of exhaust systems must be a motorcycle of the subject class which has 
been assembled using the manufacturer's normal production process, in 
stock configuration including exhaust system, and sold or offered for 
sale in commerce.



Sec. 205.171-6  Testing procedures.

    (a) The manufacturer of the exhaust system must conduct one valid 
test in accordance with the appropriate test procedure specified in 
appendix I for each exhaust system selected for testing under this 
subpart.
    (b) No maintenance may be performed on the test exhaust system 
except as provided by Sec. 205.171-2. In the event an exhaust system is 
unable to complete the noise emission test, the manufacturer may replace 
the exhaust system. Any replacement exhaust system must be a production 
exhaust system of the same category as the exhaust system which it 
replaced, and it is subject to all the provisions of this subpart.

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57723, Dec. 28, 1982]



Sec. 205.171-7  Reporting of the test results.

    (a)(1) The manufacturer must submit a copy of the test report for 
all testing conducted pursuant to Sec. 205.171 at the conclusion of 
each 24-hour period during which testing is done.
    (2) For each test conducted, the manufacturer must provide the 
following information:
    (i) Category identification where applicable;
    (ii) Year, manufacturing date, serial number and model of exhaust 
system;
    (iii) Year, make serial number, and model of test motorcycle; and
    (iv) Test results by serial numbers.
    (b) In the case where an EPA Enforcement Officer is present during 
testing required by this subpart, the written reports requested in 
paragraph (a) of this section may be given directly to the Enforcement 
Officer.
    (c) Within 5 days after completion of an SEA, the manufacturer must 
submit to the Administrator a final report which will include the 
following:
    (1) The name, location, and description of the manufacturer's noise 
emission test facilities which meet the specifications of appendix I and 
where utilized to conduct testing reported under this section, except, 
that a test facility that has been described in a previous submission 
under this subpart need not again be described, but must be identified 
as that facility.
    (2) The following information for each noise emission test 
conducted:
    (i) The individual records required by Sec. 205.172 (a)(2) for all 
noise emission tests including for each invalid test, the reason for 
invalidation;
    (ii) A complete description of any modification, repair, 
preparation, maintenance, or testing, which could affect the noise 
emissions of the product and which was performed on the test exhaust 
system but not performed on all other production exhaust systems;
    (iii) The test results for any replacement exhaust system and the 
reason for its replacement.

[[Page 152]]

    (3) A complete description of the sound data acquisition system if 
other than that specified in appendix I.
    (4) The following statement and endorsement:

    This report is submitted pursuant to section 6 and section 13 of the 
Noise Control Act of 1972. To the best of (company name) knowledge, all 
testing for which data is reported here was conducted in strict 
conformance with applicable regulations under 40 CFR Part 205 et seq., 
all the data reported here are a true and accurate representation of 
such testing, and all other information reported here is true and 
accurate. I am aware of the penalties associated with vio la tions of 
the Noise Control Act of 1972 and the regulations thereunder. 
(authorized rep re senta tive).

    (5) Additional information required by the test request.
    (d) Information required to be submitted to the Administrator under 
this section must be sent to the following address: Director, Noise and 
Radiation Enforcement Division, (EN-387), U.S. Environmental Protection 
Agency, Washington, DC 20460.



Sec. 205.171-8  Passing or failing under SEA.

    (a) A failing exhaust system is one which, when installed on any 
motorcycle which is in compliance with the requirements of subpart D and 
for which it is designed and marketed, together with such motorcycle 
produces a measured noise level in excess of the applicable noise 
emission standard in Sec. 205.166.
    (b) The number of failing vehicles in a sample determines whether 
the sample passes or fails (See applicable tables in appendix II). If 
the number of failing vehicles is greater than or equal to the number in 
Column B, the sample fails. If the number of failing vehicles is less 
than or equal to the number in Column A, the sample passes.
    (c) Pass or failure of a SEA takes place when a decision that an 
exhaust system is a passing or failing unit is made on the last exhaust 
system required to make a decision under paragraph (b) of this section.
    (d) If the manufacturer passes the SEA, he will not be required to 
perform any additional testing on subsequent exhaust systems to satisfy 
the test request.
    (e) The Administrator may terminate testing earlier than required in 
paragraph (b) of this section, based on a request by the manufacturer, 
accompanied by voluntarily ceasing distribution in commerce of exhaust 
systems from the category in question, manufactured at the plant which 
produced the exhaust systems being tested. Before reinitiating 
distribution in commerce of that exhaust system category from that 
plant, the manufacturer must take the action described in Sec. 205.171-
10(a)(1) and (2).



Sec. 205.171-9  Continued testing.

    (a) If an SEA failure occurs according to paragraph (b) of Sec. 
205.171-8, the Administrator may require that any or all exhaust systems 
of that category produced at that plant be tested before distribution in 
commerce.
    (b) The Administrator will notify the manufacturer in writing of his 
intent to require continued testing of exhaust systems under paragraph 
(a) of this section.
    (c) The manufacturer may request a hearing on the issues of whether 
the SEA was conducted properly; whether the criteria for SEA failure 
have been met; and the appropriateness or scope of a continued testing 
order. If a hearing is requested, the hearing will begin no later than 
15 days after the date on which the Administrator received the hearing 
request. Neither the request for a hearing nor the fact that a hearing 
is in progress will affect the responsibility of the manufacturer to 
commence and continue testing required by the Administrator pursuant to 
paragraph (a) of this section.
    (d) Any tested exhaust system which demonstrates conformance with 
the applicable standard may be distributed into commerce.
    (e) Any distribution into commerce of an exhaust system which does 
not comply with the applicable standard is a prohibited act.



Sec. 205.171-10  Prohibition on distribution in commerce;
manufacturer's remedy.

    (a) The Administrator will permit the manufacturer to cease testing 
under Sec. 205.171-9 after the manufacturer has taken the following 
actions:

[[Page 153]]

    (1) Submission of a written report to the Administrator which 
identifies the reason for the noncompliance of the exhaust systems, 
describes the problem and describes the proposed quality control or 
quality assurance remedies to be taken by the manufacturer to correct 
the problem.
    (2) Demonstration that the specified exhaust system category has 
passed a retest conducted in accordance with Sec. 205.171 and the 
conditions specified in the test request.
    (b) The manufacturer may begin testing under paragraph (a)(2) of 
this section upon submitting the report, required by paragraph (a)(1) of 
this section any may cease continued testing upon making the 
demonstration required by paragraph (a)(2) of this section. The 
Administrator may require resumption of continued testing if he 
determines that the manufacturer has not satisfied the requirements of 
paragraphs (a)(1) and (2) of this section.
    (c) Any exhaust system failing the noise emission tests conducted 
pursuant to Appendix I may not be distributed into commerce until 
necessary adjustment or repairs have been made and the exhaust system 
passes a retest.

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57723, Dec. 28, 1982]



Sec. 205.172  Maintenance of records; submittal of information.

    (a) Except as otherwise provided in regulation, the manufacturer of 
any new exhaust system subject to any of the standards or procedures 
prescribed in this subpart must establish, maintain and retain the 
following adequately organized and indexed records:
    (1) General records:
    (i) Identification and description by category parameters of all 
exhaust systems in the manufacturer's product line;
    (ii) A description of any procedures other than those contained in 
this subpart used to perform noise emission tests on any test exhaust 
system;
    (iii) A record of the calibration of the acoustical instrumentation 
as is described in appendix I;
    (iv) A record of the date of manufacture of each exhaust system 
subject to this subpart, keyed to the serial number.
    (2) Individual records for test exhaust systems:
    (i) A complete record of all noise emission tests performed for 
Production Verification and Selective Enforcement Audit (except tests 
performed by EPA directly), including all individual worksheets and 
other documentation or exact copies relating to each test;
    (ii) A record of the information recorded as described in Appendix 
I; and
    (iii) A record and description of all repairs, maintenance and other 
servicing which were performed before successful testing of the exhaust 
system pursuant to these regulations and which could affect the noise 
emission of the exhaust system, giving the date and time of the 
maintenance or service, the reason for it, the person authorizing it, 
and the names of supervisory personnel responsible for the conduct of 
the maintenance or service.
    (3) A properly filed production verification report following the 
format prescribed by the Administrator in Sec. 205.168-3 fulfills the 
requirements of paragraphs (a)(1)(i) and (ii) of this section.
    (4) All records required to be maintained under this subpart must be 
retained by the manufacturer for a period of three (3) years from the 
production verification date. Records may be retained as hard copy or 
alternatively reduced to microfilm, punch cards, etc., depending on the 
record retention procedures of the manufacturer; however, when an 
alternative method is used, all information contained in the hard copy 
must be contained in the copy made by the alternative method.
    (b) The manufacturer must, upon request, submit to the Administrator 
the following information with regard to new exhaust system production:
    (1) Number of exhaust systems, by category, scheduled for production 
for the time period designated in the request.
    (2) Number of exhaust systems, by category, produced during the time 
period designated in the request.
    (c) The reporting requirements of this regulation will no longer be 
effective after five (5) years from the last effective date of this 
regulation. However, the requirements will remain in

[[Page 154]]

effect if the Administrator is taking appropriate steps to repromulgate 
or modify the reporting requirements at that time.



Sec. 205.173  In-use requirements.



Sec. 205.173-1  Warranty.

    (a) The exhaust system manufacturer must include in the information 
supplied to the ultimate purchaser pursuant to Sec. 205.173-4, the 
following statement:

                         Noise Emission Warranty

    [The manufacturer] warrants that this exhaust system, at time of 
sale, meets all applicable U.S. E.P.A. Federal noise standards. This 
warranty extends to the first person who buys this exhaust system for 
purposes other than resale, and to all subsequent buyers. Warranty 
claims should be direct to ------. (Manufacturer shall fill in this 
blank with his name, address and telephone number.)

    (b) [Reserved]
    (c) All information must be sent to:

Director, Noise and Radiation Enforcement Division (EN-387), 
Environmental Protection Agency, Washington, DC 20460.

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57723, Dec. 28, 1982]



Sec. 205.173-2  Tampering.

    The manufacturer must include the following statement pursuant to 
Sec. 205.173-4 with each product of that category the manufacturer 
distributes into commerce:

                          Tampering Prohibition

    Federal law prohibits any modification to this exhaust system which 
causes the motorcycle to exceed the Federal noise standard. Use of the 
motorcycle with such a modified exhaust system is also prohibited.
    Acts likely to constitute tampering include removal or puncturing 
the muffler, baffles, header pipes, or any other component which 
conducts exhaust gases.

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57723, Dec. 28, 1982]



Sec. 205.173-3  Warning statement.

    The manufacturer must include the following statement pursuant to 
Sec. 205.173-4 with each product of that category the manufacturer 
distributes into commerce:

    Warning: This product should be checked for repair or replacement if 
the motorcycle noise has increased significantly through use. Otherwise, 
the owner may become subject to penalties under state and local 
ordinances.

[45 FR 86718, Dec. 31, 1980, as amended at 47 FR 57723, Dec. 28, 1982]



Sec. 205.173-4  Information sheet.

    The manufacturer must include the Noise Emissions Warranty 
statement, Tampering Prohibition statement and the Warning statement 
with each product. All three statements must be printed on a white sheet 
or card at least 8\1/2\x11. Each statement must 
cover no more than \1/3\ of the sheet or card. No other printing must be 
on the sheet. The statements must be printed in black ink; the statement 
headings must be in capital letters in a minimum size type of 12 point 
(pica type) or its equal; and the text of the statement must be a 
minimum size type of 10 point (elite type) or its equal. The sheet or 
card must be placed with the exhaust system inside any packaging. If 
there is no packaging, the sheet or card must be affixed to the exhaust 
system so that it will not be accidentally detached in shipping.



Sec. 205.174  Remedial orders.

    The Administrator may issue appropriate remedial orders to a 
manufacturer if products are distributed into commerce not in compliance 
with the regulations of this subpart. Potential orders are stop sale 
orders, orders to cease distribution, relabel, replace or recall, or any 
other orders appropriate in the specific circumstances. A remedial order 
will be issued only after notice and opportunity for a hearing in 
accordance with 5 U.S.C. 554.



   Sec. Appendix I to Subparts D and E of Part 205--Motorcycle Noise 
                        Emission Test Procedures

Appendix I-1 to Subparts D and E--Test Procedure for Street and off-road 
                               Motorcycles

    (a) Instrumentation. Proper usage of all test instrumentation is 
essential to obtain valid measurements. Operating manuals or other 
literature furnished by the instrument manufacturer must be referred to 
for both recommended operation of the instrument

[[Page 155]]

and precautions to be observed. The following instrumentation must be 
used, where applicable:
    (1) A sound level measurement system which meets the type S1A 
requirements of American National Standard Specification for Sound Level 
Meters, ANSI S1.4-1971. As an alternative to making direct measurements 
using a sound level meter, a microphone or sound level meter may be used 
with a magnetic tape recorder and/or a graphic level recorder or 
indicating instrument provided that the system meets the performance 
requirements of ANSI S1.4-1971. The sound level measurement system must 
be calibrated at least annually to insure that the system meets the 
performance requirements of ANSI S1.4-1971.
    (2) An acoustic calibrator with an accuracy of within 0.5 dB. The calibrator must be checked annually to 
verify that its output is within the specified accuracy.
    (3)(i) An engine speed measurement system having the following 
characteristics:
    (A) Steady-state accuracy of within 3% of 
actual engine speed in the range of 45% to 100% of the engine speed 
(RPM) where peak net brake power (maximum rated RPM) is developed; and
    (B) Response characteristics such that, when closing RPM is 
indicated under an acceleration as described below, actual engine speed 
is no more than 3 percent (of closing RPM) greater than the specified 
closing RPM.
    (ii) The vehicle tachometer may be used to ascertain:
    (A) The approach RPM provided it meets the specifications in 
paragraph (a)(3)(i)(A).
    (B) The closing RPM provided it meets the specifications in 
paragraphs (a)(3)(i)(A) and (B).
    (iii) Indirect engine speed measurement systems, such as systems 
which determine engine speed from vehicle speed measurement, may be used 
provided the specifications of paragraph (a)(1)(i) are met.
    (4) An anemometer with steady-state accuracy of within 10% at 20 km/h (12.4 mph).
    (5) A microphone wind screen which does not affect microphone 
response more than 0.5 dB for frequencies of 20-
4000 Hz or 1.0 dB for frequencies of 4000-10,000 
Hz, taking into account the orientation of the microphone.
    (b) Test site. (1) The measurement area within the test site must 
meet the following requirements and be laid out as described:
    (i) The following points must be established:
    (A) Microphone target point--a reference point on the vehicle path;
    (B) End point--a point on the vehicle path 7.5 0.3m (24.6 1.0 ft) beyond the 
microphone target point, and
    (C) Microphone location point--a point 15 0.3m 
(49.2 1.0 ft) from the microphone target point on 
a normal to the vehicle path through the microphone target point.
    (ii) The microphone must be:
    (A) Positioned at the microphone location point 1.2 0.1 m (3.9 0.3 ft) above the 
ground plane; and
    (B) Oriented in a plane perpendicular to the vehicle path, and at an 
angle for which the microphone was calibrated to have the flatest 
response characteristics over the frequency range of 100 Hz to 10,000 Hz 
when measured with respect to the motorcycle source.
    (iii) The surface of the ground within at least the triangular area 
formed by the microphone location and the points 15 0.3m (49.2 1.0 ft.) prior to and 
15 0.3 m (49.2 1.0 ft.) 
beyond the microphone target point must be flat (+ 5 cm (2.0 in)) and 
level (grade not more than 0.5% along vehicle path), have a concrete or 
sealed asphalt surface, and be free from snow, soil or other extraneous 
material.
    (iv) The vehicle path must be relatively smooth and of sufficient 
length for safe acceleration, deceleration and stopping of the 
motorcycle.
    (2) The test site must be flat, open space free of large sound-
reflecting surfaces (other than the ground), such as parked vehicles, 
sign-boards, buildings or hillsides located within a 30 0.3 m (98.4 1.0 ft) radius of the 
microphone location and the following points on the vehicle path (see 
Figure 1):
    (i) The microphone location point;
    (ii) A point 15 0.3 m (49.2 1.0 ft.) before the microphone target point; and
    (iii) A point 15 0.3 m (49.2 1.0 ft) beyond the microphone target point.
    (c) Measurement procedure. (1) To establish the acceleration point, 
the end point must be approached in second gear from the reverse of the 
intended test direction at a constant engine speed of 50% of maximum 
rated RPM or closing RPM less ten percent (of maximum rated RPM), 
whichever is lower, (2.5% of observed reading). 
When the front of the motorcycle reaches the end point (approached from 
the reverse direction), the throttle must be smoothly and fully opened 
to accelerate the motorcycle past the microphone target point under wide 
open throttle. When the motorcycle reaches closing RPM the throttle must 
be smoothly and fully closed. An ignition disable device may be used to 
turn off the engine at closing RPM in lieu of closing the throttle 
manually. The location of the front of the motorcycle at the time of 
throttle closure is the acceleration point for the test runs. The test 
runs must be made in the opposite direction. A sufficient number of 
trial runs must be made to assure accurate establishment of the 
acceleration point.
    (2) Closing RPM must be determined according to the motorcycle 
engine displacement, as follows (see Figure 2):

[[Page 156]]



------------------------------------------------------------------------
                                             Closing RPM (Fraction of
           Displacement (cc)               maximum rated RPM--percent)
------------------------------------------------------------------------
0 to 175...............................  95
176 to 675.............................  109 to 0.08x(engine
                                          displacement in cc)
676 and above..........................  55
------------------------------------------------------------------------

    (3) The distance from the acceleration point to the end point must 
be at least 10 m (32.8 ft). If this distance is less than 10 m (32.8 ft) 
by the procedure specified in paragraph (c)(1), above, third gear, if 
the motorcycle is so equipped, must be used. If the distance is still 
less than 10 m (32.8 ft), fourth gear, if the motorcycle is so equipped, 
must be used, and so on. If closing RPM is reached before the vehicle 
travels 10 m (32.8 ft), with the vehicle in its highest gear, the 
throttle must be opened less rapidly, but in such a manner that full 
throttle and closing RPM are attained at the end point.
    (4) If the motorcycle is equipped with an automatic transmission, 
the procedure specified in paragraph (c)(1), must be followed except 
that the lowest selectable range must be employed, and the procedure 
specified in paragraph (c)(3) must be followed using the next selectable 
higher range, if necessary, and if the vehicle is so equipped. If 
closing RPM is reached before the vehicle travels 10 m (32.8 ft.), the 
throttle must be opened less rapidly, but in such a manner that full 
throttle and closing RPM are attained at the end point.
    (5) Throttle opening must be controlled to avoid excessive wheel 
slip or lift-off.
    (6) To conduct a sound measurement, the motorcycle must proceed 
along the vehicle path in the forward direction in second gear (or 
higher gear as applicable under paragraph (c)(3)) at a constant engine 
speed of 50% of maximum rated RPM or at closing RPM less ten percent (of 
maximum rated RPM), whichever is lower (2.5 
percent of observed reading). When the front of the vehicle reaches the 
acceleration point, the throttle must be smoothly and fully opened. Full 
acceleration must continue until closing RPM is reached, which must 
occur within 1.0 m (3.3 ft.) of the end point, and 
at which time the throttle must be smoothly and fully closed. An 
ignition disable de vice may be used to turn off the engine at clos ing 
RPM in lieu of closing the throttle manually.
    (7) A sufficient number of preliminary runs must be conducted before 
the testing to familiarize the rider with the test procedure and 
operating conditions of the vehicle. The engine temperature must be 
within the normal operating range prior to each run.
    (d) Measurements. (1) The sound level meter must be set for fast 
response and for the A-weighting network. The microphone wind screen 
must be used. The sound level meter must be calibrated with the acoustic 
calibrator as often as is necessary throughout testing to maintain the 
accuracy of the measurement system.
    (2) The sound level meter must be observed throughout the 
acceleration period. The highest sound level obtained for the run must 
be recorded.
    (3) Measurements must be made until at least four readings from each 
side are within 2 dB of each other. The noise level for each side is the 
average of the four which are within 2 dB of each other. The noise level 
reported must be for that side of the motorcycle having the highest 
noise level.
    (4) While making sound level measurements, not more than one person 
other than the rider and the observer reading the meter may be within 15 
m (49.2 ft) of the vehicle or microphone, and that person must be 
directly behind the observer reading the meter, on a line through the 
microphone and the observer.
    (5) The ambient noise level (including wind effects) at the test 
site due to sources other than the motorcycle being measured must be at 
least 10 dB lower than the noise level at the microphone location 
produced by the motorcycle under test.
    (6) Wind speed at the test site during tests must be less than 20 
km/h (12.4 mph).
    (e) Required data. For each valid test, the following data must be 
recorded:
    (1) Motorcycle type, serial number, model year, and date of 
manufacture.
    (2) Names of persons conducting test.
    (3) Test location.
    (4) Wind speed and ambient noise level measured on the same day as 
the test and representative of conditions during the test.
    (5) Motorcycle engine displacement, maximum rated RPM, and closing 
RPM.
    (6) The gear used for testing if other than second gear; or type of 
transmission and description of testing if motorcycle is equipped with 
automatic transmission.
    (7) Description of the sound level meter including type, serial 
number, and calibration date.
    (8) Description of the external acoustic calibrator including type, 
serial number, and calibration date.
    (9) Description of the tachometer or engine speed measurement system 
used for conducting the test.
    (10) Maximum noise level for each pass on each side of the 
motorcycle including invalid readings and reasons for invalidation.
    (11) Reported noise level.
    (12) Other information as appropriate to completely describe testing 
conditions and procedure.

Appendix I-2 to Subparts D and E--Test Procedure for Street Motorcycles 
 That Meet the Definition of Sec. 205.151(a)(2)(ii) (moped-type street 
                              motorcycles)

    (a) Instrumentation. Proper usage of all test instrumentation is 
essential to obtain valid

[[Page 157]]

measurements. Operating manuals or other literature furnished by the 
instrument manufacturer must be referred to for both recommended 
operation of the instrument and precautions to be observed. The 
following instrumentation must be used, where applicable:
    (1) A sound level measurement system which meets the type SIA 
requirements of American National Standard Specification for Sound Level 
Meters, ANSI S1.4-1971. As an alternative to making direct measurements 
using a sound level meter, a microphone or sound level meter may be used 
with a magnetic tape recorder and/or a graphic level recorder or 
indicating instrument provided that the system meets the performance 
requirements of ANSI S1.4-1971. The sound level measurement system must 
be calibrated at least annually to insure that the system meets the 
performance requirements of ANSI S1.4-1971.
    (2) An acoustic calibrator with an accuracy of within 0.5 dB. The calibrator must be checked annually to 
verify that its output is within the specified accuracy.
    (3) An anemometer with steady-state accuracy of within 10% at 20 km/h (12.4 mph).
    (4) A microphone wind screen which does not affect microphone 
response more than 0.5 dB for frequencies of 20-
4000 Hz or 1.0 dB for frequencies of 4000-10,000 
Hz, taking into account the orientation of the microphone.
    (b) Test site. (1) The measurement area within the test site must 
meet the following requirements and be laid out as described:
    (i) The following points must be established:
    (A) Microphone target point--a reference point on the vehicle path;
    (B) End point--a point on the vehicle path 7.5 0.3 m (24.6 1.0 ft) beyond the 
microphone target point; and
    (C) Microphone location point--a point 15 0.3 
m (49.2 1.0 ft) from the microphone target point 
on a normal to the vehicle path through the microphone target point. 
Alternately, the microphone location point may be a point 7.5 0.3 m (24.6 1.0 ft) from the 
microphone target point provided that the sound level reported is 
adjusted as provided in this appendix under paragraph (d)(3).
    (ii) The microphone must be:
    (A) Positioned at the microphone location point 1.2 0.1 m (3.9 0.3 ft) above the 
ground plane; and
    (B) Oriented in a plane perpendicular to the vehicle path, and at an 
angle for which the microphone was calibrated to have the flattest 
response characteristics over the frequency range of 100 Hz to 10,000 Hz 
when measured with respect to the motorcycle source.
    (iii) The surface of the ground within at least the triangular area 
formed by the microphone location and the points 15 0.3 m (49.2 1 ft) prior to and 15 
0.3 m beyond the microphone target point must be 
flat (5 cm (2.0 in)) and level (grade not more 
than 0.5% along vehicle path), have a concrete or sealed asphalt 
surface, and be free from snow, soil or other extraneous material.
    (iv) The vehicle path must be relatively smooth and of sufficient 
length for safe acceleration, deceleration and stopping of the 
motorcycle.
    (2) The test site must be a flat, open space free of large sound-
reflecting surfaces (other than the ground), such as parked vehicles, 
signboards, buildings or hillsides located within a 30 0.3 m (98.4 1.0 ft) radius of the 
microphone location and the following points on the vehicle path (see 
Figure 1):
    (i) The microphone location point;
    (ii) A point 15 0.3 m (49.2 1 ft) before the microphone target point; and
    (iii) A point 15 0.3 m (49.2 1 ft) beyond the microphone target point.
    (c) Measurement procedure. (1) The combined weight of the test rider 
and test equipment used on the motorcycle must not be more than 80 kg 
(176 lb) nor less than 75 kg (165 lb). Weights shall be placed on the 
motorcycle saddle behind the rider to compensate for any difference 
between the actual driver/equipment load and the required 75 kg (165 lb) 
minimum.
    (2) The motorcycle must approach the microphone target point with 
the throttle fully open and in the highest gear. The motorcycle must 
start such that maximum speed is reached before the vehicle is within 
7.5 m of the microphone target point. The motorcycle must continue along 
the vehicle path with fully open throttle and at maximum speed past the 
end point, at which time the throttle must be closed.
    (3) If the motorcycle is equipped with an automatic transmission, 
the procedure of paragraph (1), above, must be followed except that the 
highest selectable range shall be employed.
    (d) Measurements. (1) The sound level meter must be set for fast 
response and for the A-weighting network. The microphone wind screen 
must be used. The sound level meter must be calibrated with the acoustic 
calibrator as often as is necessary throughout testing to maintain the 
accuracy of the measurement system.
    (2) The sound level meter must be observed throughout the passby 
period. The highest noise level obtained for the run must be recorded.
    (3) At least three measurements shall be made for each side of the 
motorcycle. Measurements must be made until at least three readings from 
each side are within 2 dB of each other. The noise level for each side 
must be the average of the three. The noise level reported must be for 
that side of the motorcycle having the highest noise level. If the 
microphone location point is 7.5 m from the vehicle path as allowed in 
this appendix

[[Page 158]]

under paragraph (b)(1)(i)(c), the noise level must be adjusted by 
subtracting 6 dB prior to being reported.
    (4) While making noise level measurements, not more than one person 
other than the rider and the observer reading the meter may be within 15 
m (49.2 ft) of the vehicle or microphone, and that person must be 
directly behind the observer reading the meter, on a line through the 
microphone and the observer.
    (5) The ambient sound level (including wind effects) at the test 
site due to sources other than the motorcycle being measured must be no 
greater than 60 dB if the microphone is located 15 m from the vehicle 
path or 66 dB if the microphone is located 7.5 m from the vehicle path 
as allowed in this appendix under paragraph (b)(1)(i)(c).
    (6) Wind speed at the test site during tests must be less than 20 
km/h (12.4 mph).
    (e) Required data. For each valid test, the following data must be 
recorded:
    (1) Motorcycle type, serial number, model year, and date of 
manufacture.
    (2) Names of persons conducting test.
    (3) Test location.
    (4) Wind speed and ambient noise level measured on the same day as 
the test and representative of conditions during the test.
    (5) Description of the sound level meter including type, serial 
number, and calibration date.
    (6) Description of the external acoustic calibrator including type, 
serial number, and calibration date.
    (7) Maximum noise level for each pass on each side of the motorcycle 
including invalid readings and reasons for invalidation.
    (8) Reported noise level.
    (9) Other information as appropriate to completely describe testing 
conditions and procedure.

[[Page 159]]

[GRAPHIC] [TIFF OMITTED] TC01FE92.054


[[Page 160]]





             Sec. Appendix II to Subpart E--Sampling Tables

         Table 1--Model Year Production Volume of 50-99 Vehicles
------------------------------------------------------------------------
                                                    Number of failing
                                                        vehicles
          Cumulative number of tests           -------------------------
                                                  Column A     Column B
------------------------------------------------------------------------
1.............................................  ...........  ...........
2.............................................  ...........  ...........
3.............................................  ...........            3
4.............................................  ...........            3
5.............................................  ...........            3
6.............................................  ...........            3
7.............................................            0            3
8.............................................            0            4
9.............................................            0            4
10............................................            0            4
11............................................            1            4
12............................................            1            4
13............................................            1            5
14............................................            1            5
15............................................            2            5
16............................................            2            5
17............................................            2            5
18............................................            2            5
19............................................            2            5
20............................................            4            5
------------------------------------------------------------------------


        Table 2--Model Year Production Volume of 100-199 Vehicles
------------------------------------------------------------------------
                                                    Number of failing
                                                        vehicles
          Cumulative number of tests           -------------------------
                                                  Column A     Column B
------------------------------------------------------------------------
1.............................................  ...........  ...........
2.............................................  ...........  ...........
3.............................................  ...........            3
4.............................................  ...........            3
5.............................................  ...........            3
6.............................................  ...........            3
7.............................................            0            4
8.............................................            0            4
9.............................................            0            4
10............................................            0            4
11............................................            1            4
12............................................            1            5
13............................................            1            5
14............................................            1            5
15............................................            1            5
16............................................            2            5
17............................................            2            5
18............................................            2            5
19............................................            2            5
20............................................            4            5
------------------------------------------------------------------------


        Table 3--Model Year Production Volume of 200-399 Vehicles
------------------------------------------------------------------------
                                                    Number of failing
                                                        vehicles
          Cumulative number of tests           -------------------------
                                                  Column A     Column B
------------------------------------------------------------------------
1.............................................  ...........  ...........
2.............................................  ...........  ...........
3.............................................  ...........            3
4.............................................  ...........            3
5.............................................  ...........            3
6.............................................  ...........            3
7.............................................            0            4
8.............................................            0            4
9.............................................            0            4
10............................................            0            4
11............................................            0            5
12............................................            1            5
13............................................            1            5
14............................................            1            5
15............................................            1            5
16............................................            2            5
17............................................            2            5
18............................................            2            5
19............................................            2            5
20............................................            4            5
------------------------------------------------------------------------


      Table 4--Model Year Production Volume of 400 or More Vehicles
------------------------------------------------------------------------
                                                    Number of failing
                                                        vehicles
          Cumulative number of tests           -------------------------
                                                  Column A     Column B
------------------------------------------------------------------------
1.............................................  ...........  ...........
2.............................................  ...........  ...........
3.............................................  ...........            3
4.............................................  ...........            3
5.............................................  ...........            3
6.............................................  ...........            4
7.............................................            0            4
8.............................................            0            4
9.............................................            0            4
10............................................            0            4
11............................................            0            5
12............................................            1            5
13............................................            1            5
14............................................            1            5
15............................................            1            5
16............................................            2            5
17............................................            2            5
18............................................            2            5
19............................................            2            5
20............................................            4            5
------------------------------------------------------------------------



PART 209_RULES OF PRACTICE GOVERNING PROCEEDINGS UNDER THE NOISE
CONTROL ACT OF 1972--Table of Contents



 Subpart A_Rules of Practice Governing Hearings for Orders Issued Under 
                 Section 11(d) of the Noise Control Act

Sec.
209.1 Scope.
209.2 Use of number and gender.
209.3 Definitions.
209.4 Issuance of complaint.
209.5 Complaint.
209.6 Answer.
209.7 Effective date of order in complaint.
209.8 Submission of a remedial plan.
209.9 Contents of a remedial plan.
209.10 Approval of plan, implementation.
209.11 Filing and service.
209.12 Time.

[[Page 161]]

209.13 Consolidation.
209.14 Motions.
209.15 Intervention.
209.16 Late intervention.
209.17 Amicus curiae.
209.18 Administrative law judge.
209.19 Informal settlement and consent agreement.
209.20 Conferences.
209.21 Primary discovery (exchange of witness lists and documents).
209.22 Other discovery.
209.23 Trade secrets and privileged information.
209.24 Default order.
209.25 Accelerated decision; dismissal.
209.26 Evidence.
209.27 Interlocutory appeal.
209.28 Record.
209.29 Proposed findings, conclusions.
209.30 Decision of the administrative law judge.
209.31 Appeal from the decision of the administrative law judge.
209.32 Review of the administrative law judge's decision in absence of 
          appeal.
209.33 Decision on appeal or review.
209.34 Reconsideration.
209.35 Conclusion of hearing.
209.36 Judicial review.

    Authority: Sec. 11, Noise Control Act of 1972 (42 U.S.C. 4910) and 
additional authority as specified.

    Source: 43 FR 34132, Aug. 3, 1978, unless otherwise noted.



 Subpart A_Rules of Practice Governing Hearings for Orders Issued Under 
                 Section 11(d) of the Noise Control Act



Sec. 209.1  Scope.

    These rules of practice govern all proceedings conducted in the 
issuance of an order under section 11(d) of the Noise Control Act of 
1972, 42 U.S.C. 4910.



Sec. 209.2  Use of number and gender.

    In these rules of practice, words in the singular number apply to 
the plural and words in the masculine gender apply to the feminine and 
vice versa.



Sec. 209.3  Definitions.

    All terms not defined in this section shall have the meaning given 
them in the Act.
    (a) Act means the Noise Control Act of 1972 (42 U.S.C. 4901 et 
seq.).
    (b) Administrative law judge means an administrative law judge 
appointed under 5 U.S.C. 3105 (see also 5 CFR part 930, as amended by 37 
FR 16787). ``Administrative law judge'' is synonymous with ``hearing 
examiner'' as used in Title 5 of the United States Code.
    (c) Administrator means the Administrator of the Environmental 
Protection Agency or his or her delegate.
    (d) Agency means the U.S. Environmental Protection Agency.
    (e) Complainant means the Agency acting through any person 
authorized by the Administrator to issue a complaint to alleged 
violators of the Act. The complainant shall not be the judicial officer 
or the Administrator.
    (f) Hearing clerk means the hearing clerk of the Environmental 
Protection Agency.
    (g) Intervener means a person who files a motion to be made a party 
under Sec. 209.15 or Sec. 209.16, and whose motion is approved.
    (h) Party means the Environmental Protection Agency, the 
respondent(s) and any interveners.
    (i) Person means any individual, corporation, partnership, or 
association, and includes any officer, employee, department, agency or 
instrumentality of the United States, a State, or any political 
subdivision of a State.
    (j) Respondent means any person against whom a complaint has been 
issued under this subpart.
    (k) Environmental Appeals Board means the Board within the Agency 
described in Sec. 1.25 of this title. The Administrator delegates 
authority to the Environmental Appeals Board to issue final decisions in 
appeals filed under this part. An appeal directed to the Administrator, 
rather than to the Environmental Appeals Board, will not be considered. 
This delegation of authority to the Environmental Appeals Board does not 
preclude the Environmental Appeals Board from referring an appeal or a 
motion filed under this part to the Administrator for decision when the 
Environmental Appeals Board, in its discretion, deems it appropriate to 
do so. When an appeal or motion is referred to the Administrator, all 
parties shall be so notified and the rules in this part referring to the 
Environmental Appeals Board shall

[[Page 162]]

be interpreted as referring to the Administrator.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5344, Feb. 13, 1992]



Sec. 209.4  Issuance of complaint.

    If the complainant has reason to believe that a person has violated 
any provision of the Act or the regulations, he or she may institute a 
proceeding for the issuance of a remedial order by issuing a complaint.



Sec. 209.5  Complaint.

    (a) Contents. The complaint shall include (1) specific reference to 
each provision of the Act or regulations which respondent is alleged to 
have violated; (2) a brief statement of the factual basis for alleging 
each violation; (3) the proposed order issued under section 11(d) of the 
Act to remedy the violation, signed by the Assistant Administrator for 
Enforcement, with notice that the order shall be effective 20 days after 
service of the complaint unless respondent requests a hearing under 
Sec. 209.6; (4) notice of respondent's right to request a hearing on 
any material fact or issue of law contained in the complaint, or on the 
appropriateness of the proposed order; and (5) a statement of whether 
the respondent must submit a remedial plan pursuant to Sec. 209.8.
    (b) Amendment of the complaint. At any time prior to the filing of 
an answer, the complainant may amend the complaint as a matter of right. 
Respondent shall have twenty (20) additional days from the date of 
service of the amended complaint to file an answer. At any time after 
the filing of an answer, the complaint may be amended upon motion 
granted by the administrative law judge.
    (c) Withdrawal of the complaint. Where, on the basis of new 
information or evidence, the complainant concludes that no violation of 
the Act or the regulations has been committed by the respondent or that 
the issuance of the complaint was otherwise inappropriate, the 
complainant may withdraw the complaint without prejudice at any stage in 
the proceeding.
    (d) Service of complaint. (1) Service of the complaint shall be made 
on the respondent personally (or on his or her representative), or by 
certified mail, return receipt requested.
    (2) Service upon a domestic or foreign corporation or upon a 
partnership or another unincorporated association which is subject to 
suit under a common name shall be made by personal service or certified 
mail, return receipt requested, directed to an officer or partner, a 
managing or general agent, or any other agent authorized by appointment 
or by Federal or State law to receive service of process.
    (3) Proof of service of the complaint shall be made by affidavit of 
the person making personal service, or by properly executed return 
receipt.



Sec. 209.6  Answer.

    (a) General. Where respondent (1) contests any material fact alleged 
in the complaint to constitute a violation of the Act or regulations; or 
(2) contends that the remedial order proposed in the complaint is 
inappropriate to the violation; or (3) contends that he or she is 
entitled to judgment as a matter of law, he or she shall file a written 
answer with the complainant. Any answer must be filed with the 
complainant within twenty (20) days after service of the complaint. 
Initiation of informal conferences with the Agency under Sec. 209.19 
does not add to the twenty (20) day period. The time per iod in which to 
file an answer may be extended by the Administrator upon motion.
    (b) Contents of the answer. The answer shall clearly and directly 
admit, deny or explain each of the factual allegations contained in the 
complaint with regard to which respondent has any knowledge. Whenever an 
allegation is denied, the answer shall state briefly the facts upon 
which the denial is based. The answer shall also state (1) whether a 
hearing is requested, (2) the facts respondent intends to place at 
issue, and (3) the circumstances or arguments which are alleged to 
constitute the grounds of defense.
    (c) Hearing upon the issues. A hearing upon the issues raised by the 
complaint and answer shall be held upon written demand of respondent.
    (d) Failure to plead specifically. A respondent's failure to plead 
specifically

[[Page 163]]

to any material factual allegation contained in the complaint shall 
constitute an admission of such allegation.
    (e) Amendment of the answer. The respondent may amend the answer 
upon motion granted by the administrative law judge.



Sec. 209.7  Effective date of order in complaint.

    (a) The order in the complaint is effective and binding on 
respondent 20 days after service of the complaint, unless respondent 
requests a hearing pursuant to Sec. 209.6. If the respondent does not 
request a hearing, the order is then a final order of the Agency.
    (b) Respondent may file a motion with the complainant to vacate the 
final order, reopen the proceedings and request a hearing after the 
order is effective. This motion must be filed within twenty (20) days 
after the effective date of the order. The motion shall state the 
reasons respondent failed to file a timely answer, and provide the 
information required by Sec. 209.6(b). The Administrator may, in his or 
her discretion and for good cause shown, grant the motion.



Sec. 209.8  Submission of a remedial plan.

    (a) The Administrator may require the respondent to submit a 
remedial plan. Notice of this requirement and the due date will be given 
in the complaint. If the respondent requests a hearing, the remedial 
plan required by the complaint need not be submitted. The final order 
may include a requirement that the respondent submit a remedial plan.
    (b) A respondent may always submit a remedial plan voluntarily in 
pursuit of informal settlement.

(Sec. 13, Noise Control Act (42 U.S.C. 4912))



Sec. 209.9  Contents of a remedial plan.

    (a) The Administrator will specify the requirements of the remedial 
plan. This may include, but is not limited to, the following 
information:
    (1) A detailed description of the products covered by the remedial 
order, including the category and/or configuration if applicable, and 
the make, model year and model number, if applicable.
    (2) A detailed description of the present location of the products, 
including a list of those in possession of the products and, if 
necessary, how the respondent intends to contact the persons in 
possession and retrieve the products.
    (3) Any appropriate remedies the respondent would propose as an 
alternative to the specific remedies proposed by the Administrator.
    (4) A detailed plan for implementing the remedies, both those 
proposed by the Administrator and those proposed by the respondent.
    (5) A detailed account of the costs of implementing each of the 
proposed plans.
    (b) Remedial plans shall be submitted to Director, Noise Enforcement 
Division (EN-387), Environmental Protection Agency, 1200 Pennsylvania 
Ave., NW., Washington, DC 20460.

(Sec. 13, Noise Control Act (42 U.S.C. 4912))



Sec. 209.10  Approval of plan, implementation.

    (a) If the Administrator finds that the remedial plan is designed to 
remedy the noncompliance effectively, he or she will so notify the 
respondent in writing. If the remedial plan is not approved, the 
Administrator will provide the respondent with written notice of the 
disapproval and the reasons for the disapproval. The Administrator may 
give the respondent an opportunity to revise the plan, or the 
Administrator may revise the plan.
    (b) The respondent shall commence implementation of the approved 
plan upon receipt of notice from the Administrator that the remedial 
plan has been approved, or revised by the Administrator and then 
approved.

(Sec. 13, Noise Control Act (42 U.S.C. 4912))



Sec. 209.11  Filing and service.

    (a) After an answer containing a written demand for a hearing has 
been filed, an original and two copies of all documents or papers 
required or permitted to be filed under these rules of practice shall be 
filed with the hearing clerk.
    (b) When a party files with the hearing clerk any pleadings, any 
additional issues for consideration at the hearing, or any written 
testimony, documents, papers, exhibits, or materials, proposed

[[Page 164]]

to be introduced into evidence or papers filed in connection with any 
appeal, it shall serve copies upon all other parties. A certificate of 
service shall be provided on or accompany each document or paper filed 
with the hearing clerk. Documents to be served upon the Director of the 
Noise Enforcement Division shall be mailed to: Director, Noise 
Enforcement Division, U.S. Environmental Protection Agency (EN-387), 
1200 Pennsylvania Ave., NW., Washington, DC 20460.
    (c) Service by mail is complete upon mailing. Filing is completed 
when the document reaches the hearing clerk. It shall be timely if 
mailed within the time allowed for filing as determined by the postmark.



Sec. 209.12  Time.

    (a) In computing any period of time prescribed or allowed by these 
rules of practice, the day of the act or event from which the designated 
period of time begins to run shall not be included, except as otherwise 
provided. Saturdays, Sundays, and Federal legal holidays shall be 
included in computing any period allowed for the filing of any document 
or paper, except that when a period expires on a Saturday, Sunday, or 
Federal legal holiday, the period shall be extended to include the next 
following business day.
    (b) A prescribed period of time within which a party is required or 
permitted to do an act shall be computed from the time of service, 
except that when service is accomplished by mail, 3 days shall be added.



Sec. 209.13  Consolidation.

    The Administrator or the administrative law judge may consolidate 
two or more proceedings to be held under this section for resolving one 
or more issues whenever it appears that such consolidation will expedite 
or simplify consideration of such issues. Consolidation shall not affect 
the right of any party to raise any issues that could otherwise have 
been raised.



Sec. 209.14  Motions.

    (a) All motions, except those made orally during the course of the 
hearing, shall be in writing, shall state the grounds with 
particularity, and shall set forth the relief or order sought.
    (b) Within 10 days after service of any motion filed under this 
section or within such other time as may be fixed by the Environmental 
Appeals Board or the administrative law judge, as appropriate, any party 
may serve and file an answer to the motion. The movant shall, by leave 
of the Environmental Appeals Board or the administrative law judge, as 
appropriate, serve and file reply papers within the time set by the 
request.
    (c) The administrative law judge shall rule upon all motions filed 
or made subsequent to his or her appointment and prior to the filing of 
his or her decision or accelerated decision, as appropriate. The 
Environmental Appeals Board shall rule upon all motions filed before the 
appointment of the administrative law judge and all motions filed after 
the filing of the decision of the administrative law judge or 
accelerated decision. Oral argument of motions will be permitted only if 
the administrative law judge or the Environmental Appeals Board, as 
appropriate, deems it necessary.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5344, Feb. 13, 1992]



Sec. 209.15  Intervention.

    (a) Persons desiring to intervene in a hearing to be held under 
section 11(d) of the act shall file a motion setting forth the facts and 
reasons why they should be permitted to intervene.
    (b) In passing on a motion to intervene, the following factors, 
among other things, shall be considered by the administrative law judge:
    (1) The nature of the movant's interest including the nature and the 
extent of the property, financial, environmental protection, or other 
interest of the movant;
    (2) The effect the order which may be entered in the proceeding may 
have on the movant's interest;
    (3) The extent to which the movant's interest will be represented by 
existing parties or may be protected by other means;
    (4) The extent to which the movant's participation may reasonably be 
expected to assist materially in the development of a complete record;

[[Page 165]]

    (5) The extent to which one movant's participation may reasonably be 
expected to delay the proceedings.
    (c) A motion to intervene should be filed before the first 
prehearing conference, the initiation of correspondence under Sec. 
209.20, or the setting of the time and place for the hearing, whichever 
occurs earliest. Motions shall be served on all parties. Any opposition 
to such motion must be filed within 10 days of service.
    (d) All motions to be made an intervener shall be reviewed by the 
administrative law judge using the criteria set forth in paragraph (b) 
of this section and considering any opposition to such motion. The 
administrative law judge may, in granting such motion, limit a movant's 
participation to certain issues only.
    (e) If the administrative law judge grants the motion with respect 
to any or all issues, he or she shall notify, or direct the hearing 
clerk to notify, the petitioner and all parties. If the administrative 
law judge denies the motion he or she shall notify, or direct the 
hearing clerk to notify, the petitioner and all parties and shall 
briefly state the reasons why the motion was denied.
    (f) All motions to be made an intervener shall include the movant's 
agreement that the movant and any person he or she represents will be 
subject to examination and cross-examination, and will also include an 
agreement to make any supporting and relevant records available at the 
movant's own expense upon the request of the administrative law judge, 
on his or her own motion or the motion of any party or other intervener. 
If the intervener fails to comply with any of these requests, the 
administrative law judge may, in his or her discretion, terminate his or 
her status as an intervener.



Sec. 209.16  Late intervention.

    Following the expiration of the time prescribed in Sec. 209.15 for 
the submission of motions to intervene in a hearing, any person may file 
a motion with the administrative law judge to intervene in a hearing. 
Such a motion must contain the information and commitments required by 
paragraph (b) and (f) of Sec. 209.15, and, in addition, must show that 
there is good cause for granting the motion and must contain a statement 
that the movant shall be bound by agreements, arrangements, and other 
determinations which may have been made in the proceeding.



Sec. 209.17  Amicus curiae.

    Persons not parties to the proceedings who wish to file briefs may 
do so by leave of the Environmental Appeals Board or the administrative 
law judge, as appropriate, granted on motion. This motion shall identify 
the interest of the applicant and shall state the reasons why the 
proposed amicus brief is desirable. An amicus curiae shall be eligible 
to participate in any briefing following the granting of his or her 
motion, and shall be served with all briefs, reply briefs, motions and 
orders relating to issues to be briefed.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5344, Feb. 13, 1992]



Sec. 209.18  Administrative law judge.

    (a) General. The administrative law judge shall conduct a fair and 
impartial hearing in accordance with 5 U.S.C. 554, and shall take all 
necessary action to avoid delay and maintain order. He or she shall have 
all power consistent with Agency rule and with the Administrative 
Procedure Act, 5 U.S.C. 551 et seq., necessary to this end, including 
the following:
    (1) To administer oaths and affirmations;
    (2) To rule upon offers of proof and receive relevant evidence;
    (3) To regulate the course of the hearings and the conduct of the 
parties and their counsel;
    (4) To hold conferences for simplification of the issues or any 
other proper purpose;
    (5) To consider and rule upon all appropriate procedural and other 
motions, and to issue all necessary orders;
    (6) To require the submission of testimony in written form whenever 
in the opinion of the administrative law judge oral testimony is not 
necessary for full and true disclosure of the facts.
    (7) To require the filing of briefs on any matter on which he or she 
is required to rule;
    (8) To require any party or any witness, during the course of the 
hearing,

[[Page 166]]

to state his or her position on any relevant issue;
    (9) To take depositions or cause depositions to be taken in 
accordance with Sec. 209.22.
    (10) To render judgments upon issues of law during the course of the 
hearing.
    (11) To issue subpenas authorized by law.
    (b) Assignment of administrative law judge. When an answer which 
contains a written demand for a hearing is filed, the administrator 
shall refer the proceeding to the chief administrative law judge, who 
shall conduct the proceeding, or assign another administrative law judge 
to conduct the proceeding.

(Sec. 16, Noise Control Act (42 U.S.C. 4915))



Sec. 209.19  Informal settlement and consent agreement.

    (a) Settlement policy. The Agency encourages settlement of the 
proceeding at any time after the issuance of a complaint if settlement 
is consistent with the provisions and the objectives of the act and the 
regulations. Whether or not respondent requests a hearing, he or she may 
confer with complainant concerning the facts stated in the complaint or 
concerning the appropriateness of the proposed remedial order. The terms 
of any settlement agreement shall be expressed in a written consent 
agreement. Conferences with complainant concerning possible settlement 
shall not affect the 20 day time limit for filing an answer under Sec. 
209.6.
    (b) Consent agreement. A written consent agreement signed by the 
complainant and respondent shall be prepared by the complainant and 
forwarded to the Environmental Appeals Board whenever settlement or 
compromise is proposed. A copy shall be served on all other parties to 
the proceeding, no later than the date the consent agreement is 
forwarded to the Environmental Appeals Board. The consent agreement 
shall state that, for the purpose of this proceeding, respondent (1) 
admits the jurisdictional allegations of the complaint; (2) admits the 
facts as stipulated in the consent agreement or neither admits nor 
denies specific factual allegations contained in the complaint; and (3) 
consents to the issuance of a given remedial order. The consent 
agreement shall include (i) the terms of the agreement; (ii) any 
appropriate conclusions regarding material issues of law, fact and/or 
discretion as well as reasons therefor; and (iii) the Environmental 
Appeals Board's proposed final order. The administrative law judge does 
not have jurisdiction over a consent agreement.
    (c) Final order. No settlement or consent agreement shall be 
dispositive of any action pending under section 11(d) of the act without 
a final order of the Environmental Appeals Board. In preparing a final 
order, the Environmental Appeals Board may require that any or all of 
the parties to the settlement or other parties appear before it to 
answer inquiries relating to the proposed consent agreement. The hearing 
is terminated without further proceedings upon the filing of the final 
order with the hearing clerk.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5344, Feb. 13, 1992]



Sec. 209.20  Conferences.

    (a) At the discretion of the administrative law judge, conferences 
may be held prior to or during any hearing. The administrative law judge 
shall direct the hearing clerk to notify all parties of the time and 
location of any such conferences. At the discretion of the 
administrative law judge, persons other than parties may attend. At a 
conference the administrative law judge may:
    (1) Obtain stipulations and admissions, receive requests and order 
depositions to be taken, identify disputed issues of fact and law, and 
require or allow the submission of written testimony from any witness or 
party.
    (2) Set a hearing schedule for as many of the following as are 
deemed necessary by the administrative law judge:
    (i) Oral and written statements;
    (ii) Submission of written testimony as required or authorized by 
the administrative law judge;
    (iii) Oral direct and cross-examination of a witness;
    (iv) Oral argument, if appropriate;
    (3) Identify matters of which official notice may be taken;
    (4) Consider limitation of the number of expert and other witnesses;

[[Page 167]]

    (5) Consider the procedure to be followed at the hearing; and
    (6) Consider any other matter that may expedite the hearing or aid 
in the disposition of the issue.
    (b) The results of any conference including all stipulations shall, 
if not transcribed, be summarized in writing by the administrative law 
judge and made part of the record.
    (c) The administrative law judge, on motion or sua sponte, may 
request correspondence from the parties for any of the objectives set 
forth in this section. Copies of the administrative law judge's request 
and the parties' correspondence shall be served upon all parties. The 
administrative law judge shall include such correspondence in the record 
and a written summary of any stipulation or agreement reached by means 
of such correspondence as provided in paragraph (b) of this section.



Sec. 209.21  Primary discovery (exchange of witness lists and documents).

    (a) At a prehearing conference or within some reasonable time set by 
the administrative law judge prior to the hearing, each party shall make 
available to the other parties the names of the expert and other 
witnesses the party expects to call, together with a brief summary of 
their expected testimony and copies of all documents and exhibits which 
the party expects to introduce into evidence. Thereafter, witnesses, 
documents, or exhibits may be added and summaries of expected testimony 
amended upon motion by a party.
    (b) The administrative law judge, may, upon motion by a party or 
other person, and for good cause shown, by order (1) restrict or defer 
disclosure by a party of the name of a witness or a narrative summary of 
the expected testimony of a witness, and (2) prescribe other appropriate 
measures to protect a witness. Any party affected by any such action 
shall have an adequate opportunity, once he or she learns the name of a 
witness and obtains the narrative summary of the witness' expected 
testimony, to prepare for the presentation of his or her case.



Sec. 209.22  Other discovery.

    (a) Further discovery under this section shall be undertaken only 
upon order of the administrative law judge or upon agreement of the 
parties, except as provided in Sec. 209.21. The administrative law 
judge shall order further discovery only after determining:
    (1) That such discovery will not delay the proceeding unreasonably;
    (2) That the information to be obtained is not obtainable 
voluntarily; and
    (3) That such information is relevant to the subject matter of the 
hearing.
    (b) The administrative law judge shall order depositions upon oral 
questions only upon a showing of good cause and a finding that:
    (1) The information sought cannot be obtained by alternative 
methods; or
    (2) There is a substantial reason to believe that relevant and 
probative evidence may otherwise not be preserved for presentation by a 
witness at the hearing.
    (c) Any party to the proceeding may make a motion or motions for an 
order of discovery. The motion shall set forth:
    (1) The circumstances which require the discovery;
    (2) The nature of the information expected to be discovered; and
    (3) The proposed time and place where it will be taken. If the 
administrative law judge determines the motion should be granted, he or 
she shall issue an order for the taking of such discovery together with 
the conditions and terms thereof.
    (d) A person's or party's failure to comply with a discovery order 
may lead to the inference that the infor mation to be discovered is 
adverse to the person or party who failed to provide it.



Sec. 209.23  Trade secrets and privileged information.

    In the presentation, admission, disposition, and use of evidence, 
the administrative law judge shall preserve the confidentiality of trade 
secrets and other privileged commercial and financial information. The 
confidential or trade secret status of any information shall not, 
however, preclude its being

[[Page 168]]

introduced into evidence. The administrative law judge may make such 
orders as may be necessary to consider such evidence in camera. This may 
include a supplemental initial decision to consider questions of fact 
and conclusions regarding material issues of law, fact or discretion 
which arise out of that portion of the evidence which is confidential or 
which includes trade secrets.



Sec. 209.24  Default order.

    (a) Default. Respondent may be found to be in default upon failure 
to comply with a prehearing or hearing ruling of the Administrator or 
the administrative law judge. A respondent's default shall constitute an 
admission of all facts alleged in the complaint and a waiver of 
respondent's right to a hearing on such factual allegations. The 
remedial order proposed is binding on respondent without further 
proceedings upon the issuance by the Environmental Appeals Board of a 
final order issued upon default.
    (b) Proposed default order. Where the administrative law judge finds 
a default has occurred after a request for a hearing has been filed, the 
administrative law judge may render a proposed default order to be 
issued against the defaulting party. For the purpose of appeal pursuant 
to Sec. 209.31 this order shall be deemed to be the initial decision of 
the administrative law judge.
    (c) Contents of a final order issued upon default. A final order 
issued upon default shall include findings of fact, conclusions 
regarding all material issues of law, fact, or discretion, and the 
remedial order which is issued. An order issued by the Environmental 
Appeals Board upon default of respondent shall constitute a final order 
in accordance with the terms of Sec. 209.33.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5345, Feb. 13, 1992]



Sec. 209.25  Accelerated decision; dismissal.

    (a) The administrative law judge, upon motion of any party or sua 
sponte, may at any time render an accelerated decision in favor of the 
Agency or the respondent as to all or any part of the proceeding, 
without further hearing or upon such limited additional evidence such as 
affidavits as he or she may require, or dismiss any party with 
prejudice, under any of the following conditions:
    (1) Failure to state a claim upon which relief can be granted, or 
direct or collateral estoppel;
    (2) No genuine issue of material fact exists and a party is entitled 
to judgment as a matter of law, as to all or any part of a proceeding; 
or
    (3) Such other reasons as are just, including failure to obey a 
procedural order of the administrative law judge.
    (b) If under this section an accelerated decision is issued as to 
all the issues and claims joined in the proceedings, the decision shall 
be treated as the decision of the administrative law judge as provided 
in Sec. 209.30.
    (c) If under this section, judgment is rendered on less than all 
issues or claims in the proceeding, the administrative law judge shall 
determine what material facts exist without substantial controversy and 
what material facts are actually and in good faith controverted. The 
administrative law judge shall thereupon issue an order specifying the 
facts which appear without substantial controversy, and the issues and 
claims upon which the hearing will proceed.



Sec. 209.26  Evidence.

    (a) The official transcripts and exhibits, together with all papers 
and requests filed in the proceeding, shall constitute the record. 
Evidence may be received at the hearing even though inadmissible under 
the rules of evidence applicable to judicial proceedings, provided it is 
relevant, competent and material and not unduly repetitious. Immaterial 
or irrelevant parts of an admissible document shall be segregated and 
excluded so far as practicable. The weight to be given evidence shall be 
determined by its reliability and probative value.
    (b) Witnesses shall be examined orally, under oath or affirmation, 
except as otherwise provided in these rules of practice or by the 
administrative law judge. Parties shall have the right to cross-examine 
a witness who appears at the hearing provided that such cross-
examination is not unduly repetitious.

[[Page 169]]

    (c) Rulings of the administrative law judge on the admissibility of 
evidence, the propriety of examination and cross-examination and other 
procedural matters shall appear in the record.
    (d) Parties shall automatically be presumed to have taken exception 
to an adverse ruling.



Sec. 209.27  Interlocutory appeal.

    (a) An interlocutory appeal may be taken to the Environmental 
Appeals Board either (1) with the consent of the administrative law 
judge where he or she certifies on the record or in writing that the 
allowance of an interlocutory appeal is clearly necessary to prevent 
exceptional delay, expense or prejudice to any party or substantial 
detriment to the public interest, or (2) absent the consent of the 
administrative law judge, by permission of the Environmental Appeals 
Board.
    (b) Applications for interlocutory appeal of any ruling or order of 
the administrative law judge may be filed with the administrative law 
judge within 5 days of the issuance of the ruling or order being 
appealed. Answers by other parties may be filed within 5 days of the 
service of such applications.
    (c) Applications to file such appeals absent consent of the 
administrative law judge shall be filed with the Environmental Appeals 
Board within 5 days of the denial of any appeal by the administrative 
law judge.
    (d) The Environmental Appeals Board will consider the merits of the 
appeal on the application and answers. No oral argument will be heard 
nor other briefs filed unless the Environmental Appeals Board directs 
otherwise.
    (e) Except under extraordinary circumstances as determined by the 
administrative law judge, the taking of an interlocutory appeal will not 
stay the hearing.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5345, Feb. 13, 1992]



Sec. 209.28  Record.

    (a) Hearings shall be reported and transcribed verbatim, 
stenographically or otherwise, and the original transcript shall be part 
of the record and the sole official transcript. Copies of the record 
shall be filed with the hearing clerk and made available during Agency 
business hours for public inspection. Any person who desires a copy of 
the record of the hearing or any part of it shall be entitled to it upon 
payment of the cost.
    (b) The official transcripts and exhibits, together with all papers 
and requests filed in the proceeding, shall constitute the record.



Sec. 209.29  Proposed findings, conclusions.

    (a) Within 20 days of the filing of the record with the hearing 
clerk as provided in Sec. 209.28, or within such longer time as may be 
fixed by the administrative law judge, any party may submit for the 
consideration of the administrative law judge proposed findings of fact, 
conclusions of law, and a proposed rule or order, together with briefs 
in support of it. Such proposals shall be in writing, shall be served 
upon all parties, and shall contain adequate references to the record 
and authorities relied on.
    (b) The record shall show the administrative law judge's ruling on 
the proposed findings and conclusions except when the administrative law 
judge's order disposing of the proceedings otherwise informs the parties 
of the action taken by him or her thereon.



Sec. 209.30  Decision of the administrative law judge.

    (a) The administrative law judge shall issue and file with the 
hearing clerk his or her decision as soon as practicable after the 
period for filing proposed findings as provided for in Sec. 209.29 has 
expired.
    (b) The administrative law judge's decision shall become the 
decision of the Environmental Appeals Board (1) when no notice of 
intention to appeal as described in Sec. 209.31 is filed, 30 days after 
its issuance, unless in the interim the Environmental Appeals Board 
shall have taken action to review or stay the effective date of the 
decision; or (2) when a notice of intention to appeal is filed but the 
appeal is not perfected as required by Sec. 209.31, 5 days after the 
period allowed for perfection of an appeal has expired unless within 
that 5 day period, the Environmental Appeals Board

[[Page 170]]

has taken action to review or stay the effective date of the decision.
    (c) The administrative law judge's decision shall include a 
statement of findings and conclusions, as well as the reasons or basis 
therefore, upon all the material issues of fact or law presented on the 
record and an appropriate rule or order. The decision shall be supported 
by a preponderance of the evidence and based upon a consideration of the 
whole record.
    (d) At any time prior to issuing his or her decision, the 
administrative law judge may reopen the proceeding for the reception of 
further evidence.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5345, Feb. 13, 1992]



Sec. 209.31  Appeal from the decision of the administrative law judge.

    (a) Any party to a proceeding may appeal the administrative law 
judge's decision to the Environmental Appeals Board: Provided, That 
within 10 days after the administrative law judge's decision is issued, 
the party files a notice of intention to appeal, and within 30 days of 
the decision the party files an appeal brief.
    (b) When an appeal is taken from the decision of the administrative 
law judge, any party may file a brief with respect to such appeal. The 
brief shall be filed within 20 days of the date of the filing of the 
appellant's brief.
    (c) Any brief filed under this section shall contain, in the order 
indicated:
    (1) A subject index of the matter in the brief, with page 
references, and a table of cases (alphabetically arranged), textbooks, 
statutes, and other material cited, with page references thereto;
    (2) A specification of the issues which will be argued;
    (3) The argument presenting clearly the points of fact and law 
relied upon in support of the position taken on each issue, with 
specific page references to the record and the legal or other material 
relied upon; and
    (4) A proposed form of rule or order for the Environmental Appeals 
Board's consideration if different from the rule or order contained in 
the administrative law judge's decision.
    (d) Briefs shall not exceed 40 pages without leave of the 
Environmental Appeals Board.
    (e) The Environmental Appeals Board may allow oral argument in its 
discretion.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5345, Feb. 13, 1992]



Sec. 209.32  Review of the administrative law judge's decision in 
absence of appeal.

    (a) If, after the expiration of the period for taking an appeal 
under Sec. 209.31, no notice of intention to appeal the decision of the 
administrative law judge has been filed, or if filed, not perfected, the 
hearing clerk shall so notify the Environmental Appeals Board.
    (b) The Environmental Appeals Board, upon receipt of notice from the 
hearing clerk that no notice of intention to appeal has been filed, or 
if filed, not perfected pursuant to Sec. 209.31, may, on its own 
motion, within the time limits specified in Sec. 209.30(b), review the 
decision of the administrative law judge. Notice of the Environmental 
Appeals Board's intention to review the decision of the administrative 
law judge shall be given to all parties and shall set forth the scope of 
such review and the issues which shall be considered and shall make 
provision for filing of briefs.

[57 FR 5345, Feb. 13, 1992]



Sec. 209.33  Decision on appeal or review.

    (a) Upon appeal from or review of the administrative law judge's 
decision, the Environmental Appeals Board shall consider such parts of 
the record as are cited or as may be necessary to resolve the issues 
presented and, in addition shall to the extent necessary or desirable 
exercise all the powers which the Environmental Appeals Board could have 
exercised if it had presided at the hearing.
    (b) The Environmental Appeals Board shall render a decision as 
expeditiously as possible. The Environmental Appeals Board shall adopt, 
modify, or set aside the findings, conclusions, and rule or order 
contained in the decision of the administrative law judge and

[[Page 171]]

shall set forth in its decision a statement of the reasons or bases for 
its action. The Environmental Appeals Board's decision shall be the 
final order in the proceeding.
    (c) In those cases where the Environmental Appeals Board determines 
that it should have further information or additional views of the 
parties as to the form and content of the rule or order to be issued, 
the Environmental Appeals Board, in its discretion, may withhold final 
action pending the receipt of such additional information or views, or 
may remand the case to the administrative law judge.

[57 FR 5345, Feb. 13, 1992]



Sec. 209.34  Reconsideration.

    Within five (5) days after service of the Environmental Appeals 
Board's decision, any party may file a petition for reconsideration of 
such decision, setting forth the relief desired and the grounds in 
support thereof. Petitions for reconsideration under this provision 
shall be directed to, and decided by, the Environmental Appeals Board. 
Petitions for reconsideration directed to the Administrator, rather than 
to the Environmental Appeals Board, will not be considered, except in 
cases that the Environmental Appeals Board has referred to the 
Administrator's pursuant to Sec. 209.3(k) and in which the 
Administrator has issued the final order. Any petition filed under this 
subsection must be confined to new questions raised by the decision or 
final order and upon which the petitioner had no opportunity to argue 
before the administrative law judge or the Environmental Appeals Board. 
Any party desiring to oppose a petition shall file an answer thereto 
within five (5) days after service of the petition. The filing of a 
petition for reconsideration shall not operate to stay the effective 
date of the decision or order.

[57 FR 5345, Feb. 13, 1992]



Sec. 209.35  Conclusion of hearing.

    (a) If no appeal has been taken from the administrative law judge's 
decision before the period for taking an appeal under Sec. 209.31 has 
expired, and the period for review by the Environmental Appeals Board on 
its own motion under Sec. 209.30 has expired, and the Environmental 
Appeals Board does not move to review such decision, the hearing will be 
deemed to have ended at the expiration of all periods allowed for such 
appeal and review.
    (b) If an appeal of the administrative law judge's decision is taken 
under Sec. 209.31, or if, in the absence of such appeal, the 
Environmental Appeals Board moves to review the decision of the 
administrative law judge under Sec. 209.32, the hearing will be deemed 
to have ended upon the rendering of a final decision by the 
Environmental Appeals Board.

[57 FR 5346, Feb. 13, 1992]



Sec. 209.36  Judicial review.

    (a) The Administrator hereby designates the general counsel, 
Environmental Protection Agency as the officer upon whom copy of any 
petition for judicial review shall be served. That officer shall be 
responsible for filing in the court the record on which the order of the 
Environmental Appeals Board is based.
    (b) Before forwarding the record to the court, the Agency shall 
advise the petitioner of the costs of preparing it and as soon as 
payment to cover fees is made shall forward the record to the court.

[43 FR 34132, Aug. 3, 1978, as amended at 57 FR 5346, Feb. 13, 1992]



PART 210_PRIOR NOTICE OF CITIZEN SUITS--Table of Contents



Sec.
210.1 Purpose.
210.2 Service of notice.
210.3 Contents of notice.

    Authority: Sec. 12, Noise Control Act, (Pub. L. 92-574, 86 Stat. 
1234).

    Source: 39 FR 36011, Oct. 7, 1974, unless otherwise noted.



Sec. 210.1  Purpose.

    Section 12 of the Noise Control Act authorizes any person to 
commence a civil action on his own behalf to enforce the Act or to 
enforce certain requirements promulgated pursuant to the Act. The 
purpose of this part is to prescribe procedures governing the manner of 
giving notices as required by

[[Page 172]]

subsection 12(b) of the Act (Pub. L. 92-574, 86 Stat. 1234) as a 
prerequisite to the commencement of such actions.



Sec. 210.2  Service of notice.

    (a) Notice of intent to file suit pursuant to section 12(a)(1) of 
the Act shall be served upon an alleged violator of a noise control 
requirement issued under the Act in the following manner:
    (1) If the alleged violator is a private individual or a 
corporation, service of notice shall be accomplished by registered mail, 
return receipt requested, addressed to, or by personal service upon, the 
owner or managing agent of the equipment, plant, facility, vehicle, or 
activity alleged to be in violation. A copy of the notice shall be 
mailed to the Administrator of the Environmental Protection Agency, the 
Regional Administrator of the Environmental Protection Agency for the 
region in which such violation is alleged to have occurred; and in the 
case of a violation of a noise control requirement under section 611 of 
the Federal Aviation Act, to the Administrator of the Federal Aviation 
Administration, and the Regional Administrator of the Federal Aviation 
Administration for the region in which such violation is alleged to have 
occurred. If the alleged violator is a corporation, a copy of such 
notice also shall be mailed to the registered agent, if any, of such 
corporation in the State in which such violation is alleged to have 
occurred.
    (2) If the alleged violator is a State or local government entity, 
service of notice shall be accomplished by registered mail, return 
receipt requested, addressed to, or by personal service upon, the head 
of such agency. A copy of such notice shall be mailed to the 
Administrator of the Environmental Protection Agency, the Regional 
Administrator of the Environmental Protection Agency for the region in 
which such violation is alleged to have occurred; and in the case of a 
violation of a noise control requirement under section 611 of the 
Federal Aviation Act, to the Administrator of the Federal Aviation 
Administration, and the Regional Administrator of the Federal Aviation 
Administration for the region in which such violation is alleged to have 
occurred.
    (3) If the alleged violator is a Federal agency, service of notice 
shall be accomplished by registered mail, return receipt requested, 
addressed to, or by personal service upon, the head of such agency. A 
copy of such notice shall be mailed to the Administrator of the 
Environmental Protection Agency, the Regional Administrator of the 
Environmental Protection Agency for the region in which such violation 
is alleged to have occurred, the Attorney General of the United States; 
and in the case of a violation of a noise control requirement under 
section 611 of the Federal Aviation Act, to the Administrator of the 
Federal Aviation Administration, and the Regional Administrator of the 
Federal Aviation Administration for the region in which such violation 
is alleged to have occurred.
    (b) Service of notice of intent to file suit pursuant to section 
12(a)(2)(A) of the Act shall be accomplished by registered mail, return 
receipt requested, addressed to, or by personal service upon, the 
Administrator, Environmental Protection Agency, Washington, DC 20460. A 
copy of such notice shall be mailed to the Attorney General of the 
United States.
    (c) Service of notice of intent to file suit pursuant to section 
12(a)(2)(B) of the Act shall be accomplished by registered mail, return 
receipt requested, addressed to, or by personal service upon, the 
Administrator, Federal Aviation Administration, Washington, DC. A copy 
of such notice shall be mailed to the Attorney General of the United 
States, and to the Administrator of the Environmental Protection Agency.
    (d) Notice given in accordance with the provisions of this part 
shall be deemed to have been served on the date of receipt. If service 
was accomplished by mail, the date of receipt will be deemed to be the 
date noted on the return receipt card.



Sec. 210.3  Contents of notice.

    (a) Violation of noise control requirement. Notice regarding an 
alleged violation of a noise control requirement shall include 
sufficient information to permit the recipient to identify the specific 
standard or regulation alleged

[[Page 173]]

to have been violated, the activity alleged to constitute a violation, 
the person or persons responsible for the alleged violation, the 
location of the alleged violation, the date or dates of such violation 
and the full name, address, and telephone number of the person giving 
notice.
    (b) Failure to act. Notice regarding an alleged failure of the 
Administrator of the Environmental Protection Agency to perform any act 
or duty under the Noise Control Act which is not discretionary with such 
Administrator or notice regarding an alleged failure of the 
Administrator of the Federal Aviation Administration to perform any act 
or duty under section 611 of the Federal Aviation Act which is not 
discretionary with such Administrator shall identify the statutory 
provision which requires such act or creates such duty, shall describe 
with reasonable specificity the action taken or not taken by such 
Administrator which is alleged to constitute a failure to perform such 
act or duty, and shall state the full name, address, and telephone 
number of the person giving the notice.
    (c) Identification of Counsel. The notice shall state the name, 
address, and telephone number of the legal counsel, if any, representing 
the person giving the notice.



PART 211_PRODUCT NOISE LABELING--Table of Contents



                      Subpart A_General Provisions

Sec.
211.101 Applicability.
211.102 Definitions.
211.103 Number and gender.
211.104 Label content.
211.105 Label format.
211.106 Graphical requirements.
211.107 Label type and location.
211.108 Sample label.
211.109 Inspection and monitoring.
211.110 Exemptions.
211.110-1 Testing exemption.
211.110-2 National security exemptions.
211.110-3 Export exemptions.
211.111 Testing by the Administrator.

                  Subpart B_Hearing Protective Devices

211.201 Applicability.
211.202 Effective date.
211.203 Definitions.
211.204 Hearing protector labeling requirements.
211.204-1 Information content of primary label.
211.204-2 Primary label size, print and color.
211.204-3 Label location and type.
211.204-4 Supporting information.
211.205 Special claims.
211.206 Methods for measurement of sound attenuation.
211.206-1 Real ear method.
211.206-2 Alternative test data.
211.206-3--211.206-10 Alternative test methods. [Reserved]
211.207 Computation of the noise reduction rating (NRR).
211.208 Export provisions.
211.210 Requirements.
211.210-1 General requirements.
211.210-2 Labeling requirements.
211.211 Compliance with labeling requirement.
211.212 Compliance audit testing.
211.212-1 Test request.
211.212-2 Test hearing protector selection.
211.212-3 Test hearing protector preparation.
211.212-4 Testing procedures.
211.212-5 Reporting of test results.
211.212-6 Determination of compliance.
211.212-7 Continued compliance testing.
211.212-8 Relabeling requirements.
211.213 Remedial orders for violations of these regulations.
211.214 Removal of label.

Appendix A to Part 211--Compliance Audit Testing Report

    Source: 44 FR 56127, Sept. 28, 1979, unless otherwise noted.



                      Subpart A_General Provisions

    Authority: Sec. 8, Noise Control Act of 1972, (42 U.S.C. 4907), and 
other authority as specified.



Sec. 211.101  Applicability.

    The provisions of subpart A apply to all products for which 
regulations are published under part 211 and manufactured after the 
effective date of this regulation, unless they are made inapplicable by 
product-specific regulations.



Sec. 211.102  Definitions.

    (a) All terms that are not defined in this subpart will have the 
meaning given them in the Act.
    (b) Act means the Noise Control Act of 1972 (Pub. L. 92-574, 86 
Stat. 1234).
    (c) Administrator means the Administrator of the Environmental 
Protection

[[Page 174]]

Agency or his authorized representative.
    (d) Agency means the United States Environmental Protection Agency.
    (e) Acoustic descriptor means the numeric, symbolic, or narrative 
information describing a product's acoustic properties as they are 
determined according to the test methodology that the Agency prescribes.
    (f) Export exemption means an exemption from the prohibitions of 
section 10(a) (3) and (4) of the Act; this type of exemption is granted 
by statute under section 10(b)(2) of the Act for the purpose of 
exporting regulated products.
    (g) National security exemption means an exemption from the 
prohibitions of section 10(a) (3) and (5) of the Act, which may be 
granted under section 10(b)(1) of the Act in cases involving national 
security.
    (h) Product means any noise-producing or noise-reducing product for 
which regulations have been promulgated under part 211; the term 
includes ``test product''.
    (i) Regulations published under this part means all subparts to part 
211.
    (j) Testing exemption means an exemption from the prohibitions of 
section 10(a) (1), (2), (3), and (5) of the Act, which may be granted 
under section 10(b)(1) of the Act for research, investigations, studies, 
demonstrations, or training, but not for national security.
    (k) Test product means any product that must be tested according to 
regulations published under part 211.



Sec. 211.103  Number and gender.

    In this part, words in the singular will be understood to include 
the plural, and words in the masculine gender will be understood to 
include the feminine, and vice versa, as the case may require.



Sec. 211.104  Label content.

    The following data and information must be on the label of all 
products for which regulations have been published under this part:
    (a) The term ``Noise Rating'' if the product produces noise, or the 
term ``Noise Reduction Rating'' if the product reduces noise;
    (b) The acoustic rating descriptor that is determined according to 
procedures specified in the regulations that will be published under 
this part;
    (c) Comparative acoustic rating information, which EPA will specify 
in the regulations published under this part;
    (d) A product manufacturer identification consisting of: (1) The 
Company name, and (2) The City and State of the principal office;
    (e) A product model number or type identification;
    (f) The phrase ``Federal law prohibits removal of this label prior 
to purchase'';
    (g) The U.S. Environmental Protection Agency logo, as shown in 
Figure 1;
    (h) The phrase ``Label Required by U.S. EPA regulation 40 CFR part 
211, subpart ------.''
[GRAPHIC] [TIFF OMITTED] TC01FE92.055



Sec. 211.105  Label format.

    (a) Unless specified otherwise in other regulations published under 
this part, the format of the label must be as shown in Figure 2. The 
label must include all data and information required under Sec. 
211.104.

[[Page 175]]

[GRAPHIC] [TIFF OMITTED] TC01FE92.056

    (b) Unless EPA specifies otherwise in regulations published under 
this part, the required data and information specified in Sec. 211.104 
(a) through (h) must be located in the following areas of the prescribed 
label (see Figure 2 of this section):
    (1) Section 211.104 (a)--Area A.
    (2) Section 211.104 (b)--Area B.
    (3) Section 211.104 (c)--Area C.
    (4) Section 211.104 (d)--Area D.
    (5) Section 211.104 (e)--Area E.
    (6) Section 211.104 (f)--Area F.
    (7) Section 211.104 (g)--Area G.
    (8) Section 211.104 (h)--Area H.



Sec. 211.106  Graphical requirements.

    (a) Color. Unless EPA requires otherwise, the product manufacturer 
or supplier must determine the colors used for the label background, 
borders, and all included letters, numerals, and figures. However, the 
colors on the label must contrast sufficiently with each other and with 
any information or material surrounding the label so that the label and 
the information within it are clearly visible and legible.
    (b) Label Size. The prescribed label must be sized as specified in 
regulations published under this part.
    (c) Character Style. Except when specified otherwise in this part, 
all letters and numerals that appear on the prescribed label must be 
Helvetica Medium.
    (d) Character Size. All letters and numerals that appear on the 
prescribed label must be sized as specified in regulations published 
under this part.



Sec. 211.107  Label type and location.

    The prescribed label must be of the type and in the location 
specified in regulations published under this part.



Sec. 211.108  Sample label.

    Examples of labels conforming to the requirements of Sec. Sec. 
211.104, 211.105, and 211.106 are presented in Figure 3.

[[Page 176]]

[GRAPHIC] [TIFF OMITTED] TC01FE92.057



Sec. 211.109  Inspection and monitoring.

    (a) Any inspecting or monitoring activities that EPA conducts under 
this part with respect to the requirements set out in regulations 
published under this part, will be for the purpose of determining:
    (1) Whether test products are being selected and prepared for 
testing in accordance with the provisions of the regulations;
    (2) Whether test product testing is being conducted according to the 
provisions of those regulations; and
    (3) Whether products that are being produced and distributed into 
commerce comply with the provisions of those regulations.
    (b) The Director of the Noise Enforcement Division may request that 
a manufacturer who is subject to this part admit an EPA Enforcement 
Officer during operating hours to any of the following:
    (1) Any facility or site where any product to be distributed into 
commerce is manufactured, assembled, or stored;
    (2) Any facility or site where the manufacturer performed or 
performs any tests conducted under this part or any procedures or 
activities connected with those tests;
    (3) Any facility or site where any test product is located.
    (c)(1) Once an EPA Enforcement Officer has been admitted to a 
facility or site, that officer will not be authorized to do more than 
the following:
    (i) Inspect and monitor the manufacture and assembly, selection, 
storage, preconditioning, noise testing, and maintenance of test 
products, and to verify the correlation or calibration of test 
equipment;
    (ii) Inspect products before they are distributed in commerce;
    (iii) Inspect and make copies of any records, reports, documents, or 
information that the manufacturer must maintain or provide to the 
Administrator under the Act or under any provision of this part;
    (iv) Inspect and photograph any part or aspect of any product and 
any components used in manufacturing the product that is reasonably 
related to the purpose of this entry; and
    (v) Obtain from those in charge of the facility or site any 
reasonable assistance that he may request to enable him to carry out any 
function listed in this section.
    (2) The provisions of this section apply whether the facility or 
site is owned or controlled by the manufacturer, or by someone who acts 
for the manufacturer.
    (d) For the purposes of this section:
    (1) An ``EPA Enforcement Officer'' is an employee of the EPA Office 
of Enforcement. When he arrives at a facility or site, he must display 
the credentials that identify him as an employee of the EPA and a letter 
signed by the Director of the Noise Enforcement Division designating him 
to make the inspection.

[[Page 177]]

    (2) Where test product storage areas or facilities are concerned, 
``operating hours'' means all times during which personnel, other than 
custodial personnel, are at work in the vicinity of the area or facility 
and have access to it.
    (3) Where other facilities or areas are concerned, ``operating 
hours'' means all times during which products are being manufactured or 
assembled; or all times during which products are being tested or 
maintained; or records are being compiled; or when any other procedure 
or activity related to labeling, selective enforcement auditing, or 
product manufacture or assembly being carried out.
    (4) ``Reasonable assistance'' means providing timely and 
unobstructed access to test products or to products and records that are 
required by this part, and the means for copying those records or the 
opportunity to test the test products.
    (e) The manufacturer must admit an EPA Enforcement Officer who 
presents a warrant authorizing entry to a facility or site. If the EPA 
officer does not have the warrant, he may enter a facility or site only 
if the manufacturer consents.
    (1) It is not a violation of this regulation or the Act if anyone 
refuses to allow an officer without a warrant to enter the site.
    (2) The Administrator or his designee may proceed ex parte (without 
the other party's knowledge) to obtain a warrant whether or not the 
manufacturer has refused entry to an EPA Enforcement Officer.

(Secs. 11 and 13, Pub. L. 92-574, 86 Stat. 1242, 1244 (42 U.S.C. 4910, 
4912))

[44 FR 56127, Sept. 28, 1979, as amended at 47 FR 57716, Dec. 28, 1982]



Sec. 211.110  Exemptions.



Sec. 211.110-1  Testing exemption.

    (a) A new product intended to be used solely for research, 
investigations, studies, demonstrations or training, and so labeled or 
marked on the outside of the container and on the produce itself, shall 
be exempt from the prohibitions of sections 10(a), (1), (2), (3), and 
(5) of the Act.
    (b) No request for a testing exemption is required.
    (c) For purposes of section 11(d) of the Act, any testing exemption 
shall be void ab initio with respect to each new product, originally 
intended for research, investigations, studies, demonstrations, or 
training, but distributed in commerce for other uses.

[47 FR 57716, Dec. 28, 1982]



Sec. 211.110-2  National security exemptions.

    (a) A new product which is produced to conform with specifications 
developed by national security agency, and so labeled or marked on the 
outside of the container and on the product itself, shall be exempt from 
the prohibitions of sections 10(a), (1), (2), (3), and (5) of the Act.
    (b) No request for a national security exemption is required.
    (c) For purposes of section 11(d) of the Act, any national security 
exemption shall be void ab initio with respect to each new product, 
originally intended for a national security agency, but distributed in 
commerce for other uses.

[47 FR 57716, Dec. 28, 1982]



Sec. 211.110-3  Export exemptions.

    (a) A new product intended solely for export, and which has 
satisfied the requirements of other applicable regulations of this part, 
will be exempt from the prohibitions of section 10(a) (3) and (4) of the 
Act.
    (b) Requests for an export exemption are not required.
    (c) For purposes of section 11(d) of the Noise Control Act, the 
Administrator may consider any export exemption under section 10(b)(2) 
void from the beginning if a new product, intended only for export, is 
distributed in commerce in the United States.

(Sec. 10(b)(2), Pub. L. 92-574, 86 Stat. 1242 (42 U.S.C. 4909(b)(2)))

[44 FR 56127, Sept. 28, 1979, as amended at 47 FR 57716, Dec. 28, 1982]



Sec. 211.111  Testing by the Administrator.

    (a)(1) To determine whether products conform to applicable 
regulations under this part, the Administrator may require that any 
product that is to be

[[Page 178]]

tested under applicable regulations in this part, or any other products 
that are regulated under this part, be submitted to him, at a place and 
time that he designates, to conduct tests on them in accordance with the 
test procedures described in the regulations.
    (2) The Administrator may specify that he will conduct the testing 
at the facility where the manufacturer conducted required testing. The 
Administrator will conduct the tests with his own equipment.
    (b)(1) If, from the tests conducted by the Administrator, or other 
relevant information, the Administrator determines that the test 
facility used by the manufacturer(s) does not meet the requirements of 
this part for conducting the test required by this part, he will notify 
the manufacturer(s) in writing of his determination and the reasons for 
it.
    (2) After the Administrator has notified the manufacturer, EPA will 
not accept any data from the subject test facility for the purposes of 
this part, and the Administrator may issue an order to the 
manufacturer(s) to cease to distribute in commerce products that come 
from the product categories in question. However, any such order shall 
be issued only after an opportunity for a hearing. Notification of this 
opportunity may be included in a notification under paragraph (b)(1) of 
this section. A manufacturer may request that the Administrator grant a 
hearing. He must make this request no later than fifteen (15) days (or 
any other period the Administrator allows) after the Administrator has 
notified the manufacturer that he intends to issue an order to cease to 
distribute.
    (3) A manufacturer may request in writing that the Administrator 
reconsider his determination in paragraph (b)(1) of this section, if he 
can provide data or information which indicates that changes have been 
made to the test facility, and that those changes have remedied the 
reason for disqualification.
    (4) The Administrator will notify a manufacturer of his decision 
concerning requalifying the test facility within 10 days of the time the 
manufacturer requested reconsideration under paragraph (b)(3) of this 
section.
    (c)(1) The Administrator will assume all reasonable costs associated 
with shipment of products to the place designated pursuant to paragraph 
(a) of this section, except with respect to:
    (i) [Reserved]
    (ii) Testing of a reasonable number of products for purposes of 
compliance audit testing under the Section titled Compliance Audit 
Testing of the product-specific Subpart, or if the manufacturer has 
failed to establish that there is a correlation between his test 
facility and the EPA test facility or the Administrator has reason to 
believe, and provides the manufacturer with a statement or reasons, that 
the products to be tested would fail to meet their verification level if 
tested at the EPA test facility, but would meet the level if tested at 
the manufacturer's test facility;
    (iii) Any testing performed during a period when a notice issued 
under paragraph (b) of this section, is in effect; and
    (iv) Any testing performed at place other than the manufacturer's 
facility as a result of the manufacturer's failure to permit the 
Administrator to conduct or monitor testing as required by this part.

(Secs. 11 and 13, Pub. L. 92-574, 86 Stat. 1243 (42 U.S.C. 4910, 4912))

[44 FR 56127, Sept. 28, 1979, as amended at 47 FR 57716, Dec. 28, 1982]



                  Subpart B_Hearing Protective Devices

    Authority: Sec. 8, Pub. L. 92-574, 86 Stat. 1241 (42 U.S.C. 4907), 
and additional authority as specified.

    Source: 44 FR 56139, Sept. 28, 1979, unless otherwise noted.



Sec. 211.201  Applicability.

    Unless this regulation states otherwise, the provisions of this 
subpart apply to all hearing protective de vices manufactured after the 
effective date of this regulation. (See Sec. 211.203(m) for definition 
of ``hearing pro tec tive device.'')



Sec. 211.202  Effective date.

    Manufacturers of hearing protectors must comply with the 
requirements set

[[Page 179]]

forth in this part for all hearing protective devices manufactured on or 
after September 27, 1980.



Sec. 211.203  Definitions.

    (a) As used in subpart B, all terms not defined here have the 
meaning given them in the Act or in subpart A of Part 211.
    (b) ANSI Z24.22-1957. A measurement procedure published by the 
American National Standards Institute (ANSI) for obtaining hearing 
protector attenuation values at nine of the one-third octave band center 
frequencies by using pure tone stimuli presented to ten different test 
subjects under anechoic conditions.
    (c) ANSI S3.19-1974. A revision of the ANSI Z24.22-1957 measurement 
procedure using one-third octave band stimuli presented under diffuse 
(reverberant) acoustic field conditions.
    (d) Carrying Case. The container used to store reusable hearing 
protectors.
    (e) Category. A group of hearing protectors which are identical in 
all aspects to the parameters listed in Sec. 211.210-2(c).
    (f) Claim. An assertion made by a manufacturer regarding the 
effectiveness of his product.
    (g) Custom-molded device. A hearing protective device that is made 
to conform to a specific ear canal. This is usually accomplished by 
using a moldable compound to obtain an impression of the ear and ear 
canal. The compound is subsequently permanently hardened to retain this 
shape.
    (h) Dispenser. The permanent (intended to be refilled) or disposable 
(discarded when empty) container designed to hold more than one complete 
set of hearing protector(s) for the express purpose of display to 
promote sale or display to promote use or both.
    (i) Disposable Device. A hearing protective device that is intended 
to be discarded after one period of use.
    (j) Ear Insert Device. A hearing protective device that is designed 
to be inserted into the ear canal, and to be held in place principally 
by virtue of its fit inside the ear canal.
    (k) Ear Muff Device. A hearing protective device that consists of 
two acoustic enclosures which fit over the ears and which are held in 
place by a spring-like headband to which the enclosures are attached.
    (l) Headband. The component of hearing protective device which 
applies force to, and holds in place on the head, the component which is 
intended to acoustically seal the ear canal.
    (m) Hearing Protective Device. Any device or material, capable of 
being worn on the head or in the ear canal, that is sold wholly or in 
part on the basis of its ability to reduce the level of sound entering 
the ear. This includes devices of which hearing protection may not be 
the primary function, but which are nonetheless sold partially as 
providing hearing protection to the user. This term is used 
interchangeably with the terms, ``hearing protector'' and ``device.''
    (n) Impulsive Noise. An acoustic event characterized by very short 
rise time and duration.
    (o) Label. That item, as described in this regulation, which is 
inscribed on, affixed to or appended to a product, its packaging, or 
both for the purpose of giving noise reduction effectiveness information 
appropriate to the product.
    (p) Manufacturer. As stated in the Act ``means any person engaged in 
the manufacturing or assembling of new products, or the importing of new 
products for resale, or who acts for, and is controlled by, any such 
person in connection with the distribution of such products.''
    (q) Noise Reduction Rating (NRR). A single number noise reduction 
factor in decibels, determined by an empirically derived technique which 
takes into account performance variation of protectors in noise reducing 
effectiveness due to differing noise spectra, fit variability and the 
mean attenuation of test stimuli at the one-third octave band test 
frequencies.
    (r) Octave Band Attenuation. The amount of sound reduction 
determined according to the measurement procedure of Sec. 211.206 for 
one-third octave bands of noise.
    (s) Over-the-Head Position. The mode of use of a device with a 
headband, in which the headband is worn such that it passes over the 
user's head. This is contrast to the behind-the-head and under-the-chin 
positions.

[[Page 180]]

    (t) Package. The container in which a hearing protective device is 
presented for purchase or use. The package in some cases may be the same 
as the carrying case.
    (u) Primary Panel. The surface that is considered to be the front 
surface or that surface which is intended for initial viewing at the 
point of ultimate sale or the point of distribution for use.
    (v) Spectral uncertainty. Possible variation in exposure to the 
noise spectra in the workplace. (To avoid the underprotection that would 
result from these variations relative to the assumed ``Pink Noise'' used 
to determine the NRR, an extra three decibel re duction is included when 
computing the NRR.)
    (w) Tag. Stiff paper, metal or other hard material that is tied or 
otherwise affixed to the packaging of a protector.
    (x) Test Facility. For this subpart, a laboratory that has been set 
up and calibrated to conduct ANSI Std S3.19-1974 tests on hearing 
protective devices. It must meet the applicable requirements of these 
regulations.
    (y) Test Hearing Protector. A hearing protector that has been 
selected for testing to verify the value to be put on the label, or 
which has been designated for testing to determine compliance of the 
protector with the labeled value.
    (z) Test Request. A request submitted to the manufacturer by the 
Administrator that will specify the hearing protector category, and test 
sample size to be tested according to Sec. 211.212-1, and other 
information regarding the audit.
    (aa) Random Incident Field. A sound field in which the angle of 
arrival of sound at a given point in space is random in time.
    (bb) Real-Ear Protection at Threshold. The mean value in decibels of 
the occluded threshold of audibility (hearing protector in place) minus 
the open threshold of audibility (ears open and uncovered) for all 
listeners on all trials under otherwise identical test conditions.
    (cc) Reverberation Time. The time that would be required for the 
mean-square sound pressure level, originally in a steady state, to fall 
60 dB after the source is stopped.



Sec. 211.204  Hearing protector labeling requirements.

    All provisions of subpart A apply to this subpart except as 
otherwise noted.



Sec. 211.204-1  Information content of primary label.

    The information to appear on the primary label must be according to 
Sec. 211.104 of subpart A except as stated here and shown in Figure 1 
of Sec. 211.204-2:
    (a) Area A must state ``Noise Reduction Rating.''
    (b)(1) Area B must state the value of the Noise Reduction Rating 
(NRR) in decibels for that model hearing protector. The value stated on 
the label must be no greater than the NRR value determined by using the 
computation method of Sec. 211.207 of this subpart.
    (2) For devices with headbands that are intended for use with the 
headband in different positions, the worst case NRR must be specified. 
The top of Area B must state the position(s) associated with that NRR. 
The other positions and the respective NRRs must be included with the 
supporting information specified in Sec. 211.204-4.
    (c) Area C must contain the statement ``The range of Noise Reduction 
Ratings for existing hearing protectors is approximately 0 to 30 (higher 
numbers denote greater effectiveness).''
    (d) At the bottom of Area A-B, there must be the phrase ``(When used 
as directed).''

[44 FR 56127, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980]



Sec. 211.204-2  Primary label size, print and color.

    The primary label characteristics are the same as those specified in 
Sec. Sec. 211.105 and 211.106 of subpart A except as stated here.
    (a) The label must be no smaller than 3.8 centimeters by 5.0 
centimeters (cm) (approximately 1.5 inches by 2.0 inches).
    (b) The minimum type face size for each area shall be as follows, 
based upon a scale of 72 points=1 inch:
    (1) Area A--2.8 millimeters (mm) or 8 point.
    (2) Area B--7.6 mm or 22 point for the Rating;--1.7 mm or 5 point 
for ``Decibels''.

[[Page 181]]

    (3) Area A-B--1.5 mm or 4 point.
    (4) Area C--1.5 mm or 4 point.
    (5) Area D--0.7 mm or 2 point.
    (6) Area E--0.7 mm or 2 point.
    (7) Area F--0.7 mm or 2 point.
    (8) Area H--0.7 mm or 2 point.

These type face sizes apply to the 3.8 cm x 5.0 cm label; type face 
sizes for larger labels must be in the same approximate proportion to 
the label as those specified for the 3.8 cm x 5.0 cm label.
    (c) The use of upper and lower case letters and the general 
appearance of the label must be similar to the example in Figure (1).
[GRAPHIC] [TIFF OMITTED] TC01FE92.058

    (d) The color of the label must be as specified in subpart A.

[44 FR 56127, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980]



Sec. 211.204-3  Label location and type.

    (a) The manufacturer labeling the product for ultimate sale or use 
selects the type of label and must locate it as follows:
    (1) Affixed to the device or its carrying case; and
    (2) Affixed to primary panel of the product packaging if the label 
complying with Sec. 211.204-3(a)(1) is not visible at the point of 
ultimate purchase or the point of distribution to users.
    (b) Labeling with a minimum sized label will occur as follows:
    (1) If the protector is individually packaged and so displayed at 
the point of ultimate purchase or distribution to the prospective user, 
the package must be labeled as follows:
    (i) If the primary panel of the package has dimensions greater than 
3.8 x 5.0 cm (approximately 1\1/2\ x 2 in) the label must be presented 
on the primary panel.
    (ii) If the primary panel of the package is equal to or smaller than 
3.8 x 5.0 centimeters, a label at least 3.8 x 5.0 centimeters must be 
affixed to the package by means of a tag.
    (2) If the protector is displayed at the point of ultimate purchase 
or distribution to prospective users in a permanent or disposable bulk 
container or dispenser, even if the protector is individually packaged 
within the dispenser and labeled as above, the container or dispenser 
itself must be labeled. The label must be readily visible to the 
ultimate purchaser or prospective user.



Sec. 211.204-4  Supporting information.

    The following minimum supporting information must accompany the 
device in a manner that insures its availability to the prospective 
user. In the case of bulk packaging and dispensing, such supporting 
information must be affixed to the bulk container or dispenser in the 
same manner as the label, and in a readily visible location.
    (a) The mean attenuation and standard deviation values obtained for 
each test frequency according to Sec. 211.206, and the NRR calculated 
from those values. For ``muff'' type protectors with various use 
positions, the positions providing higher NRR values shall be 
identified, and their associated NRR values listed in bold type.
    (b) The following statement, example and cautionary note: ``The 
level of noise entering a person's ear, when hearing protector is worn 
as directed, is closely approximated by the difference between the A-
weighted environmental noise level and the NRR.

                                 Example

    1. The environmental noise level as measured at the ear is 92 dBA.
    2. The NRR is (value on label) decibels (dB).
    3. The level of noise entering the ear is approximately equal to [92 
dB(A)--NRR] dB(A).

    Caution: For noise environments dominated by frequencies below 500 
Hz the C-weighted environmental noise level should be used.''


[[Page 182]]


    (c) The month and year of production, which may be in the form of a 
serial number or a code in those instances where the records specified 
in Sec. 211.209(a)(1)(iv) are maintained;
    (d) The following statement: ``Improper fit of this device will 
reduce its effectiveness in attenuating noise. Consult the enclosed 
instructions for proper fit'';
    (e) Instructions as to the proper insertion or placement of the 
device; and
    (f) The following statement: ``Although hearing protectors can be 
recommended for protection against the harmful effects of impulsive 
noise, the Noise Reduction Rating (NRR) is based on the attenuation of 
continuous noise and may not be an accurate indicator of the protection 
attainable against impulsive noise such as gunfire.''

[44 FR 56127, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980]



Sec. 211.205  Special claims.

    (a) Any manufacturer wishing to make claims regarding the acoustic 
effectiveness of a device, other than the Noise Reduction Rating, must 
be prepared to demonstrate the validity of such claims.
    (b) [Reserved]

[44 FR 56139, Sept. 28, 1979, as amended at 47 FR 57716, Dec. 28, 1982]



Sec. 211.206  Methods for measurement of sound attenuation.



Sec. 211.206-1  Real ear method.

    (a) The value of sound attenuation to be used in the calculation of 
the Noise Reduction Rating must be determined according to the ``Method 
for the Measurement of Real-Ear Protection of Hearing Protectors and 
Physical Attenuation of Earmuffs.'' This standard is approved as the 
American National Standards Institute Standard (ANSI STD) S3.19-1974. 
The provisions of this standard, with the modifications indicated below, 
are included by reference in this section. Copies of this standard may 
be obtained from: American National Standards Institute, Sales 
Department, 1430 Broadway, New York, New York 10018.
    (b) For the purpose of this subpart only, sections 1, 2, 3 and 
appendix A of the standard, as modified below, shall be applicable. 
These sections describe the ``Real Ear Method.'' Other portions of the 
standard are not applicable in this section.
    (1) The sound field characteristics described in paragraph 3.1.1.3 
are ``required.''
    (2) Sections 3.3.2 and 3.3.3 shall be accomplished in this order 
during the same testing session. Any breaks in testing should not allow 
the subject to engage in any activity that may cause a Temporary 
Threshold Shift.
    (3) Section 3.3.3.1(1) shall not apply. Only ``Experimenter fit'' 
described in Section 3.3.3.1(2) is permitted.
    (4) Section 3.3.3.3 applies to all devices except custom-molded 
devices. When testing custom-molded devices, each test subject must 
receive his own device molded to fit his ear canal.

[44 FR 56139, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980]



Sec. 211.206-2  Alternative test data.

    (a) In lieu of testing according to Sec. 211.206-1, manufacturers 
may use the latest available test data obtained according to ANSI STD 
Z24.22-1957 or ANSI STD S3.19-1974 to determine the mean attenuation and 
standard deviation for each test frequency and the NRR calculated from 
those values. Manufacturers whose data is based on the ANSI STD Z24.22-
1957 measurement procedure must state in the supporting information 
required by Sec. 211.204-4 that the mean attenuation and standard 
deviation values used to calculate the NRR are based on ANSI STD Z24.22-
1957.
    (b) Manufacturers who initially use available data based on ANSI STD 
Z24.22-1957 must retest within one year of the effective date of this 
regulation (by September 27, 1981) the affected categories of hearing 
protectors in accordance with Sec. 211.206-1 of the regulation, and 
must relabel those categories as necessary.
    (c) Manufacturers who use available data based on ANSI STD S3.19-
1974 are not required to retest the affected categories of hearing 
protectors.
    (d) If a manufacturer has both ANSI STD S3.19-1974 test data and 
ANSI STD Z24.22-1957 test data on a hearing protector category, that 
manufacturer

[[Page 183]]

must use the data obtained according to ANSI STD S3.19-1974.

[45 FR 8275, Feb. 6, 1980]



Sec. Sec. 211.206-3--211.206-10  Alternative test methods. [Reserved]



Sec. 211.207  Computation of the noise reduction rating (NRR).

    Calculate the NRR for hearing protective devices by substituting the 
average attenuation values and standard deviations for the pertinent 
protector category for the sample data used in steps 6 and 
7 in Figure 2. The values of -.2, 0, 0, 0, -.2, -.8, -3.0 in 
Step 2 and -16.1, -8.6, -3.2, 0, +1.2, +1.0, -1.1 in Step 4 of Figure 2 
represent the standard ``C''- and ``A''-weighting relative response 
corrections applied to any sound levels at the indicated octave band 
center frequencies. (NOTE: The manufacturer may label the protector at 
values lower than indicated by the test results and this computation 
procedure, e.g. lower NRR from lower attenuation values. (Ref. Sec. 
211.211(b).)

                                                   Figure 2--Computation of the Noise Reduction Rating
 
Octave band center frequency (Hz)..................................      125     250     500   1000    2000   3000          4000   6000             8000
1 Assumed Pink noise (dB)..........................................      100     100     100    100     100  .....           100  .....              100
2 ``C'' weighting corrections (dB).................................      -.2       0       0      0     -.2  .....           -.8  .....             -3.0
3 Unprotected ear ``C''-weighted level (dB)........................     99.8     100     100    100    99.8  .....          99.2  .....             97.0
(The seven logarithmically added ``C''-weighted sound pressure
 levels of Step 3 =107.9 dS)
4 ``A''-weighting corrections (dB).................................    -16.1    -8.6    -3.2      0    +1.2  .....          +1.0  .....             -1.1
5 Unprotected ear ``A''-weighted level (step 1-step 4) (dB).........................................................
6 Average attenuation in dB at frequency...........................       21      22      23     29      41  .....  (43+47)/2=45  .....   (41+36)/2=38.5
7 Standard deviation in dB at frequency............................      3.7     3.3     3.8    4.7     3.3  .....  (3.3+3.4)=6.  .....   (6.1+6.5)=12.6
                                                                                                                               7
                                                                          x2      x2      x2     x2      x2  .....  ............  .....  ...............
                                                                    -----------------------------------------
                                                                         7.4     6.6     7.6    9.4     6.6  .....  ............  .....  ...............
8 Step 5-(step 6-step 7) develops the        70.3    76.0    81.4   80.4    66.8  .....          62.7  .....             73.0
 protected ear ``A'' weighted levels (dB)..........................
(The seven logarithmically added ``A''-weighted sound pressure
 levels of Step 8 using this sample data=85.1 dB)
9 NRR=Step 3--Step 8--3 dB*; =107.9 dB--85.1 dB--3 dB*; =19.8 dB (or 20) (Round values ending in .5 to next lower whole number).
 
*Spectral uncertainty (as defined in Sec. 211.203).


The value for 3 is constant. Use Logarithmic mathematics to 
determine the combined value of protected ear levels (Step 8) 
which is used in Step 9 to exactly derive the NRR; or use the 
following table as a substitute for logarithmic mathematics to determine 
the value of Step 8 and thus very closely approximate the NRR.

------------------------------------------------------------------------
                                                               Add this
                                                               level to
   Difference between any two sound pressure levels being     the higher
                       combined (dB)                          of the two
                                                             levels (dB)
------------------------------------------------------------------------
0 to less than 1.5.........................................            3
1.5 to less than 4.5.......................................            2
4.5 to 9...................................................            1
Greater than 9.............................................            0
------------------------------------------------------------------------



Sec. 211.208  Export provisions.

    (a) The outside of each package or container containing a hearing 
protective device intended solely for export must be so labeled or 
marked. This will include all packages or containers that are used for 
shipping, transporting, or dispersing the hearing protective device 
along with any individual packaging.
    (b) In addition, the manufacturer of a hearing protective device 
intended solely for export is subject to the export exemption 
requirements of Sec. 211.110-3 of subpart A.

(Sec. 10(b)(2), Pub. L. 92-574, 86 Stat. 1242 (42 U.S.C. 4909(b)(2)))

[[Page 184]]



Sec. 211.210  Requirements.



Sec. 211.210-1  General requirements.

    (a) Every hearing protector manufactured for distribution in 
commerce in the United States, and which is subject to this regulation:
    (1) Must be labeled at the point of ultimate purchase or 
distribution to the prospective user according to the requirements of 
Sec. 211.204 of this subpart; and
    (2) Must meet or exceed the mean attenuation values determined by 
the procedure in Sec. 211.206 and explained in Sec. 211.211(b).
    (b) Manufacturers who distribute protectors in commerce to another 
manufacturer for packaging for ultimate purchase or use must provide to 
that manufacturer the mean attenuation values and standard deviations at 
each of the one-third octave band center frequencies as determined by 
the test procedure in Sec. 211.206. He must also provide the Noise 
Reduction Rating calculated according to Sec. 211.207.

(Sec. 13, Pub. L. 92-574, 86 Stat. 1244 (42 U.S.C. 4912))

[44 FR 56139, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980; 47 
FR 57716, Dec. 28, 1982]



Sec. 211.210-2  Labeling requirements.

    (a)(1) A manufacturer responsible for labeling must satisfy the 
requirements of this subpart for a category of hearing protectors before 
distributing that category of hearing protectors in commerce.
    (2) A manufacturer may apply to the Administrator for an extension 
of time to comply with the labeling requirements for a category of 
protectors before he distributes any protectors in commerce. The 
Administrator may grant the manufacturer an extension of up to 20 days 
from the date of distribution. The manufacturer must provide reasonable 
assurance that the protectors equal or exceed their mean attenuation 
values, and that labeling requirements will be satisfied before the 
extension expires. Requests for extension should go to the 
Administrator, U.S. Environment Protection Agency, Washington, DC 20460. 
The Administrator must respond to a request within 2 business days. 
Responses may be either written or oral.
    (3) A manufacturer, receiving hearing protectors through the chain 
of distribution that were labeled by a previous manufacturer, may use 
that previous manufacturer's data when labeling the protectors for 
ultimate sale or use, but is responsible for the accuracy of the 
information on the label. The manufacturer may elect to retest the 
protectors.
    (b) Labeling requirements regarding each hearing protector category 
in a manufacturer's product line consist of:
    (1) Testing hearing protectors according to Sec. 211.206 and the 
hearing protectors must have been assembled by the manufacturer's normal 
production process; and it must have been intended for distribution in 
commerce.
    (c) Each category of hearing protectors is determined by the 
combination of at least the following parameters. Manufacturers may use 
additional parameters as needed to create and identify additional 
categories of protectors.
    (1) Ear muffs. (i) Head band tension (spring constant);
    (ii) Ear cup volume or shape;
    (iii) Mounting of ear cup on head band;
    (iv) Ear cushion;
    (v) Material composition.
    (2) Ear inserts. (i) Shape;
    (ii) Material composition.
    (3) Ear caps. (i) Head band tension (spring constant);
    (ii) Mounting of plug on head band;
    (iii) Shape of plug;
    (iv) Material composition.

If an ear insert or ear cap is manufactured in more than one size 
(small, medium, large, etc.) each size does not constitute a separate 
category and is not required to be separately label verified. However, 
each size must be used when conducting the required test to determine 
the labeled values for the specified category.

[44 FR 56139, Sept. 28, 1979, as amended at 47 FR 57717, Dec. 28, 1982]



Sec. 211.211  Compliance with labeling requirement.

    (a) All hearing protective devices manufactured after the effective 
date of this regulation, and meeting the applicability requirements of 
Sec. 211.201,

[[Page 185]]

must be labeled according to this subpart, and must comply with the 
Labeled Values of mean attenuation.
    (b) A manufacturer must take into account both product variability 
and test-to-test variability when labeling his devices in order to meet 
the requirements of paragraph (a) of this section. A specific category 
is considered when the attenuation value at the tested one-third octave 
band is equal to or greater than the Labeled Value, or mean attenuation 
value, stated in the supporting information required by Sec. 211.204-4, 
for that tested frequency. The attenuation value must be determined 
according to the test procedures of Sec. 211.206. The Noise Reduction 
Rating for the label must be calculated using the Labeled Values of mean 
attenuation that will be included in the supporting information required 
by Sec. 211.204-4.

[47 FR 57717, Dec. 28, 1982]



Sec. 211.212  Compliance audit testing.



Sec. 211.212-1  Test request.

    (a) The Administrator will request all testing under this section by 
means of a test request addressed to the manufacturer.
    (b) The test request will be signed by the Assistant Administrator 
for Enforcement or his designee. The test request will be delivered by 
an EPA Enforcement Officer or sent by certified mail to the plant 
manager or other responsible official as designated by the manufacturer.
    (c) In the test request, the Administrator must specify the 
following:
    (1) The hearing protector category selected for testing;
    (2) The manufacturer's plant or storage facility from which the 
protectors must be selected;
    (3) The selection procedure the manufacturer will use to select test 
protectors;
    (4) The test facility where the manufacturer is required to have the 
protectors tested;
    (5) The number of protectors to be forwarded to the designated test 
facility and the number of those protectors which must be tested by the 
facility.
    (6) The time period allowed for the manufacturer to initiate 
testing; and
    (7) Any other information that will be necessary to conduct testing 
under this section.
    (d) The test request may provide for situations in which the 
selected category is unavailable for testing. It may include an 
alternative category to be selected for testing in the event that 
protectors of the first specified category are not available because the 
protectors are not being manufactured at the specified plant, at the 
specified time, and are not being stored at the specified plant or 
storage facility.
    (e)(1) Any testing conducted by the manufacturer under a test 
request must commence within the period specified within the test 
request. The Administrator may extend the time period on request by the 
manufacturer, if a test facility is not available to conduct the 
testing.
    (2) The manufacturer must complete the required testing within one 
week following commencement of the testing.
    (3) The manufacturer will be allowed 1 calendar week to send test 
hearing protectors from the assembly plant to the testing facility. The 
Administrator may approve more time based upon a request by the 
manufacturer. The request must be accompanied by a satisfactory 
justification.
    (f) Failure to comply with any of the requirements of this section 
will not be considered a violation of these regulations if conditions 
and circumstances outside the control of the manufacturer render it 
impossible for him to comply. These conditions and circumstances 
include, but are not limited to, the temporary unavailability of 
equipment and personnel needed to conduct the required tests. The 
manufacturer bears the burden of establishing the presence of the 
conditions and circumstances.

(Sec. 13. Pub. L. 92-574, 86 Stat. 1244 (42 U.S.C. 4912))

[44 FR 56139, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980; 47 
FR 57717, Dec. 28, 1982]



Sec. 211.212-2  Test hearing protector selection.

    (a) The test request will specify the number of test protectors 
which will be selected for testing from the number of

[[Page 186]]

protectors delivered to the test facility in accordance with Sec. 
211.212-1(c)(5). The remainder may be used as replacement protectors if 
replacement is necessary. The test request will also specify that the 
protectors be selected from the next batch scheduled for production 
after receipt of the test request.
    (b) If random selection is specified, it must be achieved by 
sequentially numbering all the protectors in the group and then using a 
table of random numbers to select the test hearing protectors. The 
manufacturer may use an alternative random selection plan when it is 
approved by the Administrator.
    (c) Each test protector of the category selected for testing must 
have been assembled, by the manufacturer, for distribution in commerce 
using the manufacturer's normal production process.
    (d) At their discretion, EPA Enforcement Officers, rather than the 
manufacturer, may select the protectors designated in the test request.
    (e) The manufacturer must keep on hand the test protectors 
designated for testing until such time as the category is determined to 
be in compliance. Hearing protectors actually tested and found to be in 
compliance with these regulations may be distributed in commerce.

(Sec. 13, Pub. L. 92-574, 86 Stat. 1244 (42 U.S.C. 4912))

[44 FR 56139, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980]



Sec. 211.212-3  Test hearing protector preparation.

    The manufacturer must select the test hearing protector according to 
Sec. 211.212-2 before the official test, and must comply with the test 
protector preparation requirements described in this subpart:
    (a) A test hearing protector selected according to Sec. 211.212-2 
must not be tested, modified, or adjusted in any manner before the 
official test unless the adjustments, modifications and/or tests are 
part of the manufacturer's prescribed manufacturing and inspection 
procedures.
    (b) Quality controls, testing, assembly or selection procedures must 
not be, used on the completed protector or any portion of the protector, 
including parts, that will not normally be used during the production 
and assembly of all other protectors of that category to be distributed 
in commerce.

[47 FR 57717, Dec. 28, 1982]



Sec. 211.212-4  Testing procedures.

    (a) The manufacturer must conduct one valid test according to the 
test procedures specified in Sec. 211.206 for each hearing protector 
selected for testing under Sec. 211.212-2.
    (b) The manufacturer must not repair or adjust the test hearing 
protectors once compliance testing has been initiated. In the event a 
hearing protector is unable to complete the test, the manufacturer may 
replace the protector. Any replacement protector will be of the same 
category as the protector being replaced. It will be selected from the 
remaining designated test protectors and will be subject to all the 
provisions of these regulations. Any replacement and the reason for 
replacement must be reported in the compliance audit test report.

(Sec. 13, Pub. L. 92-574, 86 Stat. 1244 (42 U.S.C. 4912))



Sec. 211.212-5  Reporting of test results.

    (a)(1) The manufacturer must submit to the Administrator a copy of 
the Compliance Audit Test report for all testing conducted under Sec. 
211.212. It must be submitted within 5 days after completion of testing. 
A suggested compliance audit test report form is included as appendix B.
    (2) The manufacturer must provide the following test information:
    (i) Category identification;
    (ii) Production date, and model of hearing protector;
    (iii) The name and location of the test facility used;
    (iv) The completed data sheet in the form specified for all tests 
including, for each invalid test, the reason for invalidation; and
    (v) The reason for the replacement where a replacement protector was 
necessary.
    (3) The manufacturer must provide the following statement and en 
dorsement:

    This report is submitted under section 8 and section 13 of the Noise 
Control Act of

[[Page 187]]

1972. All testing, for which data are reported here, was conducted in 
strict conformance with applicable regulations under 40 CFR Part 211 et 
seq. All the data reported are true and accurate representations of this 
testing. All other information reported here is, to the best of (company 
name) and (test laboratory name) knowledge, true and accurate. I am 
aware of the penalties associated with violation of the Noise Control 
Act of 1972 and the regulations published under it. (authorized 
representative)


If the testing is conducted by an outside laboratory the manufacturer 
must require an authorized representative of the laboratory to cosign 
both the statement and the endorsement.
    (b) In the case where an EPA Enforcement Officer is present during 
testing required by this subpart, the written reports required in 
paragraph (a) of this section may be given directly to the Enforcement 
Officer.
    (c) The reporting requirements of this regulation will no longer be 
effective after five (5) years from the date of publication; however, 
the requirements will remain in effect if the Administrator is taking 
appropriate steps to repromulgate or modify the reporting requirements 
at that time.

(Sec. 13, Pub. L. 92-574, 86 Stat. 1244 (42 U.S.C. 4912))



Sec. 211.212-6  Determination of compliance.

    (a) A category will be in compliance with these requirements if the 
results of the test conducted under the test request show that:
    (1) The mean attenuation value, at each one-third octave band center 
frequency as determined from the Compliance Audit Test values plus 3 
dB(A), is equal to or greater than the mean attenuation value at the 
same one-third octave band as stated in the Supporting Information 
required by Sec. 211.204-4; and
    (2) The Noise Reduction Rating, when calculated from the mean 
attenuation values determined by Compliance Audit Testing, equals or 
exceeds the Noise Reduction Rating as stated on the label required by 
Sec. 211.204.
    (b) If a category is not in compliance, as determined in paragraph 
(a) of this section, the manufacturer must satisfy the continued testing 
requirements of Sec. 211.212-7, and the relabeling requirements of 
Sec. 211.212-8 before further distributing hearing protectors of that 
category in commerce.

(Sec. 13, Pub. L. 92-574, 86 Stat. 1244 (42 U.S.C. 4912))

[44 FR 56139, Sept. 28, 1979, as amended at 47 FR 57717, Dec. 28, 1982]



Sec. 211.212-7  Continued compliance testing.

    If a category is not in compliance as determined under Sec. 
211.212-6, the manufacturer must satisfy the requirements of paragraph 
(a) or (b) of this section.
    (a) The manufacturer must continue to conduct additional tests until 
the mean attenuation values from the last test at each octave band equal 
or exceed the lowest attenuation values obtained from all previous 
compliance tests.
    (b) Upon approval by the Administrator, the manufacturer may relabel 
at a lower level in compliance with Sec. 211.212-8 in lieu of testing 
under paragraph (a) of this section. The manufacturer must obtain 
approval by showing that the relabeled values adequately take into 
account results achieved from the Compliance Audit Testing and product 
variability. The Administrator is to exercise his discretion in light of 
factors including the prior compliance record of the manufacturer, the 
adequacy of the proposed new labeling value, the amount of deviation of 
test results from the labeled values, and any other relevant 
information.
    (c) When the manufacturer can show that the non-compliance under 
Sec. 211.212-6 was caused by a quality control failure and that the 
failure has been remedied, he may, with the Administrator's approval, 
conduct an additional test and relabel using the mean attenuation values 
no higher than those obtained in that test.
    (d) The manufacturer may request a hearing on the issue of whether 
the compliance audit testing was conducted properly and whether the 
criteria for non-compliance in Sec. 211.212-6 have been met; and the 
appropriateness or scope of a continued testing order. In the event that 
a hearing is requested, the hearing shall begin no later than 15 days 
after the date on which the Administrator received the hearing request. 
Neither the request

[[Page 188]]

for a hearing, nor the fact that a hearing is in progress, shall affect 
the responsibility of the manufacturer to commence and continue testing 
required by the Administrator pursuant to paragraph (a) of this section.

(Sec. 13, Pub. L. 92-574, 86 Stat. 1244 (42 U.S.C. 4912))

[44 FR 56139, Sept. 28, 1979, as amended at 45 FR 8275, Feb. 6, 1980]



Sec. 211.212-8  Relabeling requirements.

    (a) Any manufacturer who is found to not conform with Sec. 211.212-
6, and who has met the requirement of Sec. 211.212-7, must relabel all 
protectors of the specified category already in his possession according 
to Sec. 211.211 before distributing them in commerce. The manufacturer 
shall relabel at values no greater than any mean attenuation values 
received from Compliance Audit Testing. Any manufacturer who proceeds 
with Sec. 211.212-7(a) or (b) must relabel his product line with the 
lowest mean attenuation value at each octave band received from testing; 
or he may take into account product variability under Sec. 211.211(b) 
and label with a lower mean attenuation value than the worst case values 
obtained from Compliance Audit Testing.
    (b) [Reserved]

(Sec. 10(a)(3), Pub. L. 92-574, 86 Stat. 1242 (42 U.S.C. 4909(a)(3)))



Sec. 211.213  Remedial orders for violations of these regulations.

    (a) The Administrator may issue an order under section 11(d)(1) of 
the Act when any person is in violation of these regulations.
    (b) A remedial order will be issued only after the violator has been 
notified of the violation and given an opportunity for a hearing 
according to section 554 of title 5 of the United States Code.
    (c) All costs associated with a remedial order shall be borne by the 
violator.

(Sec. 11(d) Pub. L. 92-574, 86 Stat. 1243 (42 U.S.C. 4910(d)))



Sec. 211.214  Removal of label.

    Section 10(a)(4) of the Act prohibits any person from removing, 
prior to sale, any label required by this subpart, by either physical 
removal or defacing or any other physical act making the label and its 
contents not accessible to the ultimate purchaser prior to sale.

(Sec. 10(a)(4), Pub. L. 92-574, 86 Stat. 1242 (42 U.S.C. 4909(a)(4)))



      Sec. Appendix A to Part 211--Compliance Audit Testing Report

                               Data Sheet

 Company name:__________________________________________________________
 Address:_______________________________________________________________
 Test laboratory:_______________________________________________________
 Address:_______________________________________________________________
 Model number of hearing protector:_____________________________________
 Category designation:__________________________________________________
 Production date:_______________________________________________________

    Test Results--Frequency, Mean Attenuation, and Standard Deviation

 125____________________________________________________________________
 250____________________________________________________________________
 500____________________________________________________________________
 1000___________________________________________________________________
 2000___________________________________________________________________
 3150___________________________________________________________________
 4000___________________________________________________________________
 6300___________________________________________________________________
 8000___________________________________________________________________
 Noise Reduction Rating:________________________________________________

    If replacement hearing protector was necessary to conduct test, 
reason for replacement:
    This report is submitted under sections 8 and 13 of the Noise 
Control Act of 1972. All testing, for which data are reported here, was 
conducted in strict conformance with applicable regulations under 40 CFR 
Part 211, et seq. All the data reported here are true and accurate 
representations of this testing. All other information reported here is, 
to the best of (company name) and (test laboratory name) knowledge, true 
and accurate. I am aware of the penalties associated with violation of 
the Noise Control Act of 1972 and the regulations published under it.
________________________________________________________________________

                 (Authorized representative of company)

________________________________________________________________________

             (Authorized representative of test laboratory)

[44 FR 56139, Sept. 28, 1979. Redesignated at 47 FR 57717, Dec. 28, 
1982]

[[Page 189]]



                       SUBCHAPTER H_OCEAN DUMPING





PART 220_GENERAL--Table of Contents



Sec.
220.1 Purpose and scope.
220.2 Definitions.
220.3 Categories of permits.
220.4 Authorities to issue permits.

    Authority: 33 U.S.C. 1412 and 1418.

    Source: 42 FR 2468, Jan. 11, 1977, unless otherwise noted.



Sec. 220.1  Purpose and scope.

    (a) General. This subchapter H establishes procedures and criteria 
for the issuance of permits by EPA pursuant to section 102 of the Act. 
This subchapter H also establishes the criteria to be applied by the 
Corps of Engineers in its review of activities involving the 
transportation of dredged material for the purpose of dumping it in 
ocean waters pursuant to section 103 of the Act. Except as may be 
authorized by a permit issued pursuant to this subchapter H, or pursuant 
to section 103 of the Act, and subject to other applicable regulations 
promulgated pursuant to section 108 of the Act:
    (1) No person shall transport from the United States any material 
for the purpose of dumping it into ocean waters;
    (2) In the case of a vessel or aircraft registered in the United 
States or flying the United States flag or in the case of a United 
States department, agency, or instrumentality, no person shall transport 
from any location any material for the purpose of dumping it into ocean 
waters; and
    (3) No person shall dump any material transported from a location 
outside the United States:
    (i) Into the territorial sea of the United States; or
    (ii) Into a zone contiguous to the territorial sea of the United 
States, extending to a line twelve nautical miles seaward from the base 
line from which the breadth of the territorial sea is measured, to the 
extent that it may affect the territorial sea or the territory of the 
United States.
    (b) Relationship to international agreements. In accordance with 
section 102(a) of the Act, the regulations and criteria included in this 
subchapter H apply the standards and criteria binding upon the United 
States under the Convention on the Prevention of Marine Pollution by 
Dumping of Wastes and Other Matter to the extent that application of 
such standards and criteria do not relax the requirements of the Act.
    (c) Exclusions--(1) Fish wastes. This subchapter H does not apply 
to, and no permit hereunder shall be required for, the transportation 
for the purpose of dumping or the dumping in ocean waters of fish wastes 
unless such dumping occurs in:
    (i) Harbors or other protected or enclosed coastal waters; or
    (ii) Any other location where the Administrator finds that such 
dumping may reasonably be anticipated to endanger health, the 
environment or ecological systems.
    (2) Fisheries resources. This subchapter H does not apply to, and no 
permit hereunder shall be required for, the placement or deposit of 
oyster shells or other materials for the purpose of developing, 
maintaining or harvesting fisheries resources; provided, such placement 
or deposit is regulated under or is a part of an authorized State or 
Federal program certified to EPA by the agency authorized to enforce the 
regulation, or to administer the program, as the case may be; and 
provided further, that the National Oceanic and Atmospheric 
Administration, the U.S. Coast Guard, and the U.S. Army Corps of 
Engineers concur in such placement or deposit as it may affect their 
responsibilities and such concurrence is evidenced by letters of 
concurrence from these agencies.
    (3) Vessel propulsion and fixed structures. This subchapter H does 
not apply to, and no permit hereunder shall be required for:
    (i) Routine discharges of effluent incidental to the propulsion of 
vessels or the operation of motor-driven equipment on vessels; or
    (ii) Construction of any fixed structure or artificial island, or 
the intentional placement of any device in ocean waters or on or in the 
submerged

[[Page 190]]

land beneath such waters, for a purpose other than disposal when such 
construction or such placement is otherwise regulated by Federal or 
State law or made pursuant to an authorized Federal or State program 
certified to EPA by the agency authorized to enforce the regulations or 
to administer the program, as the case may be.
    (4) Emergency to safeguard life at sea. This subchapter H does not 
apply to, and no permit hereunder shall be required for, the dumping of 
material into ocean waters from a vessel or aircraft in an emergency to 
safeguard life at sea to the extent that the person owning or operating 
such vessel or aircraft files timely reports required by Sec. 224.2(b).



Sec. 220.2  Definitions.

    As used in this subchapter H:
    (a) Act means the Marine Protection, Research, and Sanctuaries Act 
of 1972, as amended (33 U.S.C. 1401);
    (b) FWPCA means the Federal Water Pollution Control Act, as amended 
(33 U.S.C. 1251);
    (c) Ocean or ocean waters means those waters of the open seas lying 
seaward of the baseline from which the territorial sea is measured, as 
provided for in the Convention on the Territorial Sea and the Contiguous 
Zone (15 UST 1606; TIAS 5639); this definition includes the waters of 
the territorial sea, the contiguous zone and the oceans as defined in 
section 502 of the FWPCA.
    (d) Material means matter of any kind or description, including, but 
not limited to, dredged material, solid waste, incinerator residue, 
garbage, sewage, sewage sludge, munitions, radiological, chemical, and 
biological warfare agents, radioactive materials, chemicals, biological 
and laboratory waste, wreck or discarded equipment, rock, sand, 
excavation debris, industrial, municipal, agricultural, and other waste, 
but such term does not mean sewage from vessels within the meaning of 
section 312 of the FWPCA. Oil within the meaning of section 311 of the 
FWPCA shall constitute ``material'' for purposes of this subchapter H 
only to the extent that it is taken on board a vessel or aircraft for 
the primary purpose of dumping.
    (e) Dumping means a disposition of material: Provided, That it does 
not mean a disposition of any effluent from any outfall structure to the 
extent that such disposition is regulated under the provisions of the 
FWPCA, under the provisions of section 13 of the River and Harbor Act of 
1899, as amended (33 U.S.C. 407), or under the provisions of the Atomic 
Energy Act of 1954, as amended (42 U.S.C. 2011), nor does it mean a 
routine discharge of effluent incidental to the propulsion of, or 
operation of motor-driven equipment on, vessels: Provided further, That 
it does not mean the construction of any fixed structure or artificial 
island nor the intentional placement of any device in ocean waters or on 
or in the submerged land beneath such waters, for a purpose other than 
disposal, when such construction or such placement is otherwise 
regulated by Federal or State law or occurs pursuant to an authorized 
Federal or State program; And provided further, That it does not include 
the deposit of oyster shells, or other materials when such deposit is 
made for the purpose of developing, maintaining, or harvesting fisheries 
resources and is otherwise regulated by Federal or State law or occurs 
pursuant to an authorized Federal or State program.
    (f) Sewage Treatment Works means municipal or domestic waste 
treatment facilities of any type which are publicly owned or regulated 
to the extent that feasible compliance schedules are determined by the 
availability of funding provided by Federal, State, or local 
governments.
    (g) Criteria means the criteria set forth in part 227 of this 
subchapter H.
    (h) Dredged Material Permit means a permit issued by the Corps of 
Engineers under section 103 of the Act (see 33 CFR 209.120) and any 
Federal projects reviewed under section 103(e) of the Act (see 33 CFR 
209.145).
    (i) Unless the context otherwise requires, all other terms shall 
have the meanings assigned to them by the Act.



Sec. 220.3  Categories of permits.

    This Sec. 220.3 provides for the issuance of general, special, 
emergency, and research permits for ocean dumping under section 102 of 
the Act.

[[Page 191]]

    (a) General permits. General permits may be issued for the dumping 
of certain materials which will have a minimal adverse environmental 
impact and are generally disposed of in small quantities, or for 
specific classes of materials that must be disposed of in emergency 
situations. General permits may be issued on application of an 
interested person in accordance with the procedures of part 221 or may 
be issued without such application whenever the Administrator determines 
that issuance of a general permit is necessary or appropriate.
    (b) Special permits. Special permits may be issued for the dumping 
of materials which satisfy the Criteria and shall specify an expiration 
date no later than three years from the date of issue.
    (c) Emergency permits. For any of the materials listed in Sec. 
227.6, except as trace contaminants, after consultation with the 
Department of State with respect to the need to consult with parties to 
the Convention on the Prevention of Marine Pollution by Dumping of 
Wastes and Other Matter that are likely to be affected by the dumping, 
emergency permits may be issued to dump such materials where there is 
demonstrated to exist an emergency requiring the dumping of such 
materials, which poses an unacceptable risk relating to human health and 
admits of no other feasible solution. As used herein, ``emergency'' 
refers to situations requiring action with a marked degree of urgency, 
but is not limited in its application to circumstances requiring 
immediate action. Emergency permits may be issued for other materials, 
except those prohibited by Sec. 227.5, without consultation with the 
Department of State when the Administrator determines that there exists 
an emergency requiring the dumping of such materials which poses an 
unacceptable risk to human health and admits of no other feasible 
solution.
    (d) [Reserved]
    (e) Research permits. Research permits may be issued for the dumping 
of any materials, other than materials specified in Sec. 227.5 or for 
any of the materials listed in Sec. 227.6 except as trace contaminants, 
unless subject to the exclusion of Sec. 227.6(g), into the ocean as 
part of a research project when it is determined that the scientific 
merit of the proposed project outweighs the potential environmental or 
other damage that may result from the dumping. Research permits shall 
specify an expiration date no later than 18 months from the date of 
issue.
    (f) Permits for incineration at sea. Permits for incineration of 
wastes at sea will be issued only as research permits until specific 
criteria to regulate this type of disposal are promulgated, except in 
those cases where studies on the waste, the incineration method and 
vessel, and the site have been conducted and the site has been 
designated for incineration at sea in accordance with the procedures of 
Sec. 228.4(b) of this chapter. In all other respects the requirements 
of parts 220 through 228 apply.

[42 FR 2468, Jan. 11, 1977; 43 FR 1071, Jan. 6, 1978; 73 FR 74986, Dec. 
10, 2008]



Sec. 220.4  Authorities to issue permits.

    (a) Determination by Administrator. The Administrator, or such other 
EPA employee as he may from time to time designate in writing, shall 
issue, deny, modify, revoke, suspend, impose conditions on, initiate and 
carry out enforcement activities and take any and all other actions 
necessary or proper and permitted by law with respect to general, 
special, emergency, or research permits.
    (b) Authority delegated to Regional Administrators. Regional 
Administrators, or such other EPA employees as they may from time to 
time designate in writing, are delegated the authority to issue, deny, 
modify, revoke, suspend, impose conditions on, initiate and carry out 
enforcement activities, and take any and all other actions necessary or 
proper and permitted by law with respect to special permits for:
    (1) The dumping of material in those portions of the territorial sea 
which are subject to the jurisdiction of any State within their 
respective Regions, and in those portions of the contiguous zone 
immediately adjacent to such parts of the territorial sea; and in the 
oceans with respect to approved waste disposal sites designated pursuant 
to part 228 of this subchapter H, and

[[Page 192]]

    (2) Where transportation for dumping is to originate in one Region 
and dumping is to occur at a location within another Region's 
jurisdiction conferred by order of the Administrator, the Region in 
which transportation is to originate shall be responsible for review of 
the application and shall prepare the technical evaluation of the need 
for dumping and alternatives to ocean dumping. The Region having 
jurisdiction over the proposed dump site shall take all other actions 
required by this subchapter H with respect to the permit application, 
including without limitation, determining to issue or deny the permit, 
specifying the conditions to be imposed, and giving public notice. If 
both Regions do not concur in the disposition of the permit application, 
the Administrator will make the final decision on all issues with 
respect to the permit application, including without limitation, 
issuance or denial of the permit and the conditions to be imposed.
    (c) Review of Corps of Engineers Dredged Material Permits. Regional 
Administrators have the authority to review, to approve or to disapprove 
or to propose conditions upon Dredged Material Permits for ocean dumping 
of dredged material at locations within the respective Regional 
jurisdictions. Regional jurisdiction to act under this paragraph (c) of 
Sec. 220.4 is determined by the Administrator in accordance with Sec. 
228.4(e).

[42 FR 2468, Jan. 11, 1977, as amended at 73 FR 74986, Dec. 10, 2008]



PART 221_APPLICATIONS FOR OCEAN DUMPING PERMITS UNDER SECTION 
102 OF THE ACT--Table of Contents



Sec.
221.1 Applications for permits.
221.2 Other information.
221.3 Applicant.
221.4 Adequacy of information in application.
221.5 Processing fees.

    Authority: 33 U.S.C. 1412 and 1418.

    Source: 42 FR 2470, Jan. 11, 1977, unless otherwise noted.



Sec. 221.1  Applications for permits.

    Applications for general, special, emergency, and research permits 
under section 102 of the Act may be filed with the Administrator or the 
appropriate Regional Administrator, as the case may be, authorized by 
Sec. 220.4 of this chapter to act on the application. Applications 
shall be made in writing and shall contain, in addition to any other 
material which may be required, the following:
    (a) Name and address of applicant;
    (b) Name of the person or firm transporting the material for 
dumping, the name of the person(s) or firm(s) producing or processing 
all materials to be transported for dumping, and the name or other 
identification, and usual location, of the conveyance to be used in the 
transportation and dumping of the material to be dumped, including 
information on the transporting vessel's communications and navigation 
equipment;
    (c) Adequate physical and chemical description of material to be 
dumped, including results of tests necessary to apply the Criteria, and 
the number, size, and physical configuration of any containers to be 
dumped;
    (d) Quantity of material to be dumped;
    (e) Proposed dates and times of disposal;
    (f) Proposed dump site, and in the event such proposed dump site is 
not a dump site designated in this subchapter H, detailed physical, 
chemical and biological information relating to the proposed dump site 
and sufficient to support its designation as a site according to the 
procedures of part 228 of this subchapter H;
    (g) Proposed method of releasing the material at the dump site and 
means by which the disposal rate can be controlled and modified as 
required;
    (h) Identification of the specific process or activity giving rise 
to the production of the material;
    (i) Description of the manner in which the type of material proposed 
to be dumped has been previously disposed of by or on behalf of the 
person(s) or firm(s) producing such material;
    (j) A statement of the need for the proposed dumping and an 
evaluation of short and long term alternative means

[[Page 193]]

of disposal, treatment or recycle of the material. Means of disposal 
shall include without limitation, landfill, well injection, 
incineration, spread of material over open ground; biological, chemical 
or physical treatment; recovery and recycle of material within the plant 
or at other plants which may use the material, and storage. The 
statement shall also include an analysis of the availability and 
environmental impact of such alternatives; and
    (k) An assessment of the anticipated environmental impact of the 
proposed dumping, including without limitation, the relative duration of 
the effect of the proposed dumping on the marine environment, 
navigation, living and non-living marine resource exploitation, 
scientific study, recreation and other uses of the ocean.

[42 FR 2470, Jan. 11, 1977, as amended at 73 FR 74986, Dec. 10, 2008]



Sec. 221.2  Other information.

    In the event the Administrator, Regional Administrator, or a person 
designated by either to review permit applications, determines that 
additional information is needed in order to apply the Criteria, he 
shall so advise the applicant in writing. All additional information 
requested pursuant to this Sec. 221.2 shall be deemed part of the 
application and for purposes of applying the time limitation of Sec. 
222.1, the application will not be considered complete until such 
information has been filed.



Sec. 221.3  Applicant.

    Any person may apply for a permit under this subchapter H even 
though the proposed dumping may be carried on by a permittee who is not 
the applicant; provided however, that the Administrator or the Regional 
Administrator, as the case may be, may, in his discretion, require that 
an application be filed by the person or firm producing or processing 
the material proposed to be dumped. Issuance of a permit will not excuse 
the permittee from any civil or criminal liability which may attach by 
virtue of his having transported or dumped materials in violation of the 
terms or conditions of a permit, notwithstanding that the permittee may 
not have been the applicant.



Sec. 221.4  Adequacy of information in application.

    No permit issued under this subchapter H will be valid for the 
transportation or dumping of any material which is not accurately and 
adequately described in the application. No permittee shall be relieved 
of any liability which may arise as a result of the transportation or 
dumping of material which does not conform to information provided in 
the application solely by virtue of the fact that such information was 
furnished by an applicant other than the permittee.



Sec. 221.5  Processing fees.

    (a) A processing fee of $1,000 will be charged in connection with 
each application for a permit for dumping in an existing dump site 
designated in this subchapter H.
    (b) A processing fee of an additional $3,000 will be charged in 
connection with each application for a permit for dumping in a dump site 
other than a dump site designated in this subchapter H.
    (c) Notwithstanding any other provision of this Sec. 221.5, no 
agency or instrumentality of the United States or of a State or local 
government will be required to pay the processing fees specified in 
paragraphs (a) and (b) of this section.



PART 222_ACTION ON OCEAN DUMPING PERMIT APPLICATIONS UNDER SECTION
102 OF THE ACT--Table of Contents



Sec.
222.1 General.
222.2 Tentative determinations.
222.3 Notice of applications.
222.4 Initiation of hearings.
222.5 Time and place of hearings.
222.6 Presiding Officer.
222.7 Conduct of public hearing.
222.8 Recommendations of Presiding Officer.
222.9 Issuance of permits.
222.10 Appeal to adjudicatory hearing.
222.11 Conduct of adjudicatory hearings.
222.12 Appeal to Administrator.
222.13 Computation of time.

    Authority: 33 U.S.C. 1412 and 1418.

    Source: 42 FR 2471, Jan. 11, 1977, unless otherwise noted.

[[Page 194]]



Sec. 222.1  General.

    Decisions as to the issuance, denial, or imposition of conditions on 
general, special, emergency, and research permits under section 102 of 
the Act will be made by application of the criteria of parts 227 and 228 
of this chapter. Final action on any application for a permit will, to 
the extent practicable, be taken within 180 days from the date a 
complete application is filed.

[73 FR 74986, Dec. 10, 2008]



Sec. 222.2  Tentative determinations.

    (a) Within 30 days of the receipt of his initial application, an 
applicant shall be issued notification of whether his application is 
complete and what, if any, additional information is required. No such 
notification shall be deemed to foreclose the Administrator or the 
Regional Administrator, as the case may be, from requiring additional 
information at any time pursuant to Sec. 221.2.
    (b) Within 30 days after receipt of a completed permit application, 
the Administrator or the Regional Administrator, as the case may be, 
shall publish notice of such application including a tentative 
determination with respect to issuance or denial of the permit. If such 
tentative determination is to issue the permit, the following additional 
tentative determinations will be made:
    (1) Proposed time limitations, if any;
    (2) Proposed rate of discharge from the barge or vessel transporting 
the waste;
    (3) Proposed dumping site; and
    (4) A brief description of any other proposed conditions determined 
to be appropriate for inclusion in the permit in question.



Sec. 222.3  Notice of applications.

    (a) Contents. Notice of every complete application for a general, 
special, emergency and research permit shall, in addition to any other 
material, include the following:
    (1) A summary of the information included in the permit application;
    (2) Any tentative determinations made pursuant to paragraph (b) of 
Sec. 222.2;
    (3) A brief description of the procedures set forth in Sec. 222.5 
for requesting a public hearing on the application including 
specification of the date by which requests for a public hearing must be 
filed;
    (4) A brief statement of the factors considered in reaching the 
tentative determination with respect to the permit and, in the case of a 
tentative determination to issue the permit, the reasons for the choice 
of the particular permit conditions selected; and
    (5) The location at which interested persons may obtain further 
information on the proposed dumping, including copies of any relevant 
documents.
    (b) Publication--(1)(1) Special and research permits. Notice of 
every complete application for special and research permits shall be 
given by:
    (i) Publication in a daily newspaper of general circulation in the 
State in closest proximity to the proposed dump site; and
    (ii) Publication in a daily newspaper of general circulation in the 
city in which is located the office of the Administrator or the Regional 
Administrator, as the case may be, giving notice of the permit 
application.
    (2) General permits. Notice of every complete application for a 
general permit or notice of action proposed to be taken by the 
Administrator to issue a general permit, without an application, shall 
be given by publication in the Federal Register.
    (3) Emergency permits. Notice of every complete application for an 
emergency permit shall be given by publication in accordance with 
paragraphs (b)(1)(i) and (ii) of this section; Provided, however, That 
no such notice and no tentative determination in accordance with Sec. 
222.2 shall be required in any case in which the Administrator 
determines:
    (i) That an emergency, as defined in paragraph (c) of Sec. 220.3 
exists;
    (ii) That the emergency poses an unacceptable risk relating to human 
health;
    (iii) That the emergency admits of no other feasible solution; and
    (iv) That the public interest requires the issuance of an emergency 
permit as soon as possible.

[[Page 195]]


Notice of any determination made by the Administrator pursuant to this 
paragraph (b)(3) shall be given as soon as practicable after the 
issuance of the emergency permit by publication in accordance with 
paragraphs (b)(1)(i) and (ii) and with paragraphs (a), (c) through (i) 
of this section.
    (c) Copies of notice sent to specific persons. In addition to the 
publication of notice required by paragraph (b) of this section, copies 
of such notice will be mailed by the Administrator or the Regional 
Administrator, as the case may be, to any person, group or Federal, 
State or local agency upon request. Any such request may be a standing 
request for copies of such notices and shall be submitted in writing to 
the Administrator or to any Regional Administrator and shall relate to 
all or any class of permit applications which may be acted upon by the 
Administrator or such Regional Administrator, as the case may be.
    (d) Copies of notice sent to States. In addition to the publication 
of notice required by paragraph (b) of this section, copies of such 
notice will be mailed to the State water pollution control agency and to 
the State agency responsible for carrying out the Coastal Zone 
Management Act, if such agency exists, for each coastal State within 500 
miles of the proposed dumping site.
    (e) Copies of notice sent to Corps of Engineers. In addition to the 
publication of notice required by paragraph (b) of this section, copies 
of such notice will be mailed to the office of the appropriate District 
Engineer of the U.S. Army Corps of Engineers for purposes of section 
106(c) of the Act, (pertaining to navigation, harbor approaches, and 
artificial islands on the outer continental shelf).
    (f) Copies of notice sent to Coast Guard. In addition to the 
publication of notice required by paragraph (b) of this section, copies 
of such notice will be sent to the appropriate district office of the 
U.S. Coast Guard for review and possible suggestion of additional 
conditions to be included in the permit to facilitate surveillance and 
enforcement.
    (g) Fish and Wildlife Coordination Act. The Fish and Wildlife 
Coordination Act, Reorganization Plan No. 4 of 1970, and the Act require 
that the Administrator or the Regional Administrator, as the case may 
be, consult with appropriate regional officials of the Departments of 
Commerce and Interior, the Regional Director of the NMFS-NOAA, and the 
agency exercising administrative jurisdiction over the fish and wildlife 
resources of the States subject to any dumping prior to the issuance of 
a permit under this subchapter H. Copies of the notice shall be sent to 
the persons noted in paragraph (g) of this section.
    (h) Copies of notice sent to Food and Drug Administration. In 
addition to the publication of notice required by paragraph (b) of this 
section, copies of such notice will be mailed to Food and Drug 
Administration, Shellfish Sanitation Branch (HF-417), 200 C Street SW., 
Washington, DC 20204.
    (i) Failure to give certain notices. Failure to send copies of any 
public notice in accordance with paragraphs (c) through (h) of this 
section shall not invalidate any notice given pursuant to this section 
nor shall such failure invalidate any subsequent administrative 
proceeding.
    (j) Failure of consulted agency to respond. Unless advice to the 
contrary is received from the appropriate Federal or State agency within 
30 days of the date copies of any public notice were dispatched to such 
agency, such agency will be deemed to have no objection to the issuance 
of the permit identified in the public notice.

[42 FR 2471, Jan. 11, 1977, as amended at 73 FR 74986, Dec. 10, 2008]



Sec. 222.4  Initiation of hearings.

    (a) In the case of any permit application for which public notice in 
advance of permit issuance is required in accordance with paragraph (b) 
of Sec. 222.3, any person may, within 30 days of the date on which all 
provisions of paragraph (b) of Sec. 222.3 have been complied with, 
request a public hearing to consider the issuance or denial of, or the 
conditions to be imposed upon, such permit. Any such request for a 
public hearing shall be in writing, shall identify the person requesting 
the hearing, shall state with particularity any objections to the 
issuance or denial of, or to the conditions to be imposed upon, the 
proposed permit, and shall state

[[Page 196]]

the issues which are proposed to be raised by such person for 
consideration at a hearing.
    (b) Whenever (1) a written request satisfying the requirements of 
paragraph (a) of this section has been received and the Administrator or 
Regional Administrator, as the case may be, determines that such request 
presents genuine issues, or (2) the Administrator or Regional 
Administrator, as the case may be, determines in his discretion that a 
public hearing is necessary or appropriate, the Administrator or the 
Regional Administrator, as the case may be, will set a time and place 
for a public hearing in accordance with Sec. 222.5, and will give 
notice of such hearing by publication in accordance with Sec. 222.3.
    (c) In the event the Administrator or the Regional Administrator, as 
the case may be, determines that a request filed pursuant to paragraph 
(a) of this section does not comply with the requirements of such 
paragraph (a) of this section or that such request does not present 
substantial issues of public interest, he shall advise, in writing, the 
person requesting the hearing of his determination.



Sec. 222.5  Time and place of hearings.

    Hearings shall be held in the State in closest proximity to the 
proposed dump site, whenever practicable, and shall be set for the 
earliest practicable date no less than 30 days after the receipt of an 
appropriate request for a hearing or a determination by the 
Administrator or the Regional Administrator, as the case may be, to hold 
such a hearing without such a request.



Sec. 222.6  Presiding Officer.

    A hearing convened pursuant to this subchapter H shall be conducted 
by a Presiding Officer. The Administrator or Regional Administrator, as 
the case may be, may designate a Presiding Officer. For adjudicatory 
hearings held pursuant to Sec. 222.11, the Presiding Officer shall be 
an EPA employee who has had no prior connection with the permit 
application in question, including without limitation, the performance 
of investigative or prosecuting functions or any other functions, and 
who is not employed in the Enforcement Division or any Regional 
enforcement office.

[42 FR 2471, Jan. 11, 1977; 42 FR 6583, Feb. 3, 1977]



Sec. 222.7  Conduct of public hearing.

    The Presiding Officer shall be responsible for the expeditious 
conduct of the hearing. The hearing shall be an informal public hearing, 
not an adversary proceeding, and shall be conducted so as to allow the 
presentation of public comments. When the Presiding Officer determines 
that it is necessary or appropriate, he shall cause a suitable record, 
which may include a verbatim transcript, of the proceedings to be made. 
Any person may appear at a public hearing convened pursuant to Sec. 
222.5 whether or not he requested the hearing, and may be represented by 
counsel or any other authorized representative. The Presiding Officer is 
authorized to set forth reasonable restrictions on the nature or amount 
of documentary material or testimony presented at a public hearing, 
giving due regard to the relevancy of any such information, and to the 
avoidance of undue repetitiveness of information presented.



Sec. 222.8  Recommendations of Presiding Officer.

    Within 30 days following the adjournment of a public hearing 
convened pursuant to Sec. 222.5, or within such additional period as 
the Administrator or the Regional Administrator, as the case may be, may 
grant to the Presiding Officer for good cause shown, and after full 
consideration of the comments received at the hearing, the Presiding 
Officer will prepare and forward to the Administrator or to the Regional 
Administrator, as the case may be, written recommendations relating to 
the issuance or denial of, or conditions to be imposed upon, the 
proposed permit and the record of the hearing, if any. Such 
recommendations shall contain a brief statement of the basis for the 
recommendations including a description of evidence relied upon. Copies 
of the Presiding Officer's recommendations shall be provided to any 
interested person on request, without charge. Copies of the record will 
be

[[Page 197]]

provided in accordance with 40 CFR Part 2.

[42 FR 2471, Jan. 11, 1977; 42 FR 6583, Feb. 3, 1977]



Sec. 222.9  Issuance of permits.

    (a) Within 30 days following receipt of the Presiding Officer's 
recommendations or, where no hearing has been held, following the close 
of the 30-day period for requesting a hearing as provided in Sec. 
222.4, the Administrator or the Regional Administrator, as the case may 
be, shall make a determination with respect to the issuance, denial, or 
imposition of conditions on, any permit applied for under this 
Subchapter H and shall give notice to the applicant and to all persons 
who registered their attendance at the hearing by providing their name 
and mailing address, if any, by mailing a letter stating the 
determination and stating the basis therefor in terms of the Criteria.
    (b) Any determination to issue or deny any permit after a hearing 
held pursuant to Sec. 222.7 shall take effect no sooner than:
    (1) 10 days after notice of such determination is given if no 
request for an adjudicatory hearing is filed in accordance with Sec. 
222.10(a); or
    (2) 20 days after notice of such determination is given if a request 
for an adjudicatory hearing is filed in accordance with paragraph (a) of 
Sec. 222.10 and the Administrator or the Regional Administrator, as the 
case may be, denies such request in accordance with paragraph (c) of 
Sec. 222.10; or
    (3) The date on which a final determination has been made following 
an adjudicatory hearing held pursuant to Sec. 222.11.
    (c) The Administrator or Regional Administrator, as the case may be, 
may extend the term of a previously issued permit pending the conclusion 
of the proceedings held pursuant to Sec. Sec. 222.7 through 222.9.
    (d) A copy of each permit issued shall be sent to the appropriate 
District Office of the U.S. Coast Guard.



Sec. 222.10  Appeal to adjudicatory hearing.

    (a) Within 10 days following the receipt of notice of the issuance 
or denial of any permit pursuant to Sec. 222.9 after a hearing held 
pursuant to Sec. 222.7, any interested person who participated in such 
hearing may request that an adjudicatory hearing be held pursuant to 
Sec. 222.11 for the purpose of reviewing such determination, or any 
part thereof. Any such request for an adjudicatory hearing shall be 
filed with the Administrator or the Regional Administrator, as the case 
may be, and shall be in writing, shall identify the person requesting 
the adjudicatory hearing and shall state with particularity the 
objections to the determination, the basis therefor and the modification 
requested.
    (b) Whenever a written request satisfying the requirements of 
paragraph (a) of this section has been received and the Administrator or 
Regional Administrator, as the case may be, determines that an 
adjudicatory hearing is warranted, the Administrator or the Regional 
Administrator, as the case may be, will set a time and place for an 
adjudicatory hearing in accordance with Sec. 222.5, and will give 
notice of such hearing by publication in accordance with Sec. 222.3.
    (c) Prior to the conclusion of the adjudicatory hearing and appeal 
process, the Administrator or the Regional Administrator, as the case 
may be, in his discretion may extend the duration of a previously issued 
permit until a final determination has been made pursuant to Sec. 
222.11 or Sec. 222.12.
    (d) In the event the Administrator or the Regional Administrator, as 
the case may be, determines that a request filed pursuant to paragraph 
(a) of this section does not comply with the requirements of such 
paragraph (a) of this section or that such request does not present 
substantial issues of public interest, he shall advise, in writing, the 
person requesting the adjudicatory hearing of his determination.
    (e) Any person requesting an adjudicatory hearing or requesting 
admission as a party to an adjudicatory hearing shall state in his 
written request, and shall by filing such request consent, that he and 
his employees and agents shall submit themselves to direct and cross-
examination at any such hearing and to the taking of an oath 
administered by the Presiding Officer.

[[Page 198]]



Sec. 222.11  Conduct of adjudicatory hearings.

    (a) Parties. Any interested person may at a reasonable time prior to 
the commencement of the hearing submit to the Presiding Officer a 
request to be admitted as a party. Such request shall be in writing and 
shall set forth the information which would be required to be submitted 
by such person if he were requesting an adjudicatory hearing. Any such 
request to be admitted as a party which satisfies the requirements of 
this paragraph (a) shall be granted and all parties shall be informed at 
the commencement of the adjudicatory hearing of the parties involved. 
Any party may be represented by counsel or other authorized 
representative. EPA staff representing the Administrator or Regional 
Administrator who took action with respect to the permit application 
shall be deemed a party.
    (b) Filing and service. (1) An original and two (2) copies of all 
documents or papers required or permitted to be filed shall be filed 
with the Presiding Officer.
    (2) Copies of all documents and papers filed with the Presiding 
Officer shall be served upon all other parties to the adjudicatory 
hearing.
    (c) Consolidation. The Administrator, or the Regional Administrator 
in the case of a hearing arising within his Region and for which he has 
been delegated authority hereunder, may, in his discretion, order 
consolidation of any adjudicatory hearings held pursuant to this section 
whenever he determines that consolidation will expedite or simplify the 
consideration of the issues presented. The Administrator may, in his 
discretion, order consolidation and designate one Region to be 
responsible for the conduct of any hearings held pursuant to this 
section which arise in different Regions whenever he determines that 
consolidation will expedite or simplify the consideration of the issues 
presented.
    (d) Pre-hearing conference. The Presiding Officer may hold one or 
more prehearing conferences and may issue a prehearing order which may 
include without limitation, requirements with respect to any or all of 
the following:
    (1) Stipulations and admissions;
    (2) Disputed issues of fact;
    (3) Disputed issues of law;
    (4) Admissibility of any evidence;
    (5) Hearing procedures including submission of oral or written 
direct testimony, conduct of cross-examination, and the opportunity for 
oral arguments;
    (6) Any other matter which may expedite the hearing or aid in 
disposition of any issues raised therein.
    (e) Adjudicatory hearing procedures. (1) The burden of going forward 
with the evidence shall:
    (i) In the case of any adjudicatory hearing held pursuant to Sec. 
222.10(b)(1), be on the person filing a request under Sec. 222.10(a) as 
to each issue raised by the request; and
    (ii) In the case of any adjudicatory hearing held pursuant to Sec. 
223.2 or pursuant to part 226, be on the Environmental Protection 
Agency.
    (2) The Presiding Officer shall have the duty to conduct a fair and 
impartial hearing, to take action to avoid unnecessary delay in the 
disposition of proceedings, and to maintain order. He shall have all 
powers necessary or appropriate to that end, including without 
limitation, the following:
    (i) To administer oaths and affirmations;
    (ii) To rule upon offers of proof and receive relevant evidence;
    (iii) To regulate the course of the hearing and the conduct of the 
parties and their counsel;
    (iv) To consider and rule upon all procedural and other motions 
appropriate to the proceedings; and
    (v) To take any action authorized by these regulations and in 
conformance with law.
    (3) Parties shall have the right to cross-examine a witness who 
appears at an adjudicatory hearing to the extent that such cross-
examination is necessary or appropriate for a full disclosure of the 
facts. In multi-party proceedings the Presiding Officer may limit cross-
examination to one party on each side if he is satisfied that the cross-
examination by one party will adequately protect the interests of other 
parties.
    (4) When a party will not be unfairly prejudiced thereby, the 
Presiding Officer may order all or part of the evidence to be submitted 
in written form.

[[Page 199]]

    (5) Rulings of the Presiding Officer on the admissibility of 
evidence, the propriety of cross-examination, and other procedural 
matters, shall be final and shall appear in the record.
    (6) Interlocutory appeals may not be taken.
    (7) Parties shall be presumed to have taken exception to an adverse 
ruling.
    (8) The proceedings of all hearings shall be recorded by such means 
as the Presiding Officer may determine. The original transcript of the 
hearing shall be a part of the record and the sole official transcript. 
Copies of the transcript shall be available from the Environmental 
Protection Agency in accordance with 40 CFR part 2.
    (9) The rules of evidence shall not apply.
    (f) Decision after adjudicatory hearing. (1) Within 30 days after 
the conclusion of the adjudicatory hearing, or within such additional 
period as the Administrator or the Regional Administrator, as the case 
may be, may grant to the Presiding Officer for good cause shown, the 
Presiding Officer shall submit to the Administrator or the Regional 
Administrator, as the case may be, proposed findings of fact and 
conclusions of law, his recommendation with respect to any and all 
issues raised at the hearing, and the record of the hearing. Such 
findings, conclusions and recommendations shall contain a brief 
statement of the basis for the recommendations. Copies of the Presiding 
Officer's proposed findings of fact, conclusions of law and 
recommendations shall be provided to all parties to the adjudicatory 
hearing on request, without charge.
    (2) Within 20 days following submission of the Presiding Officer's 
proposed findings of fact, conclusions of law and recommendations, any 
party may submit written exceptions, no more than 30 pages in length, to 
such proposed findings, conclusions and recommendations and within 30 
days following the submission of the Presiding Officer's proposed 
findings, conclusions and recommendations any party may file written 
comments, no more than 30 pages in length, on another party's 
exceptions. Within 45 days following the submission of the Presiding 
Officer's proposed findings, conclusions and recommendations, the 
Administrator or the Regional Administrator, as the case may be, shall 
make a determination with respect to all issues raised at such hearing 
and shall affirm, reverse or modify the previous or proposed 
determination, as the case may be. Notice of such determination shall 
set forth the determination for each such issue, shall briefly state the 
basis therefor and shall be given by mail to all parties to the 
adjudicatory hearing.



Sec. 222.12  Appeal to Administrator.

    (a)(1) The Administrator delegates to the Environmental Appeals 
Board authority to issue final decisions in appeals filed under this 
part. An appeal directed to the Administrator, rather than to the 
Environmental Appeals Board, will not be considered. This delegation of 
authority to the Environmental Appeals Board does not preclude the 
Environmental Appeals Board from referring an appeal or a motion filed 
under this part to the Administrator for decision when the Environmental 
Appeals Board, in its discretion, deems it appropriate to do so. When an 
appeal or motion to referred to the Administrator, all parties shall be 
so notified and the rules in this section referring to the Environmental 
Appeals Board shall be interpreted as referring to the Administrator.
    (2) Within 10 days following receipt of the determination of the 
Regional Administrator pursuant to paragraph (f)(2) of Sec. 222.11, any 
party to an adjudicatory hearing held in accordance with Sec. 222.11 
may appeal such determination to the Environmental Appeals Board by 
filing a written notice of appeal, or the Environmental Appeals Board 
may, on its own initiative, review any prior determination.
    (b) The notice of appeal shall be no more than 40 pages in length 
and shall contain:
    (1) The name and address of the person filing the notice of appeal;
    (2) A concise statement of the facts on which the person relies and 
appropriate citations to the record of the adjudicatory hearing;
    (3) A concise statement of the legal basis on which the person 
relies;
    (4) A concise statement setting forth the action which the person 
proposes

[[Page 200]]

that the Environmental Appeals Board take; and
    (5) A certificate of service of the notice of appeal on all other 
parties to the adjudicatory hearing.
    (c) The effective date of any determination made pursuant to 
paragraph (f)(2) of Sec. 222.11 may be stayed by the Environmental 
Appeals Board pending final determination by it pursuant to this section 
upon the filing of a notice of appeal which satisfies the requirements 
of paragraph (b) of this section or upon initiation by the Environmental 
Appeals Board of review of any determination in the absence of such 
notice of appeal.
    (d) Within 20 days following the filing of a notice of appeal in 
accordance with this section, any party to the adjudicatory hearing may 
file a written memorandum, no more than 40 pages in length, in response 
thereto.
    (e) Within 45 days following the filing of a notice of appeal in 
accordance with this section, the Environmental Appeals Board shall 
render its final determination with respect to all issues raised in the 
appeal to the Environmental Appeals Board and shall affirm, reverse, or 
modify the previous determination and briefly state the basis for its 
determination.
    (f) In accordance with 5 U.S.C. section 704, the filing of an appeal 
to the Environmental Appeals Board pursuant to this section shall be a 
prerequisite to judicial review of any determination to issue or impose 
conditions upon any permit, or to modify, revoke or suspend any permit, 
or to take any other enforcement action, under this subchapter H.

[42 FR 2471, Jan. 11, 1977, as amended at 57 FR 5346, Feb. 13, 1992]



Sec. 222.13  Computation of time.

    In computing any period of time prescribed or allowed in this part, 
except unless otherwise provided, the day on which the designated period 
of time begins to run shall not be included. The last day of the period 
so computed is to be included unless it is a Saturday, Sunday, or a 
legal holiday in which the Environmental Protection Agency is not open 
for business, in which event the period runs until the end of the next 
day which is not a Saturday, Sunday, or legal holiday. Intermediate 
Saturdays, Sundays and legal holidays shall be excluded from the 
computation when the period of time prescribed or allowed is seven days 
or less.



PART 223_CONTENTS OF PERMITS; REVISION, REVOCATION OR LIMITATION OF 
OCEAN DUMPING PERMITS UNDER SECTION 104(d) OF THE ACT--Table of Contents



Subpart A_Contents of Ocean Dumping Permits Issued Under Section 102 of 
                                 the Act

Sec.
223.1 Contents of special, emergency, general, and research permits; 
          posting requirements.

  Subpart B_Procedures for Revision, Revocation or Limitation of Ocean 
             Dumping Permits Under Section 104(d) of the Act

223.2 Scope of these rules.
223.3 Preliminary determination; notice.
223.4 Request for, scheduling and conduct of public hearing; 
          determination.
223.5 Request for, scheduling and conduct of adjudicatory hearing; 
          determination.

    Authority: Secs. 102, 104, 107, 108, Marine Protection Research, and 
Sanctuaries Act of 1972, as amended (33 U.S.C. 1412, 1414, 1417, 1418)

    Source: 42 FR 60702, Nov. 28, 1977, unless otherwise noted.



Subpart A_Contents of Ocean Dumping Permits Issued Under Section 102 of 
                                 the Act



Sec. 223.1  Contents of special, emergency, general, and research 
permits; posting requirements.

    (a) All special, emergency and research permits shall be displayed 
on the vessel engaged in dumping and shall include the following:
    (1) Name of permittee;
    (2) Means of conveyance and methods and procedures for release of 
the materials to be dumped;
    (3) The port through or from which such material will be transported 
for dumping;
    (4) A description of relevant physical and chemical properties of 
the materials to be dumped;

[[Page 201]]

    (5) The quantity of the material to be dumped expressed in tons;
    (6) The disposal site;
    (7) The times at which the permitted dumping may occur and the 
effective date and expiration date of the permit;
    (8) Special provisions which, after consultation with the Coast 
Guard, are deemed necessary for monitoring or surveillance of the 
transportation or dumping;
    (9) Such monitoring relevant to the assessment of the impact of 
permitted dumping activities on the marine environment at the disposal 
site as the Administrator or Regional Administrator, as the case may be, 
determine to be necessary or appropriate; and
    (10) Any other terms and conditions determined by the Administrator, 
or Regional Administrator, as the case may be, to be necessary or 
appropriate, including, without limitation, release procedures and 
requirements for the continued investigation or development of 
alternatives to ocean dumping.
    (b) General permits shall contain such terms and conditions as the 
Administrator deems necessary or appropriate.
    (c) [Reserved]

[42 FR 60702, Nov. 28, 1977, as amended at 73 FR 74986, Dec. 10, 2008]



  Subpart B_Procedures for Revision, Revocation or Limitation of Ocean 
             Dumping Permits Under Section 104(d) of the Act



Sec. 223.2  Scope of these rules.

    (a) These rules of practice shall govern all proceedings under 
section 104(d) of the Marine Protection, Research, and Sanctuaries Act 
of 1972, as amended (33 U.S.C. 1414(d)), to revise, revoke or limit the 
terms and conditions of any permit issued pursuant to section 102 of the 
Act. Section 104(d) provides that ``the Administrator * * * may limit or 
deny the issuance of permits, or he may alter or revoke partially or 
entirely the terms of permits issued by him under this title, for the 
transportation for dumping, or for the dumping, or both of specified 
materials or classes of materials, where he finds that such materials 
cannot be dumped consistently with the criteria and other factors 
required to be applied in evaluating the permit application.''
    (b) In the absence of specific provisions in these rules, and where 
appropriate, questions arising at any stage of the proceedings shall be 
resolved at the discretion of the Presiding Officer, the Regional 
Administrator, or the Administrator, as appropriate.



Sec. 223.3  Preliminary determination; notice.

    (a) General. Any general, special, emergency, or research permit 
issued pursuant to section 102 of the Act shall be subject to revision, 
revocation or limitation, in whole or in part, as the result of a 
determination by the Administrator or Regional Administrator that:
    (1) The cumulative impact of the permittee's dumping activities or 
the aggregate impact of all dumping activities at the dump site 
designated in the permit should be categorized as Impact Category I, as 
defined in Sec. 228.10(c)(1) of this subchapter; or
    (2) There has been a change in circumstances relating to the 
management of the disposal site designated in the permit; or
    (3) The dumping authorized by the permit would violate applicable 
water quality standards; or
    (4) The dumping authorized by the permit can no longer be carried 
out consistent with the criteria set forth in parts 227 and 228.
    (b) Preliminary determination. Whenever any person authorized by the 
Administrator or Regional Administrator to (1) periodically review 
permits pursuant to section 104(d) of the Act or (2) otherwise assess 
the need for revision, revocation or limitation of a permit makes any of 
the determinations listed in paragraph (a) of this section with respect 
to a permit issued pursuant to section 102 of the Act, and additionally 
determines that revision, revocation or limitation of such permit is 
warranted, the Administrator or Regional Administrator, as the case may 
be, shall provide notification of such proposed revision, revocation or 
limitation to the permittee named in the permit, if any, the public, and 
any cognizant Federal/

[[Page 202]]

State agencies pursuant to paragraph (c) of this section.
    (c) Form of notification. Notice of any proposed revision, 
revocation or limitation of a permit shall be sent to the permittee by 
certified mail, re turn receipt requested, and shall be pub lished and 
otherwise disseminated in the manner described in Sec. 222.3 (b) 
through (h).
    (d) Contents of notice. The notice of any proposed revision, 
revocation or limitation of a permit issued pursuant to paragraph (b) of 
this section shall include, in addition to any other materials, the 
following:
    (1) A brief description of the contents of the permit, as set forth 
in Sec. 223.1;
    (2) A description of the proposed revision, revocation, or 
limitation;
    (3) A statement of the reason for such proposed revision, 
revocation, or limitation; and
    (4) A statement that within thirty (30) days of the date of 
dissemination of the notice, any person may request a public hearing on 
the proposed revision, revocation or limitation.

[42 FR 60702, Nov. 28, 1977, as amended at 73 FR 74986, Dec. 10, 2008]



Sec. 223.4  Request for, scheduling and conduct of public hearing;
determination.

    (a) Request for hearing. Within thirty (30) days of the date of the 
dissemination of any notice required by Sec. 223.2(b), any person may 
request the Administrator or Regional Administrator, as appropriate, to 
hold a public hearing on the proposed revision, revocation or limitation 
by submitting a written request containing the following:
    (1) Identification of the person requesting the hearing and his 
interest in the proceeding;
    (2) A statement of any objections to the proposed revision, 
revocation or limitation or to any facts or reasons identified as 
supporting such revision, revocation or limitation; and
    (3) A statement of the issues which such person proposes to raise 
for consideration at such hearing.
    (b) Grant or denial of hearing; notification. Whenever (1) a written 
request satisfying the requirements of paragraph (a) of this section has 
been received, and the Administrator or Regional Administrator, as 
appropriate, determines that such request presents genuine issues, or 
(2) the Administrator or Regional Administrator, as the case may be, 
determines in his discretion that a public hearing is necessary or 
appropriate, the Administrator or Regional Administrator, as the case 
may be, will set a time and place for a public hearing in accordance 
with paragraph (c) of this section and will give notice of such hearing 
by publication in accordance with Sec. 223.3(c). In the event the 
Administrator or the Regional Administrator, as the case may be, 
determines that a request filed pursuant to paragraph (a) of this 
section does not comply with the requirements of paragraph (a) or that 
such request does not present genuine issues, he shall advise, in 
writing, the person requesting the hearing of his determination.
    (c) Time and place of hearing. Any hearing authorized pursuant to 
this Section by the Administrator or Regional Administrator, as the case 
may be, shall be held in the city in which the Environmental Protection 
Agency Regional Office which issued the permit is located, whenever 
practicable, and shall be set for the earliest practicable date, but in 
no event less than thirty (30) days after the receipt of an appropriate 
request for a hearing or a determination by the Administrator or the 
Regional Administrator, as the case may be, to hold such a hearing 
without such a request.
    (d) Presiding Officer. Any hearing convened pursuant to this part 
shall be conducted by a Presiding Officer, who shall be either a 
Regional Judicial Officer or a person having the qualifications of the 
members of the Environmental Appeals Board (described in 40 CFR 1.25(e)) 
if assigned by the Administrator or the qualifications of a Regional 
Judicial Officer if assigned by the Regional Administrator, as 
appropriate. Such person shall be an attorney who is a permanent or 
temporary employee of the Agency, who is not employed by the Region's or 
Headquarter's Water Programs Division, Surveillance and Analysis 
Division, or Enforcement Division, and who has had no connection with 
the preparation or

[[Page 203]]

presentation of evidence for any hearing in which he participates as 
Judicial Officer.
    (e) Conduct of the public hearing. The Presiding Officer shall be 
responsible for the expeditious conduct of the hearing. The hearing 
shall be an informal public hearing, not an adversary proceeding, and 
shall be conducted so as to allow the presentation of public comments. 
When the Presiding Officer determines that it is necessary or 
appropriate, he shall cause a suitable record, which may include a 
verbatim transcript, of the proceedings to be made. Any person may 
appear at a public hearing convened pursuant to this section whether or 
not he requested the hearing, and may be represented by counsel or any 
other authorized representative. The Presiding Officer is authorized to 
set forth reasonable restrictions on the nature or amount of documentary 
material or testimony presented at a public hearing, giving due regard 
to the relevancy of any such information, and to the avoidance of undue 
repetitiveness of information presented.
    (f) Recommendations of Presiding Officer. Within 30 days following 
the adjournment of a public hearing convened pursuant to this section or 
within such additional period as the Administrator or the Regional 
Administrator, as the case may be, may grant to the Presiding Officer 
for good cause shown, and after full consideration of the comments 
received at the hearing, the Presiding Officer will prepare and forward 
to the Administrator or to the Regional Administrator, as the case may 
be, written recommendations relating to the revision, revocation or 
limitation of the permit and the record of the hearing, if any. Such 
recommendations shall contain a brief statement of the basis therefor, 
including a description of evidence relied upon (1) to support any 
finding made pursuant to Sec. 223.3(a); (2) to justify any proposed 
revision, revocation or limitation of the permit; and (3) to justify any 
proposed revision, revocation or limitation which differs from that set 
forth in the notice issued pursuant to Sec. 223.3(b). Copies of the 
Presiding Officer's recommendations shall be provided to any interested 
person on request, without charge. Copies of the record will be provided 
in accordance with 40 CFR part 2.
    (g) Determination of the Administrator or Regional Administrator. 
Upon receipt of the Presiding Officer's recommendations or, where no 
hearing has been held, upon termination of the thirty (30)-day period 
for requesting a hearing provided in paragraph (a) of this section, the 
Administrator or the Regional Administrator, as the case may be, shall 
make a determination with respect to the modification, revocation or 
suspension of the permit. Such determination shall include a description 
of the permit revision, revocation or limitation, the basis therefor, 
and the effective date. A copy of such determination shall be mailed to 
the permittee and each person who registered his attendance at the 
hearing by providing his name and mailing address.

[42 FR 60702, Nov. 28, 1977, as amended at 57 FR 5346, Feb. 13, 1992]



Sec. 223.5  Request for, scheduling and conduct of adjudicatory
hearing; determination.

    Within ten (10) days following the receipt of the Administrator's or 
Regional Administrator's determination issued pursuant to Sec. 
223.4(g), any person who participated in the public hearing held 
pursuant to Sec. 223.4 may request that an adjudicatory hearing be held 
for the purpose of reviewing such determination or any part thereof. 
Such request shall be submitted and disposed of, and any adjudicatory 
hearing convened shall be conducted in accordance with the procedures 
set forth in Sec. Sec. 222.10 (a), (b), (d), and (e) and 222.11.



PART 224_RECORDS AND REPORTS REQUIRED OF OCEAN DUMPING PERMITTEES UNDER
SECTION 102 OF THE ACT--Table of Contents



Sec.
224.1 Records of permittees.
224.2 Reports.

    Authority: 33 U.S.C. 1412 and 1418.



Sec. 224.1  Records of permittees.

    Each permittee named in a special, emergency or research permit 
under section 102 of the Act and each person

[[Page 204]]

availing himself of the privilege conferred by a general permit, shall 
maintain complete records of the following information, which will be 
available for inspection by the Administrator, Regional Administrator, 
the Commandant of the U.S. Coast Guard, or their respective designees:
    (a) The physical and chemical characteristics of the material dumped 
pursuant to the permit;
    (b) The precise times and locations of dumping;
    (c) Any other information required as a condition of a permit by the 
Administrator or the Regional Administrator, as the case may be.

[42 FR 2474, Jan. 11, 1977, as amended at 73 FR 74986, Dec. 10, 2008]



Sec. 224.2  Reports.

    (a) Periodic reports. Information required to be recorded pursuant 
to Sec. 224.1 shall be reported to the Administrator or the Regional 
Administrator, as the case may be, for the periods indicated within 30 
days of the expiration of such periods:
    (1) For each six-month period, if any, following the effective date 
of the permit;
    (2) For any other period of less than six months ending on the 
expiration date of the permit; and
    (3) As otherwise required in the conditions of the permit.
    (b) Reports of emergency dumping. If material is dumped without a 
permit pursuant to paragraph (c)(4) of Sec. 220.1, the owner or 
operator of the vessel or aircraft from which such dumping occurs shall 
as soon as feasible inform the Administrator, Regional Administrator, or 
the nearest Coast Guard district of the incident by radio, telephone, or 
telegraph and shall within 10 days file a written report with the 
Administrator or Regional Administrator containing the information 
required under Sec. 224.1 and a complete description of the 
circumstances under which the dumping occurred. Such description shall 
explain how human life at sea was in danger and how the emergency 
dumping reduced that danger. If the material dumped included containers, 
the vessel owner or operator shall immediately request the U.S. Coast 
Guard to publish in the local Notice to Mariners the dumping location, 
the type of containers, and whether the contents are toxic or explosive. 
Notification shall also be given to the Food and Drug Administration, 
Shellfish Sanitation Branch, Washington, DC 20204, as soon as possible.

[42 FR 2474, Jan. 11, 1977]



PART 225_CORPS OF ENGINEERS DREDGED MATERIAL PERMITS--Table of Contents



Sec.
225.1 General.
225.2 Review of Dredged Material Permits.
225.3 Procedure for invoking economic impact.
225.4 Waiver by Administrator.

    Authority: 33 U.S.C. 1412 and 1418.

    Source: 42 FR 2475, Jan. 11, 1977, unless otherwise noted.



Sec. 225.1  General.

    Applications and authorizations for Dredged Material Permits under 
section 103 of the Act for the transportation of dredged material for 
the purpose of dumping it in ocean waters will be evaluated by the U.S. 
Army Corps of Engineers in accordance with the criteria set forth in 
part 227 and processed in accordance with 33 CFR 209.120 with special 
attention to Sec. 209.120(g)(17) and 33 CFR 209.145.



Sec. 225.2  Review of Dredged Material Permits.

    (a) The District Engineer shall send a copy of the public notice to 
the appropriate Regional Administrator, and set forth in writing all of 
the following information:
    (1) The location of the proposed disposal site and its physical 
boundaries;
    (2) A statement as to whether the site has been designated for use 
by the Administrator pursuant to section 102(c) of the Act;
    (3) If the proposed disposal site has not been designated by the 
Administrator, a statement of the basis for the proposed determination 
why no previously designated site is feasible and a description of the 
characteristics of the proposed disposal site necessary for its 
designation pursuant to part 228 of this subchapter H;

[[Page 205]]

    (4) The known historical uses of the proposed disposal site;
    (5) Existence and documented effects of other authorized dumpings 
that have been made in the dumping area (e.g., heavy metal background 
reading and organic carbon content);
    (6) An estimate of the length of time during which disposal will 
continue at the proposed site;
    (7) Characteristics and composition of the dredged material; and
    (8) A statement concerning a preliminary determination of the need 
for and/or availability of an environmental impact statement.
    (b) The Regional Administrator will within 15 days of the date the 
public notice and other information required to be submitted by 
paragraph (a) of Sec. 225.2 are received by him, review the information 
submitted and request from the District Engineer any additional 
information he deems necessary or appropriate to evaluate the proposed 
dumping.
    (c) Using the information submitted by the District Engineer, and 
any other information available to him, the Regional Administrator will 
within 15 days after receipt of all requested information, make an 
independent evaluation of the proposed dumping in accordance with the 
criteria and respond to the District Engineer pursuant to paragraph (d) 
or (e) of this section. The Regional Administrator may request an 
extension of this 15 day period to 30 days from the District Engineer.
    (d) When the Regional Administrator determines that the proposed 
dumping will comply with the criteria, he will so inform the District 
Engineer in writing.
    (e) When the Regional Administrator determines that the proposed 
dumping will not comply with the criteria he shall so inform the 
District Engineer in writing. In such cases, no Dredged Material Permit 
for such dumping shall be issued unless and until the provisions of 
Sec. 225.3 are followed and the Administrator grants a waiver of the 
criteria pursuant to Sec. 225.4.



Sec. 225.3  Procedure for invoking economic impact.

    (a) When a District Engineer's determination to issue a Dredged 
Material Permit for the dumping of dredged material into ocean waters 
has been rejected by a Regional Administrator upon application of the 
Criteria, the District Engineer may determine whether, under section 
103(d) of the Act, there is an economically feasible alternative method 
or site available other than the proposed dumping in ocean waters. If 
the District Engineer makes any such preliminary determination that 
there is no economically feasible alternative method or site available, 
he shall so advise the Regional Administrator setting forth his reasons 
for such determination and shall submit a report of such determination 
to the Chief of Engineers in accordance with 33 CFR 209.120 and 209.145.
    (b) If the decision of the Chief of Engineers is that ocean dumping 
at the designated site is required because of the unavailability of 
feasible alternatives, he shall so certify and request that the 
Secretary of the Army seek a waiver from the Administrator of the 
Criteria or of the critical site designation in accordance with Sec. 
225.4.



Sec. 225.4  Waiver by Administrator.

    The Administrator shall grant the requested waiver unless within 30 
days of his receipt of the notice, certificate and request in accordance 
with paragraph (b) of Sec. 225.3 he determines in accordance with this 
section that the proposed dumping will have an unacceptable adverse 
effect on municipal water supplies, shellfish beds and fishery areas 
(including spawning and breeding areas), wildlife, or recreational 
areas. Notice of the Administrator's final determination under this 
section shall be given to the Secretary of the Army.



PART 227_CRITERIA FOR THE EVALUATION OF PERMIT APPLICATIONS FOR OCEAN
DUMPING OF MATERIALS--Table of Contents



                            Subpart A_General

Sec.
227.1 Applicability.
227.2 Materials which satisfy the environmental impact criteria of 
          subpart B.

[[Page 206]]

227.3 Materials which do not satisfy the environmental impact criteria 
          set forth in subpart B.

                     Subpart B_Environmental Impact

227.4 Criteria for evaluating environmental impact.
227.5 Prohibited materials.
227.6 Constituents prohibited as other than trace contaminants.
227.7 Limits established for specific wastes or waste constituents.
227.8 Limitations on the disposal rates of toxic wastes.
227.9 Limitations on quantities of waste materials.
227.10 Hazards to fishing, navigation, shorelines or beaches.
227.11 Containerized wastes.
227.12 Insoluble wastes.
227.13 Dredged materials.

                    Subpart C_Need for Ocean Dumping

227.14 Criteria for evaluating the need for ocean dumping and 
          alternatives to ocean dumping.
227.15 Factors considered.
227.16 Basis for determination of need for ocean dumping.

 Subpart D_Impact of the Proposed Dumping on Esthetic, Recreational and 
                             Economic Values

227.17 Basis for determination.
227.18 Factors considered.
227.19 Assessment of impact.

   Subpart E_Impact of the Proposed Dumping on Other Uses of the Ocean

227.20 Basis for determination.
227.21 Uses considered.
227.22 Assessment of impact.

Subpart F [Reserved]

                          Subpart G_Definitions

227.27 Limiting permissible concentration (LPC).
227.28 Release zone.
227.29 Initial mixing.
227.30 High-level radioactive waste.
227.31 Applicable marine water quality criteria.
227.32 Liquid, suspended particulate, and solid phases of a material.

    Authority: 33 U.S.C. 1412 and 1418.

    Source: 42 FR 2476, Jan. 11, 1977, unless otherwise noted.



                            Subpart A_General



Sec. 227.1  Applicability.

    (a) Section 102 of the Act requires that criteria for the issuance 
of ocean disposal permits be promulgated after consideration of the 
environmental effect of the proposed dumping operation, the need for 
ocean dumping, alternatives to ocean dumping, and the effect of the 
proposed action on esthetic, recreational and economic values and on 
other uses of the ocean. These parts 227 and 228 of this subchapter H 
together constitute the criteria established pursuant to section 102 of 
the Act. The decision of the Administrator, Regional Administrator or 
the District Engineer, as the case may be, to issue or deny a permit and 
to impose specific conditions on any permit issued will be based on an 
evaluation of the permit application pursuant to the criteria set forth 
in this part 227 and upon the requirements for disposal site management 
pursuant to the cri teria set forth in part 228 of this sub chapter H.
    (b) With respect to the criteria to be used in evaluating disposal 
of dredged materials, this section and subparts C, D, E, and G apply in 
their entirety. To determine whether the proposed dumping of dredged 
material complies with subpart B, only Sec. Sec. 227.4, 227.5, 227.6, 
227.9, 227.10 and 227.13 apply. An applicant for a permit to dump 
dredged material must comply with all of subparts C, D, E, G and 
applicable sections of B, to be deemed to have met the EPA criteria for 
dredged material dumping promulgated pursuant to section 102(a) of the 
Act. If, in any case, the Chief of Engineers finds that, in the 
disposition of dredged material, there is no economically feasible 
method or site available other than a dumping site, the utilization of 
which would result in noncompliance with the criteria established 
pursuant to subpart B relating to the effects of dumping or with the 
restrictions established pursuant to section 102(c) of the Act relating 
to critical areas, he shall so certify and request that the Secretary of 
the Army seek a waiver from the Administrator pursuant to part 225.
    (c) The Criteria of this part 227 are established pursuant to 
section 102 of

[[Page 207]]

the Act and apply to the evaluation of proposed dumping of materials 
under title I of the Act. The Criteria of this part 227 deal with the 
evaluation of proposed dumping of materials on a case-by-case basis from 
information supplied by the applicant or otherwise available to EPA or 
the Corps of Engineers concerning the characteristics of the waste and 
other considerations relating to the proposed dumping.
    (d) After consideration of the provisions of Sec. Sec. 227.28 and 
227.29, no permit will be issued when the dumping would result in a 
violation of applicable water quality standards.



Sec. 227.2  Materials which satisfy the environmental impact criteria 
of subpart B.

    (a) If the applicant satisfactorily demonstrates that the material 
proposed for ocean dumping satisfies the environmental impact criteria 
set forth in subpart B, a permit for ocean dumping will be issued 
unless:
    (1) There is no need for the dumping, and alternative means of 
disposal are available, as determined in accordance with the criteria 
set forth in subpart C; or
    (2) There are unacceptable adverse effects on esthetic, recreational 
or economic values as determined in accordance with the criteria set 
forth in subpart D; or
    (3) There are unacceptable adverse effects on other uses of the 
ocean as determined in accordance with the criteria set forth in subpart 
E.
    (b) If the material proposed for ocean dumping satisfies the 
environmental impact criteria set forth in subpart B, but the 
Administrator or the Regional Administrator, as the case may be, 
determines that any one of the considerations set forth in paragraph 
(a)(1), (2) or (3) of this section applies, he or she, as the case may 
be, will deny the permit application.

[42 FR 2476, Jan. 11, 1977, as amended at 73 FR 74986, Dec. 10, 2008]



Sec. 227.3  Materials which do not satisfy the environmental impact
criteria set forth in subpart B.

    If the material proposed for ocean dumping does not satisfy the 
environmental impact criteria of subpart B of this part, the 
Administrator or the Regional Administrator, as the case may be, will 
deny the permit application.

[73 FR 74987, Dec. 10, 2008]



                     Subpart B_Environmental Impact



Sec. 227.4  Criteria for evaluating environmental impact.

    This subpart B sets specific environmental impact prohibitions, 
limits, and conditions for the dumping of materials into ocean waters. 
If the applicable prohibitions, limits, and conditions are satisfied, it 
is the determination of EPA that the proposed disposal will not unduly 
degrade or endanger the marine environment and that the disposal will 
present:
    (a) No unacceptable adverse effects on human health and no 
significant damage to the resources of the marine environment;
    (b) No unacceptable adverse effect on the marine ecosystem;
    (c) No unacceptable adverse persistent or permanent effects due to 
the dumping of the particular volumes or concentrations of these 
materials; and
    (d) No unacceptable adverse effect on the ocean for other uses as a 
result of direct environmental impact.



Sec. 227.5  Prohibited materials.

    The ocean dumping of the following materials will not be approved by 
EPA or the Corps of Engineers under any circumstances:
    (a) High-level radioactive wastes as defined in Sec. 227.30;
    (b) Materials in whatever form (including without limitation, 
solids, liquids, semi-liquids, gases or organisms) produced or used for 
radiological, chemical or biological warfare;
    (c) Materials insufficiently described by the applicant in terms of 
their compositions and properties to permit application of the 
environmental impact criteria of this subpart B;
    (d) Persistent inert synthetic or natural materials which may float 
or remain in suspension in the ocean in such a manner that they may 
interfere materially with fishing, navigation, or other legitimate uses 
of the ocean.

[[Page 208]]



Sec. 227.6  Constituents prohibited as other than trace contaminants.

    (a) Subject to the exclusions of paragraphs (f), (g) and (h) of this 
section, the ocean dumping, or transportation for dumping, of materials 
containing the following constituents as other than trace contaminants 
will not be approved on other than an emergency basis:
    (1) Organohalogen compounds;
    (2) Mercury and mercury compounds;
    (3) Cadmium and cadmium compounds;
    (4) Oil of any kind or in any form, including but not limited to 
petroleum, oil sludge, oil refuse, crude oil, fuel oil, heavy diesel 
oil, lubricating oils, hydraulic fluids, and any mixtures containing 
these, transported for the purpose of dumping insofar as these are not 
regulated under the FWPCA;
    (5) Known carcinogens, mutagens, or teratogens or materials 
suspected to be carcinogens, mutagens, or teratogens by responsible 
scientific opinion.
    (b) These constituents will be considered to be present as trace 
contaminants only when they are present in materials otherwise 
acceptable for ocean dumping in such forms and amounts in liquid, 
suspended particulate, and solid phases that the dumping of the 
materials will not cause sig nificant undesirable effects, including the 
possibility of danger associated with their bioaccumulation in marine 
organisms.
    (c) The potential for significant undesirable effects due to the 
presence of these constituents shall be determined by application of 
results of bioassays on liquid, suspended particulate, and solid phases 
of wastes according to procedures acceptable to EPA, and for dredged 
material, acceptable to EPA and the Corps of Engineers. Materials shall 
be deemed environmentally acceptable for ocean dumping only when the 
following conditions are met:
    (1) The liquid phase does not contain any of these constituents in 
concentrations which will exceed applicable marine water quality 
criteria after allowance for initial mixing; provided that mercury 
concentrations in the disposal site, after allowance for initial mixing, 
may exceed the average normal ambient concentrations of mercury in ocean 
waters at or near the dumping site which would be present in the absence 
of dumping, by not more than 50 percent; and
    (2) Bioassay results on the suspended particulate phase of the waste 
do not indicate occurrence of significant mortality or significant 
adverse sublethal effects due to the dumping of wastes containing the 
constituents listed in paragraph (a) of this section. These bioassays 
shall be conducted with appropriate sensitive marine organisms as 
defined in Sec. 227.27(c) using procedures for suspended particulate 
phase bioassays approved by EPA, or, for dredged material, approved by 
EPA and the Corps of Engineers. Procedures approved for bioassays under 
this section will require exposure of organisms for a sufficient period 
of time and under appropriate conditions to provide reasonable 
assurance, based on consideration of the statistical significance of 
effects at the 95 percent confidence level, that, when the materials are 
dumped, no significant undesirable effects will occur due to chronic 
toxicity of the constituents listed in paragraph (a) of this section; 
and
    (3) Bioassay results on the solid phase of the wastes do not 
indicate occurrence of significant mortality or significant adverse 
sublethal effects due to the dumping of wastes containing the 
constituents listed in paragraph (a) of this section. These bioassays 
shall be conducted with appropriate sensitive benthic marine organisms 
using benthic bioassay procedures approved by EPA, or, for dredged 
material, approved by EPA and the Corps of Engineers. Procedures 
approved for bioassays under this section will require exposure of 
organisms for a sufficient period of time to provide reasonable 
assurance, based on considerations of statistical significance of 
effects at the 95 percent confidence level, that, when the materials are 
dumped, no significant undesirable effects will occur due either to 
chronic toxicity or to bioaccumulation of the constituents listed in 
paragraph (a) of this section; and
    (4) For persistent organohalogens not included in the applicable 
marine water quality criteria, bioassay results on the liquid phase of 
the waste show

[[Page 209]]

that such compounds are not present in concentrations large enough to 
cause significant undesirable effects due either to chronic toxicity or 
to bio ac cumu la tion in marine organisms after allowance for initial 
mixing.
    (d) When the Administrator, Regional Administrator or District 
Engineer, as the case may be, has reasonable cause to believe that a 
material proposed for ocean dumping contains compounds identified as 
carcinogens, mutagens, or teratogens for which criteria have not been 
included in the applicable marine water quality criteria, he may require 
special studies to be done prior to issuance of a permit to determine 
the impact of disposal on human health and/or marine ecosystems. Such 
studies must provide information comparable to that required under 
paragraph (c)(3) of this section.
    (e) The criteria stated in paragraphs (c)(2) and (3) of this section 
are mandatory. The availability of acceptable procedures was announced 
in the Federal Register in 1991 and 1996.
    (f) The prohibitions and limitations of this section do not apply to 
the constituents identified in paragraph (a) of this section when the 
applicant can demonstrate that such constituents are (1) present in the 
material only as chemical compounds or forms (e.g., inert insoluble 
solid materials) non-toxic to marine life and non-bioaccumulative in the 
marine environment upon disposal and thereafter, or (2) present in the 
material only as chemical compounds or forms which, at the time of 
dumping and thereafter, will be rapidly rendered non-toxic to marine 
life and non-bioaccumulative in the marine environment by chemical or 
biological degradation in the sea; provided they will not make edible 
marine organisms unpalatable; or will not endanger human health or that 
of domestic animals, fish, shellfish, or wildlife.
    (g) The prohibitions and limitations of this section do not apply to 
the constituents identified in paragraph (a) of this section for the 
granting of research permits if the substances are rapidly rendered 
harmless by physical, chemical or biological processes in the sea; 
provided they will not make edible marine organisms unpalatable and will 
not endanger human health or that of domestic animals.
    (h) The prohibitions and limitations of this section do not apply to 
the constituents identified in paragraph (a) of this section for the 
granting of permits for the transport of these substances for the 
purpose of incineration at sea if the applicant can demonstrate that the 
stack emissions consist of substances which are rapidly rendered 
harmless by physical, chemical or biological processes in the sea. 
Incinerator operations shall comply with requirements which will be 
established on a case-by-case basis.

[42 FR 2476, Jan. 11, 1977; 43 FR 1071, Jan. 6, 1978, as amended at 59 
FR 26572, May 20, 1994; 59 FR 52652, Oct. 18, 1994; 73 FR 74987, Dec. 
10, 2008]



Sec. 227.7  Limits established for specific wastes or waste constituents.

    Materials containing the following constituents must meet the 
additional limitations specified in this section to be deemed acceptable 
for ocean dumping:
    (a) Liquid waste constituents immiscible with or slightly soluble in 
seawater, such as benzene, xylene, carbon disulfide and toluene, may be 
dumped only when they are present in the waste in concentrations below 
their solubility limits in seawater. This provision does not apply to 
materials which may interact with ocean water to form insoluble 
materials;
    (b) Radioactive materials, other than those prohibited by Sec. 
227.5, must be contained in accordance with the provisions of Sec. 
227.11 to prevent their direct dispersion or dilution in ocean waters;
    (c) Wastes containing living organisms may not be dumped if the 
organisms present would endanger human health or that of domestic 
animals, fish, shellfish and wildlife by:
    (1) Extending the range of biological pests, viruses, pathogenic 
microorganisms or other agents capable of infesting, infecting or 
extensively and permanently altering the normal populations of 
organisms;
    (2) Degrading uninfected areas; or
    (3) Introducing viable species not indigenous to an area.

[[Page 210]]

    (d) In the dumping of wastes of highly acidic or alkaline nature 
into the ocean, consideration shall be given to:
    (1) The effects of any change in acidity or alkalinity of the water 
at the disposal site; and
    (2) The potential for synergistic effects or for the formation of 
toxic compounds at or near the disposal site. Allowance may be made in 
the permit conditions for the capability of ocean waters to neutralize 
acid or alkaline wastes; provided, however, that dumping conditions must 
be such that the average total alkalinity or total acidity of the ocean 
water after allowance for initial mixing, as defined in Sec. 227.29, 
may be changed, based on stoichiometric calculations, by no more than 10 
percent during all dumping operations at a site to neutralize acid or 
alkaline wastes.
    (e) Wastes containing biodegradable constituents, or constituents 
which consume oxygen in any fashion, may be dumped in the ocean only 
under conditions in which the dissolved oxygen after allowance for 
initial mixing, as defined in Sec. 227.29, will not be depressed by 
more than 25 percent below the normally anticipated ambient conditions 
in the disposal area at the time of dumping.



Sec. 227.8  Limitations on the disposal rates of toxic wastes.

    No wastes will be deemed acceptable for ocean dumping unless such 
wastes can be dumped so as not to exceed the limiting permissible 
concentration as defined in Sec. 227.27; Provided, That this Sec. 
227.8 does not apply to those wastes for which specific criteria are 
established in Sec. 227.11 or Sec. 227.12. Total quantities of wastes 
dumped at a site may be limited as described in Sec. 228.8.



Sec. 227.9  Limitations on quantities of waste materials.

    Substances which may damage the ocean environment due to the 
quantities in which they are dumped, or which may seriously reduce 
amenities, may be dumped only when the quantities to be dumped at a 
single time and place are controlled to prevent long-term damage to the 
environment or to amenities.



Sec. 227.10  Hazards to fishing, navigation, shorelines or beaches.

    (a) Wastes which may present a serious obstacle to fishing or 
navigation may be dumped only at disposal sites and under conditions 
which will insure no unacceptable interference with fishing or 
navigation.
    (b) Wastes which may present a hazard to shorelines or beaches may 
be dumped only at sites and under conditions which will insure no 
unacceptable danger to shorelines or beaches.



Sec. 227.11  Containerized wastes.

    (a) Wastes containerized solely for transport to the dumping site 
and expected to rupture or leak on impact or shortly thereafter must 
meet the appropriate requirements of Sec. Sec. 227.6, 227.7, 227.8, 
227.9, and 227.10.
    (b) Other containerized wastes will be approved for dumping only 
under the following conditions:
    (1) The materials to be disposed of decay, decompose or radiodecay 
to environmentally innocuous materials within the life expectancy of the 
containers and/or their inert matrix; and
    (2) Materials to be dumped are present in such quantities and are of 
such nature that only short-term localized adverse effects will occur 
should the containers rupture at any time; and
    (3) Containers are dumped at depths and locations where they will 
cause no threat to navigation, fishing, shorelines, or beaches.



Sec. 227.12  Insoluble wastes.

    (a) Solid wastes consisting of inert natural minerals or materials 
compatible with the ocean environment may be generally approved for 
ocean dumping provided they are insoluble above the applicable trace or 
limiting permissible concentrations and are rapidly and completely 
settleable, and they are of a particle size and density that they would 
be deposited or rapidly dispersed without damage to benthic, demersal, 
or pelagic biota.
    (b) Persistent inert synthetic or natural materials which may float 
or remain in suspension in the ocean as prohibited in paragraph (d) of 
Sec. 227.5 may be dumped in the ocean only when they have been 
processed in such a fashion

[[Page 211]]

that they will sink to the bottom and remain in place.



Sec. 227.13  Dredged materials.

    (a) Dredged materials are bottom sediments or materials that have 
been dredged or excavated from the navigable waters of the United 
States, and their disposal into ocean waters is regulated by the U.S. 
Army Corps of Engineers using the criteria of applicable sections of 
parts 227 and 228. Dredged material consists primarily of natural 
sediments or materials which may be contaminated by municipal or 
industrial wastes or by runoff from terrestrial sources such as 
agricultural lands.
    (b) Dredged material which meets the criteria set forth in the 
following paragraphs (b)(1), (2), or (3) of this section is 
environmentally acceptable for ocean dumping without further testing 
under this section:
    (1) Dredged material is composed predominantly of sand, gravel, 
rock, or any other naturally occurring bottom material with particle 
sizes larger than silt, and the material is found in areas of high 
current or wave energy such as streams with large bed loads or coastal 
areas with shifting bars and channels; or
    (2) Dredged material is for beach nourishment or restoration and is 
composed predominantly of sand, gravel or shell with particle sizes 
compatible with material on the receiving beaches; or
    (3) When: (i) The material proposed for dumping is substantially the 
same as the substrate at the proposed disposal site; and
    (ii) The site from which the material proposed for dumping is to be 
taken is far removed from known existing and historical sources of 
pollution so as to provide reasonable assurance that such material has 
not been contaminated by such pollution.
    (c) When dredged material proposed for ocean dumping does not meet 
the criteria of paragraph (b) of this section, further testing of the 
liquid, suspended particulate, and solid phases, as defined in Sec. 
227.32, is required. Based on the results of such testing, dredged 
material can be considered to be environmentally acceptable for ocean 
dumping only under the following conditions:
    (1) The material is in compliance with the requirements of Sec. 
227.6; and
    (2)(i) All major constituents of the liquid phase are in compliance 
with the applicable marine water quality criteria after allowance for 
initial mixing; or
    (ii) When the liquid phase contains major constituents not included 
in the applicable marine water quality criteria, or there is reason to 
suspect synergistic effects of certain contaminants, bioassays on the 
liquid phase of the dredged material show that it can be discharged so 
as not to exceed the limiting permissible concentration as defined in 
paragraph (a) of Sec. 227.27; and
    (3) Bioassays on the suspended particulate and solid phases show 
that it can be discharged so as not to exceed the limiting permissible 
concentration as defined in paragraph (b) of Sec. 227.27.
    (d) For the purposes of paragraph (c)(2) of this section, major 
constituents to be analyzed in the liquid phase are those deemed 
critical by the District Engineer, after evaluating and considering any 
comments received from the Regional Administrator, and considering known 
sources of discharges in the area.



                    Subpart C_Need for Ocean Dumping



Sec. 227.14  Criteria for evaluating the need for ocean dumping and 
alternatives to ocean dumping.

    This subpart C states the basis on which an evaluation will be made 
of the need for ocean dumping, and alternatives to ocean dumping. The 
nature of these factors does not permit the promulgation of specific 
quantitative criteria of each permit application. These factors will 
therefore be evaluated if applicable for each proposed dumping on an 
individual basis using the guidelines specified in this subpart C.



Sec. 227.15  Factors considered.

    The need for dumping will be determined by evaluation of the 
following factors:
    (a) Degree of treatment useful and feasible for the waste to be 
dumped,

[[Page 212]]

and whether or not the waste material has been or will be treated to 
this degree before dumping;
    (b) Raw materials and manufacturing or other processes resulting in 
the waste, and whether or not these materials or processes are essential 
to the provision of the applicant's goods or services, or if other less 
polluting materials or processes could be used;
    (c) The relative environmental risks, impact and cost for ocean 
dumping as opposed to other feasible alternatives including but not 
limited to:
    (1) Land fill;
    (2) Well injection;
    (3) Incineration;
    (4) Spread of material over open ground;
    (5) Recycling of material for reuse;
    (6) Additional biological, chemical, or physical treatment of 
intermediate or final waste streams;
    (7) Storage.
    (d) Irreversible or irretrievable consequences of the use of 
alternatives to ocean dumping.



Sec. 227.16  Basis for determination of need for ocean dumping.

    (a) A need for ocean dumping will be considered to have been 
demonstrated when a thorough evaluation of the factors listed in Sec. 
227.15 has been made, and the Administrator, Regional Administrator or 
District Engineer, as the case may be, has determined that the following 
conditions exist where applicable:
    (1) There are no practicable improvements which can be made in 
process technology or in overall waste treatment to reduce the adverse 
impacts of the waste on the total environment;
    (2) There are no practicable alternative locations and methods of 
disposal or recycling available, including without limitation, storage 
until treatment facilities are completed, which have less adverse 
environmental impact or potential risk to other parts of the environment 
than ocean dumping.
    (b) For purposes of paragraph (a) of this section, waste treatment 
or improvements in processes and alternative methods of disposal are 
practicable when they are available at reasonable incremental cost and 
energy expenditures, which need not be competitive with the costs of 
ocean dumping, taking into account the environmental benefits derived 
from such activity, including the relative adverse environmental impacts 
associated with the use of alternatives to ocean dumping.
    (c) The duration of permits issued under subchapter H and other 
terms and conditions imposed in those permits shall be determined after 
taking into account the factors set forth in this section. 
Notwithstanding compliance with subparts B, D, and E of this part 227 
permittees may, on the basis of the need for and alternatives to ocean 
dumping, be required to terminate all ocean dumping by a specified date, 
to phase out all ocean dumping over a specified period or periods, to 
continue research and development of alternative methods of disposal and 
make periodic reports of such research and development in order to 
provide additional information for periodic review of the need for and 
alternatives to ocean dumping, or to take such other action as the 
Administrator, the Regional Administrator, or District Engineer, as the 
case may be, determines to be necessary or appropriate.



 Subpart D_Impact of the Proposed Dumping on Esthetic, Recreational and 
                             Economic Values



Sec. 227.17  Basis for determination.

    (a) The impact of dumping on esthetic, recreational and economic 
values will be evaluated on an individual basis using the following 
considerations:
    (1) Potential for affecting recreational use and values of ocean 
waters, inshore waters, beaches, or shorelines;
    (2) Potential for affecting the recreational and commercial values 
of living marine resources.
    (b) For all proposed dumping, full consideration will be given to 
such nonquantifiable aspects of esthetic, recreational and economic 
impact as:
    (1) Responsible public concern for the consequences of the proposed 
dumping;

[[Page 213]]

    (2) Consequences of not authorizing the dumping including without 
limitation, the impact on esthetic, recreational and economic values 
with respect to the municipalities and industries involved.



Sec. 227.18  Factors considered.

    The assessment of the potential for impacts on esthetic, 
recreational and economic values will be based on an evaluation of the 
appropriate characteristics of the material to be dumped, allowing for 
conservative rates of dilution, dispersion, and biochemical degradation 
during movement of the materials from a disposal site to an area of 
significant recreational or commercial value. The following specific 
factors will be considered in making such an assessment:
    (a) Nature and extent of present and potential recreational and 
commercial use of areas which might be affected by the proposed dumping;
    (b) Existing water quality, and nature and extent of disposal 
activities, in the areas which might be affected by the proposed 
dumping;
    (c) Applicable water quality standards;
    (d) Visible characteristics of the materials (e.g., color, suspended 
particulates) which result in an unacceptable estetic nuisance in 
recreational areas;
    (e) Presence in the material of pathogenic organisms which may cause 
a public health hazard either directly or through contamination of 
fisheries or shellfisheries;
    (f) Presence in the material of toxic chemical constituents released 
in volumes which may affect humans directly;
    (g) Presence in the material of chemical constituents which may be 
bioaccumulated or persistent and may have an adverse effect on humans 
directly or through food chain interactions;
    (h) Presence in the material of any constituents which might 
significantly affect living marine resources of recreational or 
commercial value.



Sec. 227.19  Assessment of impact.

    An overall assessment of the proposed dumping and possible 
alternative methods of disposal or recycling will be made based on the 
effect on esthetic, recreational and economic values based on the 
factors set forth in this subpart D, including where applicable, 
enhancement of these values, and the results of the assessment will be 
expressed, where possible, on a quantitative basis, such as percentage 
of a resource lost, reduction in use days of recreational areas, or 
dollars lost in commercial fishery profits or the profitability of other 
commercial enterprises.



   Subpart E_Impact of the Proposed Dumping on Other Uses of the Ocean



Sec. 227.20  Basis for determination.

    (a) Based on current state of the art, consideration must be given 
to any possible long-range effects of even the most innocuous substances 
when dumped in the ocean on a continuing basis. Such a consideration is 
made in evaluating the relationship of each proposed disposal activity 
in relationship to its potential for long-range impact on other uses of 
the ocean.
    (b) An evaluation will be made on an individual basis for each 
proposed dumping of material of the potential for effects on uses of the 
ocean for purposes other than material disposal. The factors to be 
considered in this evaluation include those stated in subpart D, but the 
evaluation of this subpart E will be based on the impact of the proposed 
dumping on specific uses of the ocean rather than on overall esthetic, 
recreational and economic values.



Sec. 227.21  Uses considered.

    An appraisal will be made of the nature and extent of existing and 
potential uses of the disposal site itself and of any areas which might 
reasonably be expected to be affected by the proposed dumping, and a 
quantitative and qualitative evaluation made, where feasible, of the 
impact of the proposed dumping on each use. The uses considered shall 
include, but not be limited to:
    (a) Commercial fishing in open ocean areas;
    (b) Commercial fishing in coastal areas;
    (c) Commercial fishing in estuarine areas;

[[Page 214]]

    (d) Recreational fishing in open ocean areas;
    (e) Recreational fishing in coastal areas;
    (f) Recreational fishing in estuarine areas;
    (g) Recreational use of shorelines and beaches;
    (h) Commercial navigation;
    (i) Recreational navigation;
    (j) Actual or anticipated exploitation of living marine resources;
    (k) Actual or anticipated exploitation of non-living resources, 
including without limitation, sand and gravel places and other mineral 
deposits, oil and gas exploration and development and offshore marine 
terminal or other structure development; and
    (l) Scientific research and study.



Sec. 227.22  Assessment of impact.

    The assessment of impact on other uses of the ocean will consider 
both temporary and long-range effects within the state of the art, but 
particular emphasis will be placed on any irreversible or irretrievable 
commitment of resources that would result from the proposed dumping.

Subpart F [Reserved]



                          Subpart G_Definitions



Sec. 227.27  Limiting permissible con cen tra tion (LPC).

    (a) The limiting permissible concentration of the liquid phase of a 
material is:
    (1) That concentration of a constituent which, after allowance for 
initial mixing as provided in Sec. 227.29, does not exceed applicable 
marine water quality criteria; or, when there are no applicable marine 
water quality criteria,
    (2) That concentration of waste or dredged material in the receiving 
water which, after allowance for initial mixing, as specified in Sec. 
227.29, will not exceed a toxicity threshold defined as 0.01 of a 
concentration shown to be acutely toxic to appropriate sensitive marine 
organisms in a bioassay carried out in accordance with approved EPA 
procedures.
    (3) When there is reasonable scientific evidence on a specific waste 
material to justify the use of an application factor other than 0.01 as 
specified in paragraph (a)(2) of this section, such alternative 
application factor shall be used in calculating the LPC.
    (b) The limiting permissible concentration of the suspended 
particulate and solid phases of a material means that concentration 
which will not cause unreasonable acute or chronic toxicity or other 
sublethal adverse effects based on bioassay results using appropriate 
sensitive marine organisms in the case of the suspended particulate 
phase, or appropriate sensitive benthic marine organisms in the case of 
the solid phase; and which will not cause accumulation of toxic 
materials in the human food chain. Suspended particulate phase 
bioaccumulation testing is not required. These bioassays are to be 
conducted in accordance with procedures approved by EPA, or, in the case 
of dredged material, approved by EPA and the Corps of Engineers.
    (c) Appropriate sensitive marine organisms means at least one 
species each representative of phytoplankton or zooplankton, crustacean 
or mollusk, and fish species chosen from among the most sensitive 
species documented in the scientific literature or accepted by EPA as 
being reliable test organisms to determine the anticipated impact of the 
wastes on the ecosystem at the disposal site. Bioassays, except on 
phytoplankton or zooplankton, shall be run for a minimum of 96 hours 
under temperature, salinity, and dissolved oxygen conditions 
representing the extremes of environmental stress at the disposal site. 
Bioassays on phytoplankton or zooplankton may be run for shorter periods 
of time as appropriate for the organisms tested at the discretion of 
EPA, or EPA and the Corps of Engineers, as the case may be.
    (d) Appropriate sensitive benthic marine organisms means two or more 
species that together represent filter-feeding, deposit-feeding, and 
burrowing characteristics. These organisms shall be chosen from among 
the species that are most sensitive for each type they represent, and 
that are documented in the scientific literature and accepted by EPA as 
being reliable test organisms to

[[Page 215]]

determine the anticipated impact on the site.

[42 FR 2476, Jan. 11, 1977; 43 FR 1071, Jan. 6, 1978, as amended at 59 
FR 26572, May 20, 1994; 59 FR 52652, Oct. 18, 1994; 61 FR 51203, Sept. 
30, 1996; 65 FR 47325, Aug. 2, 2000; 73 FR 74987, Dec. 10, 2008]



Sec. 227.28  Release zone.

    The release zone is the area swept out by the locus of points 
constantly 100 meters from the perimeter of the conveyance engaged in 
dumping activities, beginning at the first moment in which dumping is 
scheduled to occur and ending at the last moment in which dumping is 
scheduled to occur. No release zone shall exceed the total surface area 
of the dumpsite.



Sec. 227.29  Initial mixing.

    (a) Initial mixing is defined to be that dispersion or diffusion of 
liquid, suspended particulate, and solid phases of a waste which occurs 
within four hours after dumping. The limiting permissible concentration 
shall not be exceeded beyond the boundaries of the disposal site during 
initial mixing, and shall not be exceeded at any point in the marine 
environment after initial mixing. The maximum concentration of the 
liquid, suspended particulate, and solid phases of a dumped material 
after initial mixing shall be estimated by one of these methods, in 
order of preference:
    (1) When field data on the proposed dumping are adequate to predict 
initial dispersion and diffusion of the waste, these shall be used, if 
necessary, in conjunction with an appropriate mathematical model 
acceptable to EPA or the District Engineer, as appropriate.
    (2) When field data on the dispersion and diffusion of a waste of 
characteristics similar to that proposed for discharge are available, 
these shall be used in conjunction with an appropriate mathematical 
model acceptable to EPA or the District Engineer, as appropriate.
    (3) When no field data are available, theoretical oceanic turbulent 
diffusion relationships may be applied to known characteristics of the 
waste and the disposal site.
    (b) When no other means of estimation are feasible.
    (1) The liquid and suspended particulate phases of the dumped waste 
may be assumed to be evenly distributed after four hours over a column 
of water bounded on the surface by the release zone and extending to the 
ocean floor, thermocline, or halocline if one exists, or to a depth of 
20 meters, whichever is shallower, and
    (2) The solid phase of a dumped waste may be assumed to settle 
rapidly to the ocean bottom and to be distributed evenly over the ocean 
bottom in an area equal to that of the release zone as defined in Sec. 
227.28.
    (c) When there is reasonable scientific evidence to demonstrate that 
other methods of estimating a reasonable allowance for initial mixing 
are appropriate for a specific material, such methods may be used with 
the concurrence of EPA after appropriate scientific review.



Sec. 227.30  High-level radioactive waste.

    High-level radioactive waste means the aqueous waste resulting from 
the operation of the first cycle solvent extraction system, or 
equivalent, and the concentrated waste from subsequent extraction 
cycles, or equivalent, in a facility for reprocessing irradiated reactor 
fuels or irradiated fuel from nuclear power reactors.



Sec. 227.31  Applicable marine water quality criteria.

    Applicable marine water quality criteria means the criteria given 
for marine waters in the EPA publication ``Quality Criteria for Water'' 
as published in 1976 and amended by subsequent supplements or additions.



Sec. 227.32  Liquid, suspended particulate, and solid phases of a material.

    (a) For the purposes of these regulations, the liquid phase of a 
material, subject to the exclusions of paragraph (b) of this section, is 
the supernatant remaining after one hour undisturbed settling, after 
centrifugation and filtration through a 0.45 micron filter. The 
suspended particulate phase is the supernatant as obtained above prior 
to centrifugation and filtration. The solid phase includes all material 
settling to the bottom in one hour. Settling shall

[[Page 216]]

be conducted according to procedures approved by EPA.
    (b) For dredged material, other material containing large 
proportions of insoluble matter, materials which may interact with ocean 
water to form insoluble matter or new toxic compounds, or materials 
which may release toxic compounds upon deposition, the Administrator, 
Regional Administrator, or the District Engineer, as the case may be, 
may require that the separation of liquid, suspended particulate, and 
solid phases of the material be performed upon a mixture of the waste 
with ocean water rather than on the material itself. In such cases the 
following procedures shall be used:
    (1) For dredged material, the liquid phase is considered to be the 
centrifuged and 0.45 micron filtered supernatant remaining after one 
hour undisturbed settling of the mixture resulting from a vigorous 30-
minute agitation of one part bottom sediment from the dredging site with 
four parts water (vol/vol) collected from the dredging site or from the 
disposal site, as appropriate for the type of dredging operation. The 
suspended particulate phase is the supernatant as obtained above prior 
to centrifugation and filtration. The solid phase is considered to be 
all material settling to the bottom within one hour. Settling shall be 
conducted by procedures approved by EPA and the Corps of Engineers.
    (2) For other materials, the proportion of ocean water used shall be 
the minimum amount necessary to produce the anticipated effect (e.g., 
complete neutralization of an acid or alkaline waste) based on guidance 
provided by EPA on particular cases, or in accordance with approved EPA 
procedures. For such materials the liquid phase is the filtered and 
centrifuged supernatant resulting from the mixture after 30 minutes of 
vigorous shaking followed by undisturbed settling for one hour. The 
suspended particulate phase is the supernatant as obtained above prior 
to centrifugation and filtration. The solid phase is the insoluble 
material settling to the bottom in that period.



PART 228_CRITERIA FOR THE MANAGEMENT OF DISPOSAL SITES FOR OCEAN 
DUMPING--Table of Contents



Sec.
228.1 Applicability.
228.2 Definitions.
228.3 Disposal site management responsibilities.
228.4 Procedures for designation of sites.
228.5 General criteria for the selection of sites.
228.6 Specific criteria for site selection.
228.7 Regulation of disposal site use.
228.8 Limitations on times and rates of disposal.
228.9 Disposal site monitoring.
228.10 Evaluating disposal impact.
228.11 Modification in disposal site use.
228.12 [Reserved]
228.13 Guidelines for ocean disposal site baseline or trend assessment 
          surveys under section 102 of the Act.
228.14 [Reserved]
228.15 Dumping sites designated on a final basis.

    Authority: 33 U.S.C. 1412 and 1418.

    Source: 42 FR 2482, Jan. 11, 1977, unless otherwise noted.



Sec. 228.1  Applicability.

    The criteria of this part 228 are established pursuant to section 
102 of the Act and apply to the evaluation of proposed ocean dumping 
under title I of the Act. The criteria of this part 228 deal with the 
evaluation of the proposed dumping of material in ocean waters in 
relation to continuing requirements for effective management of ocean 
disposal sites to prevent unreasonable degradation of the marine 
environment from all wastes being dumped in the ocean. This part 228 is 
applicable to dredged material disposal sites only as specified in 
Sec. Sec. 228.4(e), 228.9, and 228.12.



Sec. 228.2  Definitions.

    (a) The term disposal site means a finally approved and precise 
geographical area within which ocean dumping of wastes is permitted 
under conditions specified in permits issued under sections 102 and 103 
of the Act. Such sites are identified by boundaries established by 
coordinates of latitude and longitude for each corner, or by coordinates 
of latitude and longitude for

[[Page 217]]

the center point and a radius in nautical miles from that point. 
Boundary coordinates shall be identified as precisely as is warranted by 
the accuracy with which the site can be located with existing 
navigational aids or by the implantation of transponders, buoys or other 
means of marking the site.
    (b) The term baseline or trend assessment survey means the planned 
sampling or measurement of parameters at set stations or in set areas in 
and near disposal sites for a period of time sufficient to provide 
synoptic data for determining water quality, benthic, or biological 
conditions as a result of ocean disposal operations. The minimum 
requirements for such surveys are given in Sec. 228.13.
    (c) The term disposal site evaluation study means the collection, 
analysis, and interpretation of all pertinent information available 
concerning an existing disposal site, including but not limited to, data 
and information from trend assessment surveys, monitoring surveys, 
special purpose surveys of other Federal agencies, public data archives, 
and social and economic studies and records of affected areas.
    (d) The term disposal site designation study means the collection, 
analysis and interpretation of all available pertinent data and 
information on a proposed disposal site prior to use, including but not 
limited to, that from baseline surveys, special purpose surveys of other 
Federal agencies, public data archives, and social and economic studies 
and records of areas which would be affected by use of the proposed 
site.
    (e) The term management authority means the EPA organizational 
entity assigned responsibility for implementing the management functions 
identified in Sec. 228.3.
    (f) Statistical significance shall mean the statistical significance 
determined by using appropriate standard techniques of multivariate 
analysis with results interpreted at the 95 percent confidence level and 
based on data relating species which are present in sufficient numbers 
at control areas to permit a valid statistical comparison with the areas 
being tested.
    (g) Valuable commercial and recreational species shall mean those 
species for which catch statistics are compiled on a routine basis by 
the Federal or State agency responsible for compiling such statistics 
for the general geographical area impacted, or which are under current 
study by such Federal or State agencies for potential development for 
commercial or recreational use.
    (h) Normal ambient value means that concentration of a chemical 
species reasonably anticipated to be present in the water column, 
sediments, or biota in the absence of disposal activities at the 
disposal site in question.

[42 FR 2482, Jan. 11, 1977, as amended at 73 FR 74987, Dec. 10, 2008]



Sec. 228.3  Disposal site management responsibilities.

    (a) Management of a site consists of regulating times, rates, and 
methods of disposal and quantities and types of materials disposed of; 
developing and maintaining effective ambient monitoring programs for the 
site; conducting disposal site evaluation and designation studies; and 
recommending modifications in site use and/or designation (e.g., 
termination of use of the site for general use or for disposal of 
specific wastes).
    (b) Each site, upon final designation, will be assigned to either an 
EPA Regional office or to EPA Headquarters for management. These 
designations will be consistent with the delegation of authority in 
Sec. 220.4 of this chapter. The designated management authority is 
fully responsible for all aspects of the management of sites within the 
general requirements specified in Sec. 220.4 and this chapter. Specific 
requirements for meeting the management responsibilities assigned to the 
designated management authority for each site are outlined in Sec. Sec. 
228.5 and 228.6.

[42 FR 2482, Jan. 11, 1977, as amended at 59 FR 61129, Nov. 29, 1994; 73 
FR 74987, Dec. 10, 2008]



Sec. 228.4  Procedures for designation of sites.

    (a) General Permits. Geographical areas or regions within which 
materials may be dumped under a general permit will be published as part 
of the promulgation of each general permit.
    (b) Special permits. Areas where ocean dumping is permitted subject 
to the

[[Page 218]]

specific conditions of individual special permits, will be designated by 
promulgation in this part 228, and such designation will be made based 
on environmental studies of each site, regions adjacent to the site, and 
on historical knowledge of the impact of waste disposal on areas similar 
to such sites in physical, chemical, and biological characteristics. All 
studies for the evaluation and potential selection of dumping sites will 
be conducted in accordance with the requirements of Sec. Sec. 228.5 and 
228.6. The Administrator may, from time to time, designate specific 
locations for temporary use for disposal of small amounts of materials 
under a special permit only without disposal site designation studies 
when such materials satisfy the Criteria and the Administrator 
determines that the quantities to be disposed of at such sites will not 
result in significant impact on the environment. Such designations will 
be done by promulgation in this part 228, and will be for a specified 
period of time and for specified quantities of materials.
    (c) Emergency Permits. Dumping sites for materials disposed of under 
an emergency permit will be specified by the Administrator as a permit 
condition and will be based on an individual appraisal of the 
characteristics of the waste and the safest means for its disposal.
    (d) Research Permits. Dumping sites for research permits will be 
determined by the nature of the proposed study. Dumping sites will be 
specified by the Administrator as a permit condition.
    (e) Dredged Material Permits. (1) Areas where ocean dumping of 
dredged material is permitted subject to the specific conditions of 
Dredged Material permits issued by the U.S. Army Corps of Engineers will 
be designated by EPA promulgation in this part 228, and such designation 
will be made based on environmental studies of each site, regions 
adjacent to the site, and on historical knowledge of the impact of 
dredged material disposal on areas similar to such sites in physical, 
chemical, and biological characteristics. All studies for the evaluation 
and potential selection of dredged material disposal sites will be 
conducted in accordance with the appropriate requirements of Sec. Sec. 
228.5 and 228.6, except that:
    (i) Baseline or trend assessment requirements may be developed on a 
case-by-case basis from the results of research, including that now in 
progress by the Corps of Engineers.
    (ii) An environmental impact assessment for all sites within a 
particular geographic area may be prepared based on complete disposal 
site designation or evaluation studies on a typical site or sites in 
that area. In such cases, sufficient studies to demonstrate the generic 
similarity of all sites within such a geographic area will be conducted.
    (2) In those cases where a recommended disposal site has not been 
designated by the Administrator, or where it is not feasible to utilize 
a recommended disposal site that has been designated by the 
Administrator, the District Engineer shall, in consultation with EPA, 
select a site in accordance with the requirements of Sec. Sec. 228.5 
and 228.6(a). Concurrence by EPA in permits issued for the use of such 
site for the dumping of dredged material at the site will constitute EPA 
approval of the use of the site for dredged material disposal only.
    (3) Sites designated for the ocean dumping of dredged material in 
accordance with the procedures of paragraph (e) (1) or (2) of this 
section shall be used only for the ocean dumping of dredged material 
under permits issued by the U.S. Army Corps of Engineers.

[42 FR 2482, Jan. 11, 1977, as amended at 73 FR 74987, Dec. 10, 2008]



Sec. 228.5  General criteria for the selection of sites.

    (a) The dumping of materials into the ocean will be permitted only 
at sites or in areas selected to minimize the interference of disposal 
activities with other activities in the marine environment, particularly 
avoiding areas of existing fisheries or shellfisheries, and regions of 
heavy commercial or recreational navigation.
    (b) Locations and boundaries of disposal sites will be so chosen 
that temporary perturbations in water quality or other environmental 
conditions during initial mixing caused by disposal operations anywhere 
within the site

[[Page 219]]

can be expected to be reduced to normal ambient seawater levels or to 
undetectable contaminant concentrations or effects before reaching any 
beach, shoreline, marine sanctuary, or known geographically limited 
fishery or shellfishery.
    (c) [Reserved]
    (d) The sizes of ocean disposal sites will be limited in order to 
localize for identification and control any immediate adverse impacts 
and permit the implementation of effective monitoring and surveilance 
programs to prevent adverse long-range impacts. The size, configuration, 
and location of any disposal site will be determined as a part of the 
disposal site evaluation or designation study.
    (e) EPA will, wherever feasible, designate ocean dumping sites 
beyond the edge of the continental shelf and other such sites that have 
been historically used.

[42 FR 2482, Jan. 11, 1977, as amended at 73 FR 74987, Dec. 10, 2008]



Sec. 228.6  Specific criteria for site selection.

    (a) In the selection of disposal sites, in addition to other 
necessary or appropriate factors determined by the Administrator, the 
following factors will be considered:
    (1) Geographical position, depth of water, bottom topography and 
distance from coast;
    (2) Location in relation to breeding, spawning, nursery, feeding, or 
passage areas of living resources in adult or juvenile phases;
    (3) Location in relation to beaches and other amenity areas;
    (4) Types and quantities of wastes proposed to be disposed of, and 
proposed methods of release, including methods of packing the waste, if 
any;
    (5) Feasibility of surveillance and monitoring;
    (6) Dispersal, horizontal transport and vertical mixing 
characteristics of the area, including prevailing current direction and 
velocity, if any;
    (7) Existence and effects of current and previous discharges and 
dump ing in the area (including cumulative effects);
    (8) Interference with shipping, fishing, recreation, mineral 
extraction, desalination, fish and shellfish culture, areas of special 
scientific importance and other legitimate uses of the ocean;
    (9) The existing water quality and ecology of the site as determined 
by available data or by trend assessment or baseline surveys;
    (10) Potentiality for the development or recruitment of nuisance 
species in the disposal site;
    (11) Existence at or in close proximity to the site of any 
significant natural or cultural features of historical importance.
    (b) The results of a disposal site evaluation and/or designation 
study based on the criteria stated in paragraphs (b)(1) through (11) of 
this section will be presented in support of the site designation 
promulgation as an environmental assessment of the impact of the use of 
the site for disposal, and will be used in the preparation of an 
environmental impact statement for each site where such a statement is 
required by EPA policy. By publication of a notice in accordance with 
this part 228, an environmental impact statement, in draft form, will be 
made available for public comment not later than the time of publication 
of the site designation as proposed rulemaking, and a final EIS will be 
made available at the time of final rulemaking.



Sec. 228.7  Regulation of disposal site use.

    Where necessary, disposal site use will be regulated by setting 
limitations on times of dumping and rates of discharge, and establishing 
a disposal site monitoring program.



Sec. 228.8  Limitations on times and rates of disposal.

    Limitations as to time for and rates of dumping may be stated as 
part of the promulgation of site designation. The times and the 
quantities of permitted material disposal will be regulated by the EPA 
management authority so that the limits for the site as specified in the 
site designation are not exceeded. This will be accomplished by the 
denial of permits for the disposal of some materials, by the imposition 
of appropriate conditions on other permits and, if necessary, the 
designation of new disposal sites under the procedures of Sec. 228.4. 
In no case may the

[[Page 220]]

total volume of material disposed of at any site under special permits 
cause the concentration of the total materials or any constituent of any 
of the materials being disposed of at the site to exceed limits 
specified in the site designation.

[73 FR 74987, Dec. 10, 2008]



Sec. 228.9  Disposal site monitoring.

    (a) The monitoring program, if deemed necessary by the Regional 
Administrator or the District Engineer, as appropriate, may include 
baseline or trend assessment surveys by EPA, NOAA, other Federal 
agencies, or contractors, special studies by permittees, and the 
analysis and interpretation of data from remote or automatic sampling 
and/or sensing devices. The primary purpose of the monitoring program is 
to evaluate the impact of disposal on the marine environment by 
referencing the monitoring results to a set of baseline conditions. When 
disposal sites are being used on a continuing basis, such programs may 
consist of the following components:
    (1) Trend assessment surveys conducted at intervals frequent enough 
to assess the extent and trends of environmental impact. Until survey 
data or other information are adequate to show that changes in frequency 
or scope are necessary or desirable, trend assessment and baseline 
surveys should generally conform to the applicable requirements of Sec. 
228.13. These sur veys shall be the responsibility of the Federal 
government.
    (2) Special studies conducted by the permittee to identify immediate 
and short-term impacts of disposal operations.
    (b) These surveys may be supplemented, where feasible and useful, by 
data collected from the use of automatic sampling buoys, satellites or 
in situ platforms, and from experimental programs.
    (c) EPA will require the full participation of permittees, and 
encourage the full participation of other Federal and State and local 
agencies in the development and implementation of disposal site 
monitoring programs. The monitoring and research programs presently 
supported by permittees may be incorporated into the overall monitoring 
program insofar as feasible.



Sec. 228.10  Evaluating disposal impact.

    (a) Impact of the disposal at each site designated under section 102 
of the Act will be evaluated periodically and a report will be submitted 
as appropriate as part of the Annual Report to Congress. Such reports 
will be prepared by or under the direction of the EPA management 
authority for a specific site and will be based on an evaluation of all 
data available from baseline and trend assessment surveys, monitoring 
surveys, and other data pertinent to conditions at and near a site.
    (b) The following types of effects, in addition to other necessary 
or appropriate considerations, will be considered in determining to what 
extent the marine environment has been impacted by materials disposed of 
at an ocean disposal site:
    (1) Movement of materials into estuaries or marine sanctuaries, or 
onto oceanfront beaches, or shorelines;
    (2) Movement of materials toward productive fishery or shellfishery 
areas;
    (3) Absence from the disposal site of pollution-sensitive biota 
characteristic of the general area;
    (4) Progressive, non-seasonal, changes in water quality or sediment 
composition at the disposal site, when these changes are attributable to 
materials disposed of at the site;
    (5) Progressive, non-seasonal, changes in composition or numbers of 
pelagic, demersal, or benthic biota at or near the disposal site, when 
these changes can be attributed to the effects of materials disposed of 
at the site;
    (6) Accumulation of material constituents (including without 
limitation, human pathogens) in marine biota at or near the site.
    (c) The determination of the overall severity of disposal at the 
site on the marine environment, including without limitation, the 
disposal site and adjacent areas, will be based on the evaluation of the 
entire body of pertinent data using appropriate methods of data analysis 
for the quantity and type of data available. Impacts will be categorized 
according to the overall condition of the environment of the disposal

[[Page 221]]

site and adjacent areas based on the determination by the EPA management 
authority assessing the nature and extent of the effects identified in 
paragraph (b) of this section in addition to other necessary or 
appropriate considerations. The following categories shall be used:
    (1) Impact Category I: The effects of activities at the disposal 
site shall be categorized in Impact Category I when one or more of the 
following conditions is present and can reasonably be attributed to 
ocean dumping activities;
    (i) There is identifiable progressive movement or accumulation, in 
detectable concentrations above normal ambient values, of any waste or 
waste constituent from the disposal site within 12 nautical miles of any 
shoreline, marine sanctuary designated under title III of the Act, or 
critical area designated under section 102(c) of the Act; or
    (ii) The biota, sediments, or water column of the disposal site, or 
of any area outside the disposal site where any waste or waste 
constituent from the disposal site is present in detectable 
concentrations above normal ambient values, are adversely affected by 
the toxicity of such waste or waste constituent to the extent that there 
are statistically significant decreases in the populations of valuable 
commercial or recreational species, or of specific species of biota 
essential to the propagation of such species, within the disposal site 
and such other area as compared to populations of the same organisms in 
comparable locations outside such site and area; or
    (iii) Solid waste material disposed of at the site has accumulated 
at the site or in areas adjacent to it, to such an extent that major 
uses of the site or of adjacent areas are significantly impaired and the 
Federal or State agency responsible for regulating such uses certifies 
that such significant impairment has occurred and states in its 
certificate the basis for its determination of such impairment; or
    (iv) There are adverse effects on the taste or odor of valuable 
commercial or recreational species as a result of disposal activities; 
or
    (v) When any toxic waste, toxic waste constituent, or toxic 
byproduct of waste interaction, is consistently identified in toxic 
concentrations above normal ambient values outside the disposal site 
more than 4 hours after disposal.
    (2) Impact Category II: The effects of activities at the disposal 
site which are not categorized in Impact Category I shall be categorized 
in Impact Category II.



Sec. 228.11  Modification in disposal site use.

    (a) Modifications in disposal site use which involve the withdrawal 
of designated disposal sites from use or permanent changes in the total 
specified quantities or types of wastes permitted to be discharged to a 
specific disposal site will be made through promulgation of an amendment 
to the disposal site designation set forth in this part 228 and will be 
based on the results of the analyses of impact described in Sec. 228.10 
or upon changed circumstances concerning use of the site.
    (b) Modifications in disposal site use promulgated pursuant to 
paragraph (a) of this section shall not automatically modify conditions 
of any outstanding permit issued pursuant to this subchapter H, and 
provided further that unless the EPA management authority for such site 
modifies, revokes or suspends such permit or any of the terms or 
conditions of such permit in accordance with the provisions of Sec. 
232.2 based on the results of impact analyses as described in Sec. 
228.10 or upon changed circumstances concerning use of the site, such 
permit will remain in force until its expiration date.
    (c) When the EPA management authority determines that activities at 
a disposal site have placed the site in Impact Category I, the 
Administrator or the Regional Administrator, as the case may be, shall 
place such limitations on the use of the site as are necessary to reduce 
the impacts to acceptable levels.
    (d) The determination of the Administrator as to whether to 
terminate or limit use of a disposal site will be based on the impact of 
disposal at the site itself and on the Criteria.

[42 FR 2482, Jan. 11, 1977; 43 FR 1071, Jan. 6, 1978]

[[Page 222]]



Sec. 228.12  [Reserved]



Sec. 228.13  Guidelines for ocean disposal site baseline or trend
assessment surveys under section 102 of the Act.

    The purpose of a baseline or trend assessment survey is to determine 
the physical, chemical, geological, and biological structure of a 
proposed or existing disposal site at the time of the survey. A baseline 
or trend assessment survey is to be regarded as a comprehensive synoptic 
and representative picture of existing conditions; each such survey is 
to be planned as part of a continual monitoring program through which 
changes in conditions at a disposal site can be documented and assessed. 
Surveys will be planned in coordination with the ongoing programs of 
NOAA and other Federal, State, local, or private agencies with missions 
in the marine environment. The field survey data collection phase of a 
disposal site evaluation or designation study shall be planned and 
conducted to obtain a body of information both representative of the 
site at the time of study and obtained by techniques reproducible in 
precision and accuracy in future studies. A full plan of study which 
will provide a record of sampling, analytical, and data reduction 
procedures must be developed, documented and approved by the EPA 
management authority. Plans for all surveys which will produce 
information to be used in the preparation of environmental impact 
statements will be approved by the Administrator or his designee. This 
plan of study also shall be incorporated as an appendix into a technical 
report on the study, together with notations describing deviations from 
the plan required in actual operations. Relative emphasis on individual 
aspects of the environment at each site will depend on the type of 
wastes disposed of at the site and the manner in which such wastes are 
likely to affect the local environment, but no major feature of the 
disposal site may be neglected. The observations made and the data 
obtained are to be based on the information necessary to evaluate the 
site for ocean dumping. The parameters measured will be those 
indicative, either directly or indirectly, of the immediate and long-
term impact of pollutants on the environment at the disposal site and 
adjacent land or water areas. An initial disposal site evaluation or 
designation study should provide an immediate baseline appraisal of a 
particular site, but it should also be regarded as the first of a series 
of studies to be continued as long as the site is used for waste 
disposal.
    (a) Timing. Baseline or trend assessment surveys will be conducted 
with due regard for climatic and seasonal impact on stratification and 
other conditions in the upper layers of the water column. Where a choice 
of season is feasible, trend assessment surveys should be made during 
those months when pollutant accumulation within disposal sites is likely 
to be most severe, or when pollutant impact within disposal sites is 
likely to be most noticeable.
    (1) Where disposal sites are near large riverine inflows to the 
ocean, surveys will be done with due regard for the seasonal variation 
in river flow. In some cases several surveys at various river flows may 
be necessary before a site can be approved.
    (2) When initial surveys show that seasonal variation is not 
significant and surveys at greater than seasonable intervals are 
adequate for characterizing a site, resurveys shall be carried out in 
climatic conditions as similar to those of the original surveys as 
possible, particularly in depths less than 200 meters.
    (b) Duration. The actual duration of a field survey will depend upon 
the size and depth of the site, weather conditions during the survey, 
and the types of data to be collected. For example, for a survey of an 
area of 100 square miles on the continental shelf, including an average 
dump site and the region contiguous to it, an on-site operation would be 
scheduled for completion within one week of weather suitable for on-site 
operations. More on-site operating time may be scheduled for larger or 
highly complex sites.
    (c) Numbers and locations of sampling stations. The numbers and 
locations of sampling stations will depend in part on the local 
bathymetry with minimum numbers of stations per site

[[Page 223]]

fixed as specified in the following sections. Where the bottom is smooth 
or evenly sloping, stations for water column measurements and benthic 
sampling and collections, other than trawls, shall be spaced throughout 
the survey area in a manner planned to provide maximum coverage of both 
the disposal site and contiguous control areas, considering known water 
movement characteristics. Where there are major irregularities in the 
bottom topography, such as canyons or gullies, or in the nature of the 
bottom, sampling stations for sediments and benthic communities shall be 
spaced to provide representative sampling of the major different 
features.

Sampling shall be done within the dump site itself and in the contiguous 
area. Sufficient control stations outside a disposal site shall be 
occupied to characterize the control area environment at least as well 
as the disposal site itself. Where there are known persistent currents, 
sampling in contiguous areas shall include at least two stations 
downcurrent of the dump site, and at least two stations upcurrent of the 
site.
    (d) Measurements in the water column at and near the dump site--(1) 
Water quality parameters measured. These shall include the major 
indicators of water quality, particularly those likely to be affected by 
the waste proposed to be dumped. Specifically included at all stations 
are measurements of temperature, dissolved oxygen, salinity, suspended 
solids, turbidity, total organic carbon, pH, inorganic nutrients, and 
chlorophyll a.
    (i) At one station near the center of the disposal site, samples of 
the water column shall be taken for the analysis of the following 
parameters: Mercury, cadmium, copper, chromium, zinc, lead, arsenic, 
selenium, vanadium, beryllium, nickel, pesticides, petroleum 
hydrocarbons, and persistent organoha- logens. These samples shall be 
preserved for subsequent analysis by or under the direct supervision of 
EPA laboratories in accordance with the approved plan of study.
    (ii) These parameters are the basic requirements for all sites. For 
the evaluation of any specific disposal site additional measurements may 
be required, depending on the present or intended use of the site. 
Additional parameters may be selected based on the materials likely to 
be in wastes dumped at the site, and on parameters likely to be affected 
by constituents of such wastes. Analysis for other constituents 
characteristic of wastes discharged to a particular disposal site, or of 
the impact of such wastes on water quality, will be included in 
accordance with the approved plan of study.
    (2) Water quality sampling requirements. The number of samples 
collected from the water column should be suf ficient to identify 
representative changes throughout the water column such as to avoid 
short-term impact due to disposal activities. The following key 
locations should be considered in selecting water column depths for 
sampling:
    (i) Surface, below interference from surface waves;
    (ii) Middle of the surface layer;
    (iii) Bottom of the surface layer;
    (iv) Middle of the thermocline or halocline, or both if present;
    (v) Near the top of the stable layer beneath a thermocline or 
halocline;
    (vi) Near the middle of a stable layer;
    (vii) As near the bottom as feasible;
    (viii) Near the center of any zone showing pronounced biological 
activity or lack thereof.

In very shallow waters where only a few of these would be pertinent, as 
a minimum, surface, mid-depth and bottom samples shall be taken, with 
samples at additional depths being added as indicated by local 
conditions. At disposal sites far enough away from the influence of 
major river inflows, ocean or coastal currents, or other features which 
might cause local perturbations in water chemistry, a minimum of 5 water 
chemistry stations should be occupied within the boundaries of a site. 
Additional stations should be added when the area to be covered in the 
survey is more than 20 square miles or when local perturbations in water 
chemistry may be expected because of the presence of one of the features 
mentioned above. In zones where such impacts are likely, stations shall 
be distributed so that at least 3 stations are occupied in the 
transition from one stable regime to another. Each water

[[Page 224]]

column chemistry station shall be replicated a minimum of 2 times during 
a survey except in waters over 200 meters deep.
    (3) Water column biota. Sampling stations for the biota in the water 
column shall be as near as feasible to stations used for water quality; 
in addition at least two night-time stations in the disposal site and 
contiguous area are required. At each station vertical or oblique tows 
with appropriately-meshed nets shall be used to assess the 
microzooplankton, the nekton, and the macrozooplankton, Towing times and 
distances shall be sufficient to obtain representative samples of 
organisms near water quality stations. Organisms shall be sorted and 
identified to taxonomic levels necessary to identify dominant organisms, 
sensitive or indicator organisms, and organism diversity. Tissue samples 
of representative species shall be analyzed for pesticides, persistent 
organohalogens, and heavy metals. Discrete water samples shall also be 
used to quantitatively assess the phytoplankton at each station.

These requirements are the minimum necessary in all cases. Where there 
are discontinuities present, such as thermoclines, haloclines, 
convergences, or upwelling, additional tows shall be made in each water 
mass as appropriate.
    (e) Measurements of the benthic region--(1) Bottom sampling. Samples 
of the bottom shall be taken for both sediment composition and 
structure, and to determine the nature and numbers of benthic biota.
    (i) At each station sampling may consist of core samples, grab 
samples, dredge samples, trawls, and bottom photography or television, 
where available and feasible, depending on the nature of the bottom and 
the type of disposal site. Each type of sampling shall be replicated 
sufficiently to obtain a representative set of samples. The minimum 
numbers of replicates of successful samples at each continental shelf 
station for each type of device mentioned above are as follows:

Cores.....................................  3.
Grabs.....................................  5.
Dredge....................................  3.
Trawl.....................................  20-min. tow.
 


Lesser numbers of replicates may be allowed in water deeper than 200 
meters, at those sites where pollution impacts on the bottom are 
unlikely in the judgment of the EPA management authority.
    (ii) Selection of bottom stations will be based to a large extent on 
the bottom topography and hydrography as determined by the bathymetric 
survey. On the continental shelf, where the bottom has no significant 
discontinuities, a bottom station density of at least three times the 
water column stations is recommended, depending on the type of site 
being evaluated. Where there are significant differences in bottom 
topography, additional stations shall be occupied near the discontinuity 
and on each side of it. Beyond the continental shelf, lesser densities 
may be used.
    (2) Bathymetric survey. Sufficient tracklines shall be run to 
develop complete bottom coverage of bathymetry with reasonable assurance 
of accurate coverage of bottom topography, with trackline direction and 
spacing as close as available control allows. The site itself is to be 
developed at the greatest density possible, with data to be collected to 
a suitable distance about the site as is required to identify major 
changes in bathymetry which might affect the site. Specifications for 
each bathymetric survey will vary, depending on control, bottom 
complexity, depths, equipment, and map scale required. In most cases, a 
bathymetric map at a scale of 1:25,000 to 1:10,000 will be required, 
with a minimum of 1-5 meter contour interval except in very flat areas. 
When the foregoing bathymetric detail is available from recent surveys 
of the disposal site, bathymetry during a baseline or trend assessment 
survey may be limited to sonar profiles of bathymetry on transects 
between sampling stations.
    (3) Nature of bottom. The size distribution of sediments, mineral 
character and chemical quality of the bottom will be determined to a 
depth appropriate for the type of bottom. The following parameters will 
be measured at all stations: Particle size distribution, major mineral 
constituents, texture, settling rate, and organic carbon.

[[Page 225]]

    (i) At several stations near the center of the disposal site, 
samples of sediments shall be taken for the analysis of the following 
parameters: Mercury, cadmium, copper, chromium, zinc, lead, arsenic, 
selenium, vanadium, beryllium, nickel, pesticides, persistent 
organohalogens, and petroleum hydrocarbons. These samples shall be 
preserved for subsequent analysis by or under the direct supervision of 
EPA laboratories in accordance with the approved plan of study.
    (ii) These parameters are the basic requirements for all sites. For 
the evaluation of any specific disposal site additional measurements may 
be required, depending on the present or intended use of the site. 
Additional parameters may be selected based on the materials likely to 
be in wastes dumped at the site, and on parameters likely to be affected 
by constituents of such wastes. Such additional parameters will be 
selected by the EPA management authority.
    (4) Benthic biota. This shall consist of a quantitative and 
qualitative evaluation of benthic communities including macroinfauna and 
macroepifauna, meiobenthos, and microbenthos, and should include an 
appraisal, based on existing information, of the sensitivity of 
indigenous species to the waste proposed to be discharged. Organisms, 
shall be sorted, and identified to taxonomic levels necessary to 
identify dominant organisms, sensitive or indicator organisms, and 
organism diversity. Tissue samples of the following types of organisms 
shall be analyzed for persistent organohalogens, pesticides, and heavy 
metals:
    (i) A predominant species of demersal fish;
    (ii) The most abundant macro in faunal species; and
    (iii) A dominant epifaunal species, with particular preference for a 
species of economic importance.
    (f) Other measurements--(1) Hydrodynamic features. The direction and 
speed of water movement shall be characterized at levels appropriate for 
the site and type of waste to be dumped. Where depths and climatic 
conditions are great enough for a thermocline or halocline to exist, the 
relationship of water movement to such a feature shall be characterized.
    (i) Current measurements. When current meters are used as the 
primary source of hydrodynamic data, at least 4 current meter stations 
with at least 3 meters at depths appropriate for the observed or 
expected discontinuities in the water column should be operated for as 
long as possible during the survey. Where feasible, current meters 
should be deployed at the initiation of the survey and recovered after 
its completion. Stations should be at least a mile apart, and should be 
placed along the long axis of the dumping site. For dumping sites more 
than 10 miles along the long axis, one current meter station every 5 
miles should be operated. Where there are discontinuities in surface 
layers, e.g., due to land runoff, stations should be operated in each 
water mass.
    (ii) Water mass movement. Acceptable methods include: dye, drogues, 
surface drifters, side scan sonar, bottom drifters, and bottom 
photography or television. When such techniques are the primary source 
of hydrodynamic data, coverage should be such that all significant 
hydrodynamic features likely to affect waste movement are measured.
    (2) Sea state. Observations of sea state and of standard 
meteorological parameters shall be made at 8-hour intervals.
    (3) Surface phenomena. Observations shall be made of oil slicks, 
floating materials, and other visible evidence of pollution; and, where 
possible, collections of floating materials shall be made.
    (g) Survey procedures and techniques. Techniques and procedures used 
for sampling and analysis shall represent the state-of-the-art in 
oceanographic survey and analytical practice. Survey plans shall specify 
the methods to be used and will be subject to approval by EPA.
    (h) Quality assurance. The EPA management authority may require that 
certain samples be submitted on a routine basis to EPA laboratories for 
analysis as well as being analyzed by the surveyor, and that EPA 
personnel participate in some field surveys.

[[Page 226]]



Sec. 228.14  [Reserved]



Sec. 228.15  Dumping sites designated on a final basis.

    (a)(1) The sites identified in this section are approved for dumping 
the indicated materials. Designation of these sites was based on 
environmental studies conducted in accordance with the provisions of 
this part 228, and the sites listed in this section have been found to 
meet the site designation criteria of Sec. Sec. 228.5 and 228.6.
    (2) Unless otherwise specifically noted, site management authority 
for each site set forth in this section is delegated to the EPA Regional 
office under which the site entry is listed.
    (3) Unless otherwise specifically noted, all ocean dumping site 
coordinates are based upon the North American Datum of 1927.
    (b) Region I Final Dredged Material Sites.
    (1) Portland, Maine, Dredged Material Disposal Site.
    (i) Location: 43[deg]33[min]36[sec]N., 70[deg]02[min]42[sec]W.; 
43[deg]33[min]36[sec]N., 70[deg]01[min]18[sec]W.; 
43[deg]34[min]36[sec]N., 70[deg]02[min]42[sec]W.; 
43[deg]34[min]36[sec]N., 70[deg]01[min]18[sec]W.
    (ii) Size: One square nautical mile.
    (iii) Depth: 50 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material.
    (2) Massachusetts Bay Disposal Site.
    (i) Location: Center coordinates (NAD 1983) 42[deg]25.1[min] north 
latitude, 70[deg]35.0[min] west latitude.
    (ii) Size: 2 nautical mile diameter.
    (iii) Depth: Average 90 meters.
    (iv) Exclusive Use: Dredged material.
    (v) Period of Use: Continuing.
    (vi) Restriction: Disposal shall be limited to dredged material 
which meets the requirements of the MPRSA and its accompanying 
regulations. Disposal-and-capping is prohibited at the MBDS until its 
efficacy can be effectively demonstrated.
    (3) Rhode Island Sound Disposal Site (RISDS).
    (i) Location: Corner Coordinates (NAD 1983): 41[deg]14[min]21[sec] 
N, 71[deg]23[min]29[sec] W; 41[deg]14[min]21[sec] N, 
71[deg]22[min]09[sec] W; 41[deg]13[min]21[sec] N, 71[deg]23[min]29[sec] 
W; 41[deg]13[min]21[sec] N, 71[deg]22[min]09[sec] W.
    (ii) Size: One square nautical mile.
    (iii) Depth: Ranges from 115 to 128 feet (35 to 39 meters).
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material. 
Disposal shall comply with conditions set forth in the most recent 
approved Site Management and Monitoring Plan.
    (4) Central Long Island Sound Dredged Material Disposal Site (CLIS).
    (i) Location: Corner Coordinates (NAD 1983) 41[deg]9.5[min] N., 
72[deg]54.4[min] W.; 41[deg]9.5[min] N., 72[deg]51.5[min] W.; 
41[deg]08.4[min] N., 72[deg]54.4[min] W.; 41[deg]08.4[min] N., 
72[deg]51.5[min] W.
    (ii) Size: A 1.1 by 2.2 nautical mile rectangular area, about 2.42 
square nautical miles in size.
    (iii) Depth: Ranges from 56 to 77 feet (17 to 23.5 meters).
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use, except as provided in paragraph 
(b)(4)(vi) of this section.
    (vi) Restrictions: The designation in this paragraph (b)(4) sets 
forth conditions for the use of Central Long Island Sound (CLIS) and 
Western Long Island Sound (WLIS) Dredged Material Disposal Sites. These 
conditions apply to all disposal subject to the MPRSA, namely all 
federal projects and non-federal projects greater than 25,000 cubic 
yards. All references to ``permittees'' shall be deemed to include the 
Army Corps of Engineers (USACE) when it is authorizing its own dredged 
material disposal from a USACE dredging project. The conditions for this 
designation are as follows:
    (A) Disposal shall be limited to dredged material from Long Island 
Sound and vicinity.
    (B) Disposal shall comply with conditions set forth in the most 
recent approved Site Management and Monitoring Plan.
    (C) Except as provided in paragraphs (b)(4)(vi)(D) and (E) of this 
section, the disposal of dredged material at the CLIS and WLIS sites 
pursuant to this designation shall not be allowed beginning eight (8) 
years after July 5, 2005 unless a regional dredged material management 
plan (DMMP) for Long Island Sound has been completed by the North 
Atlantic Division of the USACE, in consultation with the State of New 
York, State of Connecticut and EPA,

[[Page 227]]

with a goal of reducing or eliminating the disposal of dredged material 
in Long Island Sound, and the EPA thereafter amends this site 
designation to incorporate procedures and standards that are consistent 
with those recommended in the DMMP. \1\ Completion of the DMMP means 
finishing the items listed in the work plan (except for any ongoing 
long-term studies), including the identification of alternatives to 
open-water disposal, and the development of procedures and standards for 
the use of practicable alternatives to open-water disposal. If the 
completion of the DMMP does not occur within eight years of July 5, 2005 
(plus any extensions under paragraphs (b)(4)(vi)(D) and (E) of this 
section), use of the sites shall be prohibited. However, if the DMMP is 
thereafter completed within one year, disposal of dredged material at 
the sites may resume.
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    \1\ If the EPA has acted in good faith to adopt substantially all 
procedures and standards for the use of the sites and the use of 
practicable alternatives to open-water disposal recommended in the DMMP, 
termination of the use of the sites based on the EPA not adopting all 
procedures and standards shall not occur unless a party first files a 
petition with the EPA pursuant to item 7 setting forth in detail each 
procedure or standard that the party believes the EPA must adopt in 
order to be consistent with the DMMP, and the EPA has an opportunity to 
act on the petition. Termination of the use of the sites shall not occur 
if in response to a petition the EPA determines that it has adopted 
substantially all procedures and standards for the use of the sites and 
the use of practicable alternatives to open-water disposal recommended 
in the DMMP, unless and until otherwise directed by a court. Termination 
of the use of the sites shall not occur based on not adopting a DMMP 
provision if the DMMP provision is not consistent with applicable law. 
Termination of the use of the sites shall not occur based on the EPA not 
meeting the 60 and 120 day rulemaking deadlines set forth in item 7, but 
use of the sites shall be suspended if the EPA misses either deadline, 
until the EPA issues a final rule. Termination of the use of the sites 
shall not occur based on the EPA adopting procedures and standards which 
are stricter than the recommendations of the DMMP.
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    (D) The EPA may extend the eight-year deadline in paragraph 
(b)(4)(vi)(C) of this section for any reasonable period (on one or more 
occasions) if it obtains the written agreement of the USACE, the State 
of Connecticut (Department of Environmental Protection) and the State of 
New York (Department of State).
    (E) The EPA may extend the eight-year deadline in paragraph 
(b)(4)(vi)(C) of this section by up to one year (on one occasion only) 
if it determines in writing that the parties participating in the 
development of the DMMP have attempted in good faith to meet the 
deadline, but that the deadline has not been met due to factors beyond 
the parties' control (including funding). Such an extension may be in 
addition to any extension(s) granted under paragraph (b)(4)(vi)(D) of 
this section.
    (F) The EPA will conduct an annual review of progress in developing 
the DMMP. If the EPA finds that the DMMP is being unreasonably delayed 
by one or more parties, the EPA reserves the right to take the following 
actions as appropriate: (1) Suspend use of the sites even prior to the 
deadlines established in paragraphs (b)(4)(vi)(C) through (E) of this 
section through an amended rulemaking or (2) Exercise through rulemaking 
its statutory and regulatory authorities regarding designation of ocean 
disposal sites.
    (G) Upon completion of the DMMP, disposal of dredged material at the 
designated sites pursuant to the designation in this paragraph (b)(4) 
shall be allowed only from permittees that comply with procedures and 
standards consistent with the recommendations of the DMMP, and 
consistent with applicable law, for the use of the sites and for the use 
of practicable alternatives to open-water disposal, so as to reduce or 
eliminate the disposal of dredged material in Long Island Sound. Upon 
the completion of the DMMP, the EPA will within 60 days propose and 
within 120 days (subject to consideration of public comments) issue a 
legally binding amendment to the designation in this paragraph (b)(4) 
describing all such procedures and standards and specifying that they 
must be complied with as part of this designation. \2\ If any

[[Page 228]]

party (or the EPA on its own initiative) is not satisfied that the final 
DMMP recommends sufficient procedures and standards to reduce or 
eliminate disposal of dredged material in Long Island Sound to the 
greatest extent practicable, or if any party is not satisfied with the 
EPA's amendment adopting such procedures and standards, the party may 
petition the EPA to do a rulemaking to amend the designation to 
establish different or additional standards. The EPA will act on any 
such petition within 120 days.
---------------------------------------------------------------------------

    \2\ The EPA must preserve its discretion, in response to public 
comments, not to adopt such an amendment to this designation. The EPA 
understands that the State of New York has reserved its rights to revive 
its objection to this designation if the DMMP procedures and standards 
are not adopted.
---------------------------------------------------------------------------

    (H) Disposal not subject to the restrictions in paragraphs 
(b)(4)(vi)(C) through (G) or (b)(4)(vi)(I) of this section shall be 
permitted only for materials resulting from currently authorized or 
permitted dredging projects at Norwalk, Rye and New Rochelle. Such 
disposal must meet all applicable statutory and regulatory requirements. 
All phases of any of these project must be initiated within four (4) 
years from the date of the designation, or the project will become 
subject to paragraph (b)(4)(vi)(I) of this section.
    (I) Except for the projects covered by paragraph (b)(4)(vi)(H) of 
this section and until completion of the DMMP, disposal of dredged 
material at the designated sites pursuant to the designation in this 
paragraph (b)(4) shall be allowed only if, after full consideration of 
recommendations provided by an established Regional Dredging Team \3\ 
(RDT), the USACE finds (and the EPA does not object to such finding), 
based on a fully documented analysis, that for a given dredging project:
---------------------------------------------------------------------------

    \3\ A Regional Dredging Team (RDT) comprised of regulatory and 
coastal policy specialists from state and federal agencies will be 
formed.
---------------------------------------------------------------------------

    (1) There are no practicable alternatives (as defined in 40 CFR 
227.16(b)) to open-water disposal in Long Island Sound and that any 
available practicable alternative to open-water disposal will be fully 
utilized for the maximum volume of dredged material practicable;
    (2) Determinations relating to paragraph (b)(4)(vi)(I)(1) of this 
section will recognize that any alternative to open-water disposal may 
add additional costs. Disposal of dredged material at the designated 
sites pursuant to this paragraph (b)(4) shall not be allowed if a 
practicable alternative is available. Any project subject to this 
restriction must be permitted or authorized prior to the completion of 
the DMMP and completed within two years after the completion of the 
DMMP.
    (J) Disposal shall be limited to dredged sediments that comply with 
the Ocean Dumping Regulations.
    (K) Disposal of dredged material at the designated sites pursuant to 
the designation in this paragraph (b)(4) shall not be allowed for any 
materials subject to a waiver under 33 U.S.C. 1413(d) unless, for any 
project where a waiver is sought, the New England or New York District 
of the USACE provides notification, by certified mail at least thirty 
(30) days before making the waiver request, to the Governors of the 
states of Connecticut and New York and the North Atlantic Division of 
the USACE that it will be requesting a waiver.
    (L) Transportation of dredged material to the sites shall only be 
allowed when weather and sea conditions will not interfere with safe 
transportation and will not create risk of spillage, leak or other loss 
of dredged material in transit. No disposal trips shall be initiated 
when the National Weather Service has issued a gale warning for local 
waters during the time period necessary to complete dumping operations.
    (M) The parties participating in the DMMP will need to seek 
additional funding in order to develop the DMMP. Nothing in the 
designation in this paragraph (b)(4) or elsewhere guarantees that any 
agency will be able to obtain funding for the DMMP. This designation 
shall not be interpreted as or constitute a commitment that the United 
States will obligate or expend funds in contravention of the Anti-
Deficiency Act, 31 U.S.C. 1341. Rather, the sole remedy for any failure 
to meet the conditions specified in this paragraph (b)(4)(vi) shall be 
the restriction of the authority to dispose of dredged material, as 
provided in this paragraph (b)(4).

[[Page 229]]

    (N) Nothing in the designation in this paragraph (b)(4) or elsewhere 
precludes the EPA from exercising its statutory authority to designate 
other ocean disposal sites, not subject to the restrictions in paragraph 
(b)(4)(vi), or taking any subsequent action to modify the site 
designation in paragraph (b)(4), provided that the EPA makes any such 
designation or takes such subsequent action through a separate 
rulemaking in accordance with all applicable legal requirements. Nothing 
in this designation shall be interpreted to restrict the EPA's 
authorities under the MPRSA or the implementing regulations or to amend 
the implementing regulations.
    (5) Western Long Island Sound Dredged Material Disposal Site (WLIS).
    (i) Location: Corner Coordinates (NAD 1983) 41[deg]00.1[min] N., 
73[deg]29.8[min] W.; 41[deg]00.1[min] N., 73[deg]28.1[min] W.; 
40[deg]58.9[min] N., 73[deg]29.8[min] W.; 40[deg]58.9[min] N., 
73[deg]28.1[min] W.
    (ii) Size: A 1.2 by 1.3 nautical mile rectangular area, about 1.56 
square nautical miles in size.
    (iii) Depth: Ranges from 79 to 118 feet (24 to 36 meters).
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use except as provided in paragraph 
(b)(5)(vi) of this section.
    (vi) Restrictions: See 40 CFR 228.15(b)(4)(vi).
    (c) Region I Final Other Wastes Sites.
    (1) No final sites.
    (2) [Reserved]
    (d) Region II Final Dredged Material Sites.
    (1) Fire Island Inlet, Long Island, New York Dredged Material 
Disposal Site.
    (i) Location: 40[deg]36[min]49[sec]N., 73[deg]23[min]50[sec]W.; 
40[deg]37[min]12[sec]N., 73[deg]21[min]30[sec]W.; 
40[deg]36[min]41[sec]N., 73[deg]21[min]20[sec]W.; 
40[deg]36[min]10[sec]N., 73[deg]23[min]40[sec]W.
    (ii) Size: Approximately 1.09 square nautical miles.
    (iii) Depth: Ranges from 7 to 10 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Fire Island Inlet, Long Island, New York.
    (2) Jones Inlet, Long Island, New York Dredged Material Disposal 
Site.
    (i) Location: 40[deg]34[min]32[sec]N., 73[deg]39[min]14[sec]W.; 
40[deg]34[min]32[sec]N., 73[deg]37[min]06[sec]W.; 
40[deg]33[min]48[sec]N., 73[deg]37[min]06[sec]W.; 
40[deg]33[min]48[sec]N., 73[deg]39[min]14[sec]W.
    (ii) Size: Approximately 1.19 square nautical miles.
    (iii) Depth: Ranges from 7 to 10 meters.
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Jones Island Inlet, Long Island, New York.
    (3) East Rockaway Inlet, Long Island NY Dredged Material Disposal 
Site.
    (i) Location: 40[deg]34[min]36[sec]N., 73[deg]49[min]00[sec]W.; 
40[deg]35[min]06[sec]N., 73[deg]47[min]06[sec]W.; 
40[deg]34[min]10[sec]N., 73[deg]48[min]6[sec]W.; 
40[deg]34[min]12[sec]N., 73[deg]47[min]17[sec]W.
    (ii) Size: Approximately 0.81 square nautical miles.
    (iii) Depth: Ranges from 6 to 9 meters.
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from East Rockaway Inlet, Long Island, New York.
    (4) Rockaway Inlet, Long Island, New York Dredged Material Disposal 
Site.
    (i) Location: 40[deg]32[min]30[sec]N., 73[deg]55[min]00[sec]W.; 
40[deg]32[min]30[sec]N., 73[deg]54[min]00W[sec]; 
40[deg]32[min]00[sec]N., 73[deg]54[min]00[sec]W.; 
40[deg]32[min]00[sec]N., 73[deg]55[min]00[sec]W.
    (ii) Size: Approximately 0.38 square nautical miles.
    (iii) Depth: Ranges from 8 to 11 meters.
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Rockaway Inlet, Long Island, New York.
    (5) Shark River, New Jersey Dredged Material Disposal Site.
    (i) Location: 40[deg]12[min]48[sec]N., 73[deg]59[min]45[sec]W.; 
40[deg]12[min]44[sec]N., 73[deg]59[min]06[sec]W.; 
40[deg]11[min]36[sec]N., 73[deg]59[min]28[sec]W.; 
40[deg]11[min]42[sec]N., 74[deg]00[min]12[sec]W.
    (ii) Size: Approximately 0.6 square nautical miles.
    (iii) Depth: Approximately 12 meters.
    (iv) Primary use: Dredged material disposal.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Shark River Inlet, New Jersey.

[[Page 230]]

    (6) Historical Area Remediation Site (HARS) Designation/Mud Dump 
Site Termination.
    (i) Status of Former Mud Dump Site: The Mud Dump Site, designated as 
an Impact Category I site on May 4, 1984, is terminated.
    (ii) Location: (A) The HARS (which includes the 2.2 square nautical 
mile area of the former Mud Dump Site) is a 15.7 square nautical mile 
area located approximately 3.5 nautical miles east of Highlands, New 
Jersey and 7.7 nautical miles south of Rockaway, Long Island. The HARS 
consists of a Primary Remediation Area (PRA), a Buffer Zone, and a No 
Discharge Zone. The HARS is bounded by the following coordinates:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                Point                        Latitude  DMS                Longitude  DMS               Latitude  DDM                Longitude  DDM
--------------------------------------------------------------------------------------------------------------------------------------------------------
A...................................  40[deg] 25[min] 39[sec] N..  73[deg] 53[min] 55[sec] W..  40[deg] 25.65[min] N.......  73[deg] 53.92[min] W.
M...................................  40[deg] 25[min] 39[sec] N..  73[deg] 48[min] 58[sec] W..  40[deg] 25.65[min] N.......  73[deg] 48.97[sec] W.
P...................................  40[deg] 21[min] 19[sec] N..  73[deg] 48[min] 57[sec] W..  40[deg] 21.32[min] N.......  73[deg] 48.95[min] W.
R...................................  40[deg] 21[min] 19[sec] N..  73[deg] 52[min] 30[sec] W..  40[deg] 21.32[min] N.......  73[deg] 52.50[min] W.
S...................................  40[deg] 21[min] 52[sec] N..  73[deg] 53[min] 55[sec] W..  40[deg] 21.87[min] N.......  73[deg] 53.92[min] W.
V...................................  40[deg] 21[min] 52[sec] N..  73[deg] 52[min] 30[sec] W..  40[deg] 21.87[min] N.......  73[deg] 52.50[min] W.
--------------------------------------------------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds.
DDM = Degrees, Decimal Minutes.

    (B) The PRA, is a 9.0 square nautical mile area to be remediated 
with at least a 1 meter cap of the Material for Remediation. The PRA is 
bounded by the following coordinates:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                Point                        Latitude  DMS                Longitude  DMS               Latitude  DDM                Longitude  DDM
--------------------------------------------------------------------------------------------------------------------------------------------------------
B...................................  40[deg] 25[min] 23[sec] N..  73[deg] 53[min] 34[sec] W..  40[deg] 25.38[min] N.......  73[deg] 53.57[min] W.
D...................................  40[deg] 25[min] 22[sec] N..  73[deg] 52[min] 08[sec] W..  40[deg] 25.37[min] N.......  73[deg] 52.13[min] W.
F...................................  40[deg] 23[min] 13[sec] N..  73[deg] 52[min] 09[sec] W..  40[deg] 23.22[min] N.......  73[deg] 52.15[sec] W.
G...................................  40[deg] 23[min] 13[sec] N..  73[deg] 51[min] 28[sec] W..  40[deg] 23.22[min] N.......  73[deg] 51.47[min] W.
H...................................  40[deg] 22[min] 41[sec] N..  73[deg] 51[min] 28[sec] W..  40[deg] 22.68[min] N.......  73[deg] 51.47[min] W.
I...................................  40[deg] 22[min] 41[sec] N..  73[deg] 50[min] 43[sec] W..  40[deg] 22.68[min] N.......  73[deg] 50.72[min] W.
L...................................  40[deg] 25[min] 22[sec] N..  73[deg] 50[min] 44[sec] W..  40[deg] 25.37[min] N.......  73[deg] 50.73[min] W.
N...................................  40[deg] 25[min] 22[sec] N..  73[deg] 49[min] 19[sec] W..  40[deg] 25.37[min] N.......  73[deg] 49.32[min] W.
O...................................  40[deg] 21[min] 35[sec] N..  73[deg] 49[min] 19[sec] W..  40[deg] 21.58[min] N.......  73[deg] 49.32[min] W.
Q...................................  40[deg] 21[min] 36[sec] N..  73[deg] 52[min] 08[sec] W..  40[deg] 21.60[min] N.......  73[deg] 52.13[min] W.
T...................................  40[deg] 22[min] 08[sec] N..  73[deg] 52[min] 08[sec] W..  40[deg] 22.13[min] N.......  73[deg] 52.13[min] W.
U...................................  40[deg] 22[min] 08[sec] N..  73[deg] 53[min] 34[sec] W..  40[deg] 22.13[min] N.......  73[deg] 53.57[min] W.
--------------------------------------------------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds.
DDM = Degrees, Decimal Minutes.

    (iii) Size: 15.7 square nautical miles.
    (iv) Depth: Ranges from 12 to 42 meters.
    (v) Restrictions on Use:
    (A) The site will be managed so as to reduce impacts within the PRA 
to acceptable levels in accordance with 40 CFR 228.11(c). Use of the 
site will be restricted to dredged material suitable for use as the 
Material for Remediation. This material shall be selected so as to 
ensure it will not cause significant undesirable effects including 
through bioaccumulation or unacceptable toxicity, in accordance with 40 
CFR 227.6.
    (B) Placement of Material for Remediation will be limited to the 
PRA. Placement of Material for Remediation within the PRA is not allowed 
in a 0.27 nautical mile radius around the following coordinates due to 
the presence of shipwrecks: 40[deg] 25.30[min] W, 73[deg] 52.80[min] N; 
40[deg] 25.27[min] W, 73[deg] 52.13[min] N; 40[deg] 25.07[min] W, 
73[deg] 50.05[min] N; 40[deg] 22.46[min] W, 73[deg] 53.27[min] N.
    (C) No placement of material may take place within the Buffer Zone, 
although this zone may receive material that incidentally spreads out of 
the PRA. The Buffer Zone is an approximately 5.7 square nautical mile 
area (0.27 nautical mile wide band around the PRA), which is bounded by 
the following coordinates:

[[Page 231]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                Point                         Latitude DMS                Longitude DMS                 Latitude DDM                Longitude DDM
--------------------------------------------------------------------------------------------------------------------------------------------------------
A...................................  40[deg]25[min]39[sec] N....  73[deg]53[min]55[sec] W....  40[deg]25.65[min] N........  73[deg]53.92[min] W.
B...................................  40[deg]25[min]23[sec] N....  73[deg]53[min]34[sec] W....  40[deg]25.38[min] N........  73[deg]53.57[min] W.
C...................................  40[deg]25[min]39[sec] N....  73[deg]51[min]48[sec] W....  40[deg]25.65[min] N........  73[deg]51.80[min] W.
D...................................  40[deg]25[min]22[sec] N....  73[deg]52[min]08[sec] W....  40[deg]25.37[min] N........  73[deg]52.13[min] W.
E...................................  40[deg]23[min]48[sec] N....  73[deg]51[min]48[sec] W....  40[deg]23.80[min] N........  73[deg]51.80[min] W.
F...................................  40[deg]23[min]13[sec] N....  73[deg]52[min]09[sec] W....  40[deg]23.22[min] N........  73[deg]52.15[min] W.
G...................................  40[deg]23[min]13[sec] N....  73[deg]51[min]28[sec] W....  40[deg]23.22[min] N........  73[deg]51.47[min] W.
H...................................  40[deg]22[min]41[sec] N....  73[deg]51[min]28[sec] W....  40[deg]22.68[min] N........  73[deg]51.47[min] W.
I...................................  40[deg]22[min]41[sec] N....  73[deg]50[min]43[sec] W....  40[deg]22.68[min] N........  73[deg]50.72[min] W.
J...................................  40[deg]23[min]48[sec] N....  73[deg]51[min]06[sec] W....  40[deg]23.80[min] N........  73[deg]51.10[min] W.
K...................................  40[deg]25[min]39[sec] N....  73[deg]51[min]06[sec] W....  40[deg]25.65[min] N........  73[deg]51.10[min] W.
L...................................  40[deg]25[min]22[sec] N....  73[deg]50[min]44[sec] W....  40[deg]25.37[min] N........  73[deg]50.73[min] W.
M...................................  40[deg]25[min]39[sec] N....  73[deg]48[min]58[sec] W....  40[deg]25.65[min] N........  73[deg]48.97[min] W.
N...................................  40[deg]25[min]22[sec] N....  73[deg]49[min]19[sec] W....  40[deg]25.37[min] N........  73[deg]49.32[min] W.
O...................................  40[deg]21[min]35[sec] N....  73[deg]49[min]19[sec] W....  40[deg]21.58[min] N........  73[deg]49.32[min] W.
P...................................  40[deg]21[min]19[sec] N....  73[deg]48[min]57[sec] W....  40[deg]21.32[min] N........  73[deg]48.95[min] W.
Q...................................  40[deg]21[min]36[sec] N....  73[deg]52[min]08[sec] W....  40[deg]21.60[min] N........  73[deg]52.13[min] W.
R...................................  40[deg]21[min]19[sec] N....  73[deg]52[min]30[sec] W....  40[deg]21.32[min] N........  73[deg]52.50[min] W.
S...................................  40[deg]21[min]52[sec] N....  73[deg]53[min]55[sec] W....  40[deg]21.87[min] N........  73[deg]53.92[min] W.
T...................................  40[deg]22[min]08[sec] N....  73[deg]52[min]08[sec] W....  40[deg]22.13[min] N........  73[deg]52.13[min] W.
U...................................  40[deg]22[min]08[sec] N....  73[deg]53[min]34[sec] W....  40[deg]22.13[min] N........  73[deg]53.57[min] W.
V...................................  40[deg]21[min]52[sec] N....  73[deg]52[min]30[sec] W....  40[deg]21.87[min] N........  73[deg]52.50[min] W.
--------------------------------------------------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds.
DDM = Degrees, Decimal Minutes.

    (D) No placement or incidental spread of the material is allowed 
within the No Discharge Zone, an approximately 1.0 square nautical mile 
area, bounded by the following coordinates:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                Point                         Latitude DMS                Longitude DMS                 Latitude DDM                Longitude DDM
--------------------------------------------------------------------------------------------------------------------------------------------------------
C...................................  40[deg]25[min]39[sec] N....  73[deg]51[min]48[sec] W....  40[deg]25.65[min] N........  73[deg]51.80[min] W.
E...................................  40[deg]23[min]48[sec] N....  73[deg]51[min]48[sec] W....  40[deg]23.80[min] N........  73[deg]51.80[min] W.
J...................................  40[deg]23[min]48[sec] N....  73[deg]51[min]06[sec] W....  40[deg]23.80[min] N........  73[deg]51.10[min] W.
K...................................  40[deg]25[min]39[sec] N....  73[deg]51[min]06[sec] W....  40[deg]25.65[min] N........  73[deg]51.10[min] W.
--------------------------------------------------------------------------------------------------------------------------------------------------------
DMS = Degrees, Minutes, Seconds.
DDM = Degrees, Decimal Minutes.

    (E) HARS-specific Polychlorinated Biphenyl (PCB) Tissue Criterion: 
Total PCB bioaccumulation worm test results for dredged material 
approved for placement at the HARS as Material for Remediation shall not 
exceed the HARS-specific PCB tissue criterion of 113 ppb. This HARS-
specific PCB tissue criterion will be applied to the arithmetic mean 
concentration reported for the analyses of the worm tissue replicates 
exposed to the tested sediments, without the use of statistical 
confidence limits.
    (vi) Period of Use: Continuing use until EPA determines that the PRA 
has been sufficiently capped with at least 1 meter of the Material for 
Remediation. At that time, EPA will undertake any necessary rulemaking 
to de-designate the HARS.
    (7) Manasquan, New Jersey Dredged Material Disposal Site.
    (i) Location: 40[deg]06[min]36[sec]N., 74[deg]01[min]34[sec]W.; 
40[deg]06[min]19[sec]N., 74[deg]01[min]39[sec]W.; 
40[deg]06[min]18[sec]N., 74[deg]01[min]53[sec]W.; 
40[deg]06[min]41[sec]N., 74[deg]01[min]51[sec]W.
    (ii) Size: Approximately 0.11 square nautical miles.
    (iii) Depth: Approximately 18 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Manasquan Inlet, New Jersey.
    (8) Absecon Inlet, NJ Dredged Material Disposal Site.
    (i) Location: 39[deg]20[min]39[sec]N., 74[deg]18[min]43[sec]W.; 
39[deg]20[min]30[sec]N., 74[deg]18[min]25[sec]W.; 
39[deg]20[min]03[sec]N., 74[deg]18[min]43[sec]W.; 
39[deg]20[min]12[sec]N., 74[deg]19[min]01[sec]W.
    (ii) Size: Approximately 0.28 square nautical miles.
    (iii) Depth: Approximately 17 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.

[[Page 232]]

    (vi) Restrictions: Disposal shall be limited to dredged material 
from Absecon Inlet, New Jersey.
    (9) Cold Spring Inlet, NJ Dredged Material Disposal Site.
    (i) Location: 38[deg]55[min]52[sec]N., 74[deg]53[min]04[sec]W.; 
38[deg]55[min]37[sec]N., 74[deg]52[min]55[sec]W.; 
38[deg]55[min]23[sec]N., 74[deg]53[min]27[sec]W.; 
38[deg]55[min]36[sec]N., 74[deg]53[min]36[sec]W.
    (ii) Size: Approximately 0.13 square nautical miles.
    (iii) Depth: Approximately 9 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Cold Spring Inlet, New Jersey.
    (10) San Juan Harbor, PR, Dredged Material Site.
    (i) Location: 18[deg]30[min]10[sec]N., 66[deg]09[min]31[sec]W.; 
18[deg]30[min]10[sec]N., 66[deg]08[min]29[sec]W.; 
18[deg]31[min]10[sec]N., 66[deg]08[min]29[sec]W.; 
18[deg]31[min]10[sec]N., 66[deg]09[min]31[sec]W.
    (ii) Size: 0.98 square nautical mile.
    (iii) Depth: Ranges from 200 to 400 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Port of San Juan, Puerto Rico, and coastal areas within 20 miles of 
said port entrance.
    (11) Arecibo Harbor, PR Dredged Material Disposal Site.
    (i) Location: 18[deg]31[min]00[sec] N., 66[deg]43[min]47[sec] W.; 
18[deg]31[min]00[sec] N., 66[deg]42[min] 45[sec] W.; 
18[deg]30[min]00[sec] N., 66[deg]42[min]45[sec]W.; 18[deg]30[min]00[sec] 
N., 66[deg]43[min]47[sec] W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 101 to 417 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Arecibo Harbor, PR.
    (12) Mayaguez Harbor, PR Dredged Material Disposal Site.
    (i) Location: 18[deg]15[min]30[sec] N., 67[deg]16[min]13[sec] W.; 
18[deg]15[min]30[sec] N., 67[deg]15[min]11[sec] W.; 
18[deg]14[min]30[sec] N., 67[deg]15[min]11[sec] W.; 
18[deg]14[min]30[sec] N., 67[deg]16[min]13[sec] W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 351 to 384 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Mayaguez Harbor, PR.
    (13) Ponce Harbor, PR Dredged Material Disposal Site.
    (i) Location: 17[deg]54[min]00[sec] N., 66[deg]37[min]43[sec] W.; 
17[deg]54[min]00[sec] N., 66[deg]36[min]41[sec] W.; 
17[deg]53[min]00[sec] N., 66[deg]36[min]41[sec] W.; 
17[deg]53[min]00[sec] N., 66[deg]37[min]43[sec] W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 329 to 457 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Ponce Harbor, PR.
    (14) Yabucoa Harbor, PR Dredged Material Disposal Site.
    (i) Location: 18[deg]03[min]42[sec] N., 65[deg]42[min]49[sec] W.; 
18[deg]03[min]42[sec] N., 65[deg]41[min]47[sec] W.; 
18[deg]02[min]42[sec] N., 65[deg]41[min]47[sec]W.; 18[deg]02[min]42[sec] 
N., 65[deg]42[min]49[sec] W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 549 to 914 meters.
    (iv) Primary Use: Dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from Yabucoa Harbor, PR.
    (e) Region II Final Other Wastes Sites.
    (1) No final sites.
    (2) [Reserved]
    (f) Region III Final Dredged Material Sites.
    (1) Dam Neck, Virginia, Dredged Material Disposal Site.
    (i) Location: 36[deg]51[min]24.1[sec] N., 75[deg]54[min]41.4[sec] 
W.; 36[deg]51[min]24.1[sec] N., 75[deg]53[min]02.9[sec] W.; 
36[deg]50[min]52.0[sec] N., 75[deg]52[min]49.0[sec]W.; 
36[deg]46[min]27.4[sec] N., 75[deg]51[min]39.2[sec] W.; 
36[deg]46[min]27.5[sec] N., 75[deg]54[min]19.0[sec] W.; 
36[deg]50[min]05.0[sec] N., 75[deg]54[min]19.0[sec] W.
    (ii) Size: 8 square nautical miles.
    (iii) Depth: Averages 11 meters.
    (iv) Primary Use: Dredged Material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the mouth of Chesapeake Bay.
    (2) Norfolk, VA, Dredged Material Disposal Site.
    (i) Location: Center point: Latitude--36[deg]59[min]00[sec] N., 
Longitude--75[deg]39[min]00[sec] W.
    (ii) Size: Circular with a radius of 7.4 kilometers (4 nautical 
miles).

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    (iii) Depth: Ranges from 13.1 to 26 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Site shall be limited to suitable dredged 
material which passed the criteria for ocean dumping.
    (g) Region III Final Other Wastes Sites.
    (1) No final sites.
    (2) [Reserved]
    (h) Region IV Final Dredged Material Sites.
    (1) Morehead City, NC Dredged Material Disposal Site.
    (i) Location: 34[deg]38[min]30[sec] N., 76[deg]45[min]0[sec] W.; 
34[deg]38[min]30[sec] N., 76[deg]41[min]42[sec] W.; 
34[deg]38[min]09[sec] N., 76[deg]41[min]0[sec] W.; 34[deg]36[min]0[sec] 
N., 76[deg]41[min]0[sec] W.; 34[deg]36[min]0[sec] N., 
76[deg]45[min]0[sec] W.
    (ii) Size: 8 square nautical miles.
    (iii) Depth: Average 12.0 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Morehead City Harbor, North Carolina area. All material disposed 
must satisfy the requirements of the ocean dumping regulations.
    (2) Wilmington, NC Dredged Material Disposal Site.
    (i) Location: 33[deg]49[min]30[sec] N., 78[deg]03[min]06[sec] W.; 
33[deg]48[min]18[sec] N., 78[deg]01[min]39[sec] W.; 
33[deg]47[min]19[sec] N., 78[deg]02[min]48[sec] W.; 
33[deg]48[min]30[sec] N., 78[deg]04[min]16[sec] W.
    (ii) Size: 2.3 square nautical miles.
    (iii) Depth: Averages 13 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to the dredged material 
from Wilmington Harbor area.
    (3) Georgetown Harbor; Georgetown, South Carolina: Ocean Dredged 
Material Disposal Site.
    (i) Location: 33[deg]11[min]18[sec] N., 79[deg]07[min]20[sec] W.; 
33[deg]11[min]18[sec] N., 79[deg]05[min]23[sec] W.; 
33[deg]10[min]38[sec] N., 79[deg]05[min]24[sec] W.; 
33[deg]10[min]38[sec] N., 79[deg]07[min]21[sec] W.
    (ii) Size: 1 square nautical mile.
    (iii) Depth: 6 to 11 meter range.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material from the greater Georgetown, South Carolina, area.
    (4) [Reserved]
    (5) Charleston, SC, Ocean Dredged Material Disposal Site.
    (i) Location: 32[deg]38[min]06[sec]N., 79[deg]41[min]57[sec]W.; 
32[deg]40[min]42[sec]N., 79[deg]47[min]30[sec]W.; 
32[deg]39[min]04[sec]N., 79[deg]49[min]21[sec]W.; 
32[deg]36[min]28[sec]N., 79[deg]43[min]48[sec]W.
    (ii) Size: 11.8 square nautical miles.
    (iii) Depth: Averages 11 meters.
    (iv) Primary use: Dredged material from the Charleston Harbor 
deepening project.
    (v) Period of Use: Continued use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Charleston Harbor area. All dredged materials must be placed within 
the box defined by the following four corner coordinates (NAD83): 
32.65663[deg] N, 79.75716[deg] W; 32.64257[deg] N, 79.72733[deg] W; 
32.61733[deg] N, 79.74381[deg] W; and 32.63142[deg] N, 79.77367[deg] W. 
Additionally, all disposals shall be in accordance with all provisions 
of disposal placement as specified by the Site Management Plan, which is 
periodically updated.
    (6) Savannah, GA Dredged Material Disposal Site.
    (i) Location: 31[deg]55[min]53[sec]N., 80[deg]44[min]20[sec]W.; 
31[deg]57[min]55[sec]N., 80[deg]46[min]48[sec]W.; 
31[deg]57[min]55[sec]N., 80[deg]44[min]20[sec]W.; 
31[deg]55[min]53[sec]N., 80[deg]46[min]48[sec]W.
    (ii) Size: 4.26 square nautical miles.
    (iii) Depth: Averages 11.4 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Savannah Harbor area.
    (7) Brunswick Harbor, Brunswick, Georgia Ocean Dredged Material 
Disposal Site.
    (i) Location: 31[deg]02[min]35[sec]N., 81[deg]17[min]40[sec]W.; 
31[deg]02[min]35[sec]N., 81[deg]16[min]30[sec]W.; 
31[deg]00[min]30[sec]N., 81[deg]16[min]30[sec]W.; 
31[deg]00[min]30[sec]N., 81[deg]17[min]42[sec]W.
    (ii) Size: Approximately 2 square nautical miles.
    (iii) Depth: Average 9 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to suitable dredged 
material from the greater Brunswick, Georgia, vicinity.
    (8) Fernandina Beach, FL Dredged Material Disposal Site.
    (i) Location: 30[deg]33[min]00[sec]N., 81[deg]16[min]52[sec]W.; 
30[deg]31[min]00[sec]N., 81[deg]16[min]52[sec]W.; 
30[deg]31[min]00[sec]N., 81[deg]19[min]08[sec]W.; 
30[deg]33[min]00[sec]N., 81[deg]19[min]08[sec]W.
    (ii) Size: Four square nautical miles.
    (iii) Depth: Average 16 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing Use.

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    (vi) Restriction: Disposal shall be limited to dredged material 
which meets the criteria given in the Ocean Dumping Regulations in 40 
CFR part 227.
    (9) Jacksonville, FL Dredged Material Site.
    (i) Location: 30[deg]21[min]30[sec]N., 81[deg]18[min]34[sec]W.; 
30[deg]21[min]30[sec]N., 81[deg]17[min]26[sec]W.; 
30[deg]20[min]30[sec]N., 81[deg]17[min]26[sec]W.; 
30[deg]20[min]30[sec]N., 81[deg]18[min]34[sec]W.
    (ii) Size: One square nautical mile.
    (iii) Depth: Ranges from 12 to 16 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Jacksonville, Florida, area.
    (10) Canaveral Harbor, FL, Dredged Material Dumpsite.
    (i) Location: 28[deg]20[min]15[sec]N., 80[deg]31[min]11[sec]W.; 
28[deg]18[min]51[sec]N., 80[deg]29[min]15[sec]W.; 
28[deg]17[min]13[sec]N., 80[deg]30[min]53[sec]W.; 
28[deg]18[min]36[sec]N., 80[deg]32[min]45[sec]W.
    Center coordinates: 28[deg]18[min]44[sec]N., 80[deg]31[min]00[sec]W. 
(NAD 27).
    (ii) Size: 4 square nautical miles.
    (iii) Depth: Range 47 to 55 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material from the greater Canaveral, Florida, vicinity.
    (11) Fort Pierce Harbor, FL, Fort Pierce, FL, Ocean Dredged material 
Disposal Site.
    (i) Location: 27[deg]28[min]00[sec] N., 80[deg]12[min]33[sec] W.; 
27[deg]28[min]00[sec] N., 80[deg]11[min]27[sec] W.; 
27[deg]27[min]00[sec] N., 80[deg]11[min]27[sec] W.; and 
27[deg]27[min]00[sec] N., 80[deg]12[min]33[sec] W.
    (ii) Size: 1 square nautical mile.
    (iii) Depth: Average range 40 to 54 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to suitable dredged 
material from the greater Fort Pierce Harbor vicinity. All dredged 
material consisting of greater than 10% fine grained material (grain 
size of less than 0.047mm) by weight shall be limited to that part of 
the site east of 80[deg]12[min]00[sec]W. and south of 
27[deg]27[min]20[sec]N.
    (12) Pensacola Nearshore, FL Dredged Material Disposal Site.
    (i) Location: 30[deg]17[min]24[sec]N., 87[deg]18[min]30[sec]W.; 
30[deg]17[min]00[sec]N., 87[deg]19[min]50[sec]W.; 
30[deg]15[min]36[sec]N., 87[deg]17[min]48[sec]W.; 
30[deg]15[min]15[sec]N., 87[deg]19[min]18[sec]W.
    (ii) Size: 2.48 square nautical miles.
    (iii) Depth: Averages 11 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged materials 
which are shown to be predominantly sand (defined by a median grain size 
greater than 0.125 mm and a composition of less than 10% fines) and meet 
the Ocean Dumping Criteria.
    (13) Pensacola, Florida Ocean Dredged Material Disposal Site, i.e. 
the Pensacola (Offshore) Ocean Dredged Material Disposal Site.
    (i) Location: 30[deg]08[min]50[sec]N., 87[deg]19[min]30[sec]W.; 
30[deg]08[min]50[sec]N., 87[deg]16[min]30[sec]W.; 
30[deg]07[min]05[sec][sec]N., 87[deg]16[min]30[sec]W.; 
30[deg]07[min]05[sec]N., 87[deg]19[min]30[sec]W.
    (ii) Size: Approximately 6 square statute miles.
    (iii) Depth: Ranges from 65 to 80 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal is restricted to predominantly fine-
grained dredged material from the greater Pensacola, Florida area that 
meets the Ocean Dumping Criteria but is not suitable for beach 
nourishment or disposal at the existing EPA designated Pensacola 
(Nearshore) ODMDS (Sec. 228.15(h)(11)). The Pensacola (Nearshore) ODMDS 
is restricted to suitable dredged material with a median grain size of 
 0.125 mm and a composition of < 10% fines.
    (14) Mobile, Alabama Dredged Material Disposal Site.
    (i) Location: 30[deg]10[min]00[sec]N., 88[deg]07[min]42[sec]W.; 
30[deg]10[min]24[sec]N., 88[deg]05[min]12[sec]W.; 
30[deg]09[min]24[sec]N., 88[deg]04[min]42[sec]W.; 
30[deg]08[min]30[sec]N., 88[deg]05[min]12[sec]W.; 
30[deg]08[min]30[sec]N., 88[deg]08[min]12[sec]W.
    (ii) Size: 4.8 square nautical miles.
    (iii) Depth: Average 14 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged materials 
which meet the Ocean Dumping Criteria.
    (15) Pascagoula, MS, Ocean Dredged Material Dumpsite.
    (i) Location: 30[deg]12[min]06[sec]N., 88[deg]44[min]30[sec]W.;
    30[deg]11[min]42[sec]N., 88[deg]33[min]24[sec]W.; 
30[deg]08[min]30[sec]N., 88[deg]37[min]00[sec]W.; and 
30[deg]08[min]18[sec]N., 88[deg]41[min]54[sec]W.
    Center coordinates: 30[deg]10[min]09[sec]N., 88[deg]39[min]12[sec]W.
    (ii) Size: 18.5 square nautical miles.
    (iii) Depth: Average 46 feet, range 38-52 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.

[[Page 235]]

    (vi) Restriction: Disposal shall be limited to suitable material 
from the Mississippi Sound and vicinity.
    (16) Gulfport, Mississippi Dredged Material Disposal Site--Eastern 
Site
    (i) Location: 30[deg]11[min]10[sec]N., 88[deg]58[min]24[sec]W.; 
30[deg]11[min]12[sec]N., 88[deg]57[min]30[sec]W.; 
30[deg]07[min]36[sec]N., 88[deg]54[min]24[sec]W.; 
30[deg]07[min]24[sec]N., 88[deg]54[min]48[sec]W.
    (ii) Size: 2.47 square nautical miles.
    (iii) Depth: 9.1 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to materials which meet 
the Ocean Dumping Criteria.
    (17) Gulfport, MS Dredged Material Disposal Site--Western Site.
    (i) Location: 30[deg]12[min]00[sec]N., 89[deg]00[min]30[sec]W.; 
30[deg]12[min]00[sec]N., 88[deg]59[min]30[sec]W.; 
30[deg]11[min]00[sec]N., 89[deg]00[min]00[sec]W.; 
30[deg]07[min]00[sec]N., 88[deg]56[min]30[sec]W.; 
30[deg]06[min]36[sec]N., 88[deg]57[min]00[sec]W.; 
30[deg]10[min]30[sec]N., 89[deg]00[min]36[sec]W.
    (ii) Size: 5.2 square nautical miles.
    (iii) Depth: 8.2 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Disposal shall be limited to dredged material which meets the 
Ocean Dumping Criteria.
    (18) Tampa, Florida; Ocean Dredged Material Disposal Site -------- 
Region IV.
    (i) Location: 27[deg]32[min]27[sec]N.; 83[deg]06[min]02[sec]W; 
27[deg]32[min]27[sec]N.; 83[deg]03[min]46[sec]W.; 
27[deg]30[min]27[sec]N.; 83[deg]06[min]02[sec]W.; 
27[deg]30[min]27[sec]N.; 83[deg]03[min]46[sec]W.
    (ii) Size: Approximately 4 square nautical miles.
    (iii) Depth: Approximately 22 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material from the greater Tampa, Florida vicinity. Disposal shall comply 
with conditions set forth in the most recent approved Site Management 
and Monitoring Plan.
    (19) Miami, Florida; Ocean Dredged Material Disposal Site.
    (i) Location: 25[deg]45[min]30[sec]N.; 80[deg]03[min]54[sec]W.; 
25[deg]45[min]30[sec]N.; 80[deg]02[min]50[sec]W.; 
25[deg]44[min]30[sec]N.; 80[deg]03[min]54[sec]W.; 
25[deg]44[min]30[sec]N.; 80[deg]02[min]50[sec]W.
    Center coordinates are 25[deg]45[min]00[sec] N and 
80[deg]03[min]22[sec] W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 130 to 240 meters.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material from the greater Miami, Florida vicinity. Disposal shall comply 
with conditions set forth in the most recent approved Site Management 
and Monitoring Plan.
    (20) New Wilmington, NC; Ocean Dredged Material Disposal Site.
    (i) Location:

33[deg]46[min] N.........................  78[deg]02.5[min] W.
33[deg]46[min] N.........................  78[deg]01[min] W.
33[deg]41[min] N.........................  78[deg]01[min] W.
33[deg]41[min] N.........................  78[deg]04[min] W.
 

    (ii) Size: Approximately 9.4 square nautical miles.
    (iii) Depth: Ranges from 35-52 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material from the greater Wilmington, North Carolina vicinity. Disposal 
shall comply with conditions set forth in the most recent approved Site 
Management and Monitoring Plan.
    (21) Palm Beach Harbor, FL Ocean Dredged Material Disposal Site.
    (i) Location (NAD83): 26[deg]47[min]30[sec] N., 
79[deg]57[min]09[sec] W.; 26[deg]47[min]30[sec] N., 
79[deg]56[min]02[sec] W.; 26[deg]46[min]30[sec] N., 
79[deg]57[min]09[sec] W.; 26[deg]46[min]30[sec] N., 
79[deg]56[min]02[sec] W. Center coordinates are 26[deg]47[min]00[sec] N 
and 79[deg]56[min]35[sec] W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 525 to 625 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material. Disposal shall comply with conditions set forth in the most 
recent approved Site Management and Monitoring Plan.
    (22) Port Everglades Harbor, FL Ocean Dredged Material Disposal 
Site.
    (i) Location (NAD83): 26[deg]07[min]30[sec] N., 
80[deg]02[min]00[sec] W.; 26[deg]07[min]30[sec] N., 
80[deg]01[min]00[sec] W.; 26[deg]06[min]30[sec] N., 
80[deg]02[min]00[sec] W.; 26[deg]06[min]30[sec] N., 
80[deg]01[min]00[sec] W. Center coordinates are 26[deg]07[min]00[sec] N 
and 80[deg]01[min]30[sec] W.
    (ii) Size: Approximately 1 square nautical mile.
    (iii) Depth: Ranges from 640 to 705 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.

[[Page 236]]

    (vi) Restriction: Disposal shall be limited to suitable dredged 
material. Disposal shall comply with conditions set forth in the most 
recent approved Site Management and Monitoring Plan.
    (23) Port Royal, SC; Ocean Dredged Material Disposal Site.
    (i) Location (NAD83): 32[deg]05.00[min] N., 80[deg]36.47[min] W.; 
32[deg]05.00[min] N., 80[deg]35.30[min] W.; 32[deg]04.00[min] N., 
80[deg]35.30[min] W.; 32[deg]04.00[min] N., 80[deg]36.47[min] W.
    (ii) Size: Approximately 1.0 square nautical miles.
    (iii) Depth: Averages 36 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restriction: Disposal shall be limited to suitable dredged 
material from the greater Port Royal, South Carolina, vicinity. Disposal 
shall comply with conditions set forth in the most recent approved Site 
Management and Monitoring Plan.
    (i) Region IV Final Other Wastes Sites.
    (1) No final sites.
    (2) [Reserved]
    (j) Region VI Final Dredged Material Sites.
    (1) Mississippi River Gulf Outlet, LA.
    (i) Location: 29[deg]32[min]35[sec]N., 89[deg]12[min]38[sec]W.; 
29[deg]29[min]21[sec]N., 89[deg]08[min]00[sec]W.; 
29[deg]24[min]32[sec]N., 88[deg]59[min]23[sec]W.; 
29[deg]24[min]28[sec]N., 88[deg]59[min]39[sec]W.; 
29[deg]28[min]59[sec]N., 89[deg]08[min]19[sec]W.; 
29[deg]32[min]15[sec]N., 89[deg]12[min]57[sec]W.; thence to point of 
beginning.
    (ii) Size: 6.03 square nautical miles.
    (iii) Depth: Ranges from 20 to 40 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the vicinity of Mississippi River Gulf Outlet.
    (2) Southwest Pass--Mississippi River, LA.
    (i) Location: 28[deg]54[min]12[sec]N., 89[deg]27[min]15[sec]W.; 
28[deg]54[min]12[sec]N., 89[deg]26[min]00[sec]W.; 
28[deg]51[min]00[sec]N., 89[deg]27[min]15[sec]W.; 
28[deg]51[min]00[sec]N., 89[deg]26[min]00[sec]W.
    (ii) Size: 3.44 square nautical miles.
    (iii) Depth: Ranges from 2.7 to 32.2 meters.
    (iv) Primary use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the vicinity of the Southwest Pass Channel.
    (3) Barataria Bay Waterway, LA.
    (i) Location: 29[deg]16[min]10[sec]N., 89[deg]56[min]20[sec]W.; 
29[deg]14[min]19[sec]N., 89[deg]53[min]16[sec]W.; 
29[deg]14[min]00[sec]N., 89[deg]53[min]36[sec]W.; 
29[deg]16[min]29[sec]N., 89[deg]55[min]59[sec]W.
    (ii) Size: 1.4 square nautical miles.
    (iii) Depth: Ranges from 8-20 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the vicinity of Barataria Bay Waterway.
    (4) Houma Navigation Canal, Louisiana.
    (i) Location: 29[deg]05[min]22.3[sec]N., 90[deg]34[min]43[sec]W.; 
thence following a line 1000 feet west of the channel centerline to 
29[deg]02[min]17.8[sec]N., 90[deg]34[min]28.4[sec]W.; thence to 
29[deg]02[min]12.6[sec]N., 90[deg]35[min]27.8[sec]W.; thence to 
29[deg]05[min]30.8[sec]N., 90[deg]35[min]27.8[sec]W.; thence to the 
point of beginning.
    (ii) Size: 2.08 square nautical miles.
    (iii) Depth: Ranges from 6 to 30 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the vicinity of Cat Island Pass, Louisiana.
    (5) Calcasieu, LA Dredged Material Site 1.
    (i) Location: 29[deg]45[min]39[sec]N., 93[deg]19[min]36[sec]W.; 
29[deg]42[min]42[sec]N., 93[deg]19[min]06[sec]W.; 
29[deg]42[min]36[sec]N., 93[deg]19[min]48[sec]W.; 
29[deg]44[min]42[sec]N., 93[deg]20[min]12[sec]W.; 
29[deg]44[min]42[sec]N., 93[deg]20[min]24[sec]W.; 
29[deg]45[min]27[sec]N., 93[deg]20[min]33[sec]W.
    (ii) Size: 1.76 square nautical miles.
    (iii) Depth: Ranges from 2 to 8 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the vicinity of the Calcasieu River and Pass Project.
    (6) Calcasieu, LA Dredged Material Site 2.
    (i) Location: 29[deg]44[min]31[sec]N., 93[deg]20[min]43[sec]W.; 
29[deg]39[min]45[sec]N., 93[deg]19[min]56[sec]W.; 
29[deg]39[min]34[sec]N., 93[deg]20[min]46[sec]W.; 
29[deg]44[min]25[sec]N., 93[deg]21[min]33[sec]W.
    (ii) Size: 3.53 square nautical miles.
    (iii) Depth: Ranges from 2 to 11 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the vicinity of the Calcasieu River and Pass Project.
    (7) Calcasieu, LA Dredged Material Site 3.

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    (i) Location: 29[deg]37[min]50[sec]N., 93[deg]19[min]37[sec]W.; 
29[deg]37[min]25[sec]N., 93[deg]19[min]33[sec]W.; 
29[deg]33[min]55[sec]N., 93[deg]16[min]23[sec]W.; 
29[deg]33[min]49[sec]N., 93[deg]16[min]5[sec]W.; 
29[deg]30[min]59[sec]N., 93[deg]13[min]51[sec]W.; 
29[deg]29[min]10[sec]N., 93[deg]13[min]49[sec]W.; 
29[deg]29[min]05[sec]N., 93[deg]14[min]23[sec]W.; 
29[deg]30[min]49[sec]N., 93[deg]14[min]25[sec]W.; 
29[deg]37[min]26[sec]N., 93[deg]20[min]24[sec]W.; 
29[deg]37[min]44[sec]N., 93[deg]20[min]27[sec]W.
    (ii) Size: 5.88 square nautical miles.
    (iii) Depth: Ranges from 11 to 14 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the vicinity of the Calcasieu River and Pass Project.
    (8) Sabine-Neches, TX Dredged Material Site 1.
    (i) Location: 29[deg]28[min]03[sec]N., 93[deg]41[min]14[sec]W.; 
29[deg]26[min]11[sec]N., 93[deg]41[min]14[sec]W.; 
29[deg]26[min]11[sec]N., 93[deg]44[min]11[sec]W.
    (ii) Size: 2.4 square nautical miles.
    (iii) Depth: Ranges from 11-13 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Sabine-Neches area.
    (9) Sabine-Neches, TX Dredged Material Site 2.
    (i) Location: 29[deg]30[min]41[sec]N., 93[deg]43[min]49[sec]W.; 
29[deg]28[min]42[sec]N., 93[deg]41[min]33[sec]W.; 
29[deg]28[min]42[sec]N., 93[deg]44[min]49[sec]W.; 
29[deg]30[min]08[sec]N., 93[deg]46[min]27[sec]W.
    (ii) Size: 4.2 square nautical miles.
    (iii) Depth: Ranges from 9-13 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Sabine-Neches area.
    (10) Sabine-Neches, TX Dredged Material Site 3.
    (i) Location: 29[deg]34[min]24[sec]N., 93[deg]48[min]13[sec]W.; 
29[deg]32[min]47[sec]N., 93[deg]46[min]16[sec]W.; 
29[deg]32[min]06[sec]N., 93[deg]46[min]29[sec]W.; 
29[deg]31[min]42[sec]N., 93[deg]48[min]16[sec]W.; 
29[deg]32[min]59[sec]N., 93[deg]49[min]48[sec]W.
    (ii) Size: 4.7 square nautical miles.
    (iii) Depth: 10 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Sabine-Neches area.
    (11) Sabine-Neches, TX, Dredged Material Site 4.
    (i) Location: 29[deg]38[min]09[sec]N., 93[deg]49[min]23[sec]W.; 
29[deg]35[min]53[sec]N., 93[deg]48[min]18[sec]W.; 
29[deg]35[min]06[sec]N., 93[deg]50[min]24[sec]W.; 
29[deg]36[min]37[sec]N., 93[deg]51[min]09[sec]W.; 
29[deg]37[min]00[sec]N., 93[deg]50[min]06[sec]W.; 
29[deg]37[min]46[sec]N., 93[deg]50[min]26[sec]W.
    (ii) Size: 4.2 square nautical miles.
    (iii) Depth: Ranges from 5-9 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Sabine-Neches area.
    (12) Galveston, TX Dredged Material Site.
    (i) Location: 29[deg]18[min]00[sec]N., 94[deg]39[min]30[sec]W; 
29[deg]15[min]54[sec]N., 94[deg]37[min]06[sec]W.; 
29[deg]14[min]24[sec]N., 94[deg]3[min]8[min]42[sec]W.; 
29[deg]16[min]54[sec]N., 94[deg]41[min]30[sec]W.
    (ii) Size: 6.6 square nautical miles.
    (iii) Depth: Ranges from 10 to 15.5 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Galveston, Texas area.
    (13) Freeport Harbor, TX, New Work (45 Foot Project).
    (i) Location: 28[deg]50[sec]51[sec]N., 95[deg]13[min]54[sec]W.; 
28[deg]51[min]44[sec]N., 95[deg]14[min]49[sec]W.; 
28[deg]50[min]15[sec]N., 95[deg]16[min]40[sec]W.; 
28[deg]49[min]22[sec]N., 95[deg]15[min]45[sec]W.
    (ii) Size: 2.64 square nautical miles.
    (iii) Depth: 54 to 61 feet.
    (iv) Primary Use: Construction (new work) dredged material.
    (v) Period of Use: Indefinite period of time.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Freeport Harbor Entrance and Jetty Channels, Texas.
    (14) Freeport Harbor, TX, Maintenance (45 Foot Project).
    (i) Location: 28[deg]54[min]00[sec]N., 95[deg]15[min]49[sec]W.; 
28[deg]53[min]28[sec]N., 95[deg]15[min]16[sec]W.; 
28[deg]52[min]00[sec]N., 95[deg]16[min]59[sec]W.; 
28[deg]52[min]32[sec]N., 95[deg]17[min]32[sec]W.
    (ii) Size: 1.53 square nautical miles.
    (iii) Depth: 31 to 38 feet.
    (iv) Primary use: Maintenance dredged material.
    (v) Period of Use: Indefinite period of time.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Freeport Harbor Entrance and Jetty Channels, Texas.
    (15) Matagorda Ship Channel, TX.
    (i) Location: 28[deg]23[min]48[sec]N., 96[deg]18[min]00[sec]W.; 
28[deg]23[min]21[sec]N., 96[deg]18[min]31[sec]W.; 
28[deg]22[min]43[sec]N., 96[deg]17[min]52[sec]W.; 
28[deg]23[min]11[sec]N., 96[deg]17[min]22[sec]W.
    (ii) Size: 0.56 square nautical mile.
    (iii) Depth: Ranges from 25-40 feet.
    (iv) Primary Use: Dredged Material.

[[Page 238]]

    (v) Period of Use: Indefinite period of time.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Matagorda Ship Channel, Texas.
    (16) Homeport Project, Port Aransas, TX.
    (i) Location: 27[deg]47[min]42[sec] N., 97[deg]00[min]12[sec] W.; 
27[deg]47[min]15[sec] N., 96[deg]59[min]25[sec] W.; 
27[deg]46[min]17[sec] N., 97[deg]01[min]12[sec] W.; 
27[deg]45[min]49[sec] N., 97[deg]00[min]25[sec] W.
    (ii) Size: 1.4 square miles.
    (iii) Depth: Ranges from 45-55 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: 50 years.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the U.S. Navy Homeport Project, Corpus Christi/Ingleside, TX.
    (17) Corpus Christi Ship Channel, TX.
    (i) Location: 27[deg]49[min]10[sec]N., 97[deg]01[min]09[sec]W.; 
27[deg]48[min]42[sec]N., 97[deg]00[min]21[sec]W.; 
27[deg]48[min]06[sec]N., 97[deg]00[min]48[sec]W.; 
27[deg]48[min]33[sec]N., 97[deg]01[min]36[sec]W.
    (ii) Size: 0.63 square nautical mile.
    (iii) Depth: Ranges from 35 to 50 feet.
    (iv) Primary use: Dredged material.
    (v) Period of use: Indefinite period of time.
    (vi) Restrictions: Disposal shall be limited to dredged material 
from the Corpus Christi Ship Channel, Texas.
    (18) Port Mansfield, TX.
    (i) Location: 26[deg]34[min]24[sec]N., 97[deg]15[min]15[sec]W.; 
26[deg]34[min]26[sec]N., 97[deg]14[min]17[sec]W.; 
26[deg]33[min]57[sec]N., 97[deg]14[min]17[sec]W.; 
26[deg]33[min]55[sec]N., 97[deg]15[min]15[sec]W.
    (ii) Size: 0.42 Square nautical miles.
    (iii) Depth: Ranges from 35-50 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Indefinite period of time.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Port Mansfield Entrance Channel, Texas.
    (19) Brazos Island Harbor, TX.
    (i) Location: 26[deg]04[min]32[sec] N., 97[deg]07[min]26[sec] W.; 
26[deg]04[min]32[sec] N., 97[deg]06[min]30[sec] W.; 
26[deg]04[min]02[sec] N., 97[deg]06[min]30[sec] W.; 
26[deg]04[min]02[sec] N., 97[deg]07[min]26[sec] W.
    (ii) Size: 0.42 square nautical miles.
    (iii) Depth: Ranges from 55 to 65 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Indefinite period of time.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the Brazos Island Harbor Entrance Channel, Texas.
    (20) Brazos Island Harbor (42-Foot Project), TX.
    (i) Location: 26[deg]04[min]47[sec] N., 97[deg]05[min]07[sec] W.; 
26[deg]05[min]16[sec] N., 97[deg]05[min]04[sec] W.; 
26[deg]05[min]10[sec] N., 97[deg]04[min]06[sec] W.; 
26[deg]04[min]42[sec] N., 97[deg]04[min]09[sec] W.
    (ii) Size: 0.42 square nautical miles.
    (iii) Depth: Ranges from 60-67 feet.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Indefinite period of time.
    (vi) Restrictions: Disposal shall be limited to construction 
material dredged from the Brazos Island Harbor Entrance Channel, Texas.
    (21) Atchafalaya River and Bayous Chene, Boeuf, and Black, LA
    (i) Location: 29E20[min]59.92[min] N, 91E 23[min] 33.23[sec] W; 
29E20[min]43.94[sec] N, 91E23[min]09.73[sec] W; 29E08[min]15.46[sec] N, 
91E34[min]51.02[sec] W; and 29E07[min]59.43[sec] N, 91E34[min]27.51[sec] 
W.
    (ii) Size: 9.14 square miles.
    (iii) Depth: Average water depth of 16 feet.
    (iv) Primary Use: Dredge material.
    (v) Period of Use: Indefinite period of time.
    (vi) Restriction: Disposal shall be limited to dredged material from 
the bar channel of the Atchafalaya River and Bayous Chene, Boeuf, and 
Black, Louisiana.
    (k) Region VI Final Other Wastes Sites.
    (1) No final sites.
    (2) [Reserved]
    (l) Region IX Final Dredged Material Sites.
    (1) San Diego, CA (LA-5).
    (i) Location: Center coordinates of the site are: 32[deg]36.83[min] 
North Latitude and 117[deg]20.67[min] West Latitude (North American 
Datum from 1927), with a radius of 3,000 feet (910 meters).
    (ii) Size: 0.77 square nautical miles.
    (iii) Depth: 460 to 660 feet (145 to 200 meters).
    (iv) Primary Use: Ocean dredged material disposal.
    (v) Period of Use: Continuing use.
    (vi) Restrictions: Disposal shall be limited to dredged materials 
that comply with EPA's Ocean Dumping Regulations and Corps Permitting 
Regulations.
    (2) Los Angeles/Long Beach, CA (LA-2).
    (i) Location: 33[deg]37.10[min] North Latitude by 118[deg]17.40[min] 
West Longitude (North American Datum from 1983), with a radius of 3,000 
feet (910 meters).
    (ii) Size: 0.77 square nautical miles.
    (iii) Depth: 380 to 1060 feet (110 to 320 meters).

[[Page 239]]

    (iv) Primary use: Ocean dredged material disposal.
    (v) Period of use: Continuing use, subject to submission of a 
revised Consistency Determination to the California Coastal Commission 
after 5 years of site management and monitoring.
    (vi) Restrictions: Disposal shall be limited to dredged sediments 
that comply with EPA's Ocean Dumping Regulations.
    (3) San Francisco Deepwater Ocean Site (SF-DODS) Ocean Dredged 
Material Disposal Site--Region IX.
    (i) Location: Center coordinates of the oval-shaped site are: 
37[deg]39.0[min] North latitude by 123[deg]29.0[min] West longitude 
(North American Datum from 1983), with length (north-south axis) and 
width (west-east axis) dimensions of approximately 4 nautical miles (7.5 
kilometers) and 2.5 nautical miles (4.5 kilometers), respectively.
    (ii) Size: 6.5 square nautical miles (22 square kilometers).
    (iii) Depth: 8,200 to 9,840 feet (2,500 to 3,000 meters).
    (iv) Use Restricted to Disposal of: Dredged materials.
    (v) Period of Use: Continuing use over 50 years from date of site 
designation, subject to restrictions and provisions set forth below.
    (vi) Restrictions/provisions: The remainder of this Sec. 
228.15(l)(3) (hereinafter referred to as ``this section'') constitutes 
the required Site Management and Monitoring Plan (SMMP) for the SF-DODS. 
This SMMP shall be supplemented by a Site Management and Monitoring Plan 
Implementation Manual (SMMP Implementation Manual) containing more 
detailed operational guidance. The SMMP Implementation Manual may be 
periodically revised as necessary; proposed revisions to the SMMP 
Implementation Manual shall be made following opportunity for public 
review and comment. Adherence to the provisions of the most current SMMP 
Implementation Manual, including mandatory permit conditions, site 
monitoring activities, and any other condition(s) EPA or the Corps have 
required as part of the project authorization or permit, is a 
requirement for use of the SF-DODS. SF-DODS use shall be subject to the 
following restrictions and provisions:
    (vii) Type and capacity of disposed materials. Site disposal 
capacity is 4.8 million cubic yards of suitable dredged material per 
year for the remaining period of site designation. This limit is based 
on considerations in the regional Long Term Management Strategy for the 
placement of dredged material within the San Francisco Bay region, and 
on monitoring of site use since the SF-DODS was designated in 1994.
    (viii) Permit/project conditions. Paragraph (l)(3)(viii)(A) of this 
section sets forth requirements for inclusion in permits to use the SF-
DODS, and in all Army Corps of Engineers federal project authorizations. 
Paragraph (l)(3)(viii)(B) of this section describes additional project-
specific conditions that will be required of disposal permits and 
operations as appropriate. Paragraph (l)(3)(viii)(C) of this section 
describes how alternative permit conditions may be authorized by EPA and 
the Corps of Engineers. All references to ``permittees'' shall be deemed 
to include the Army Corps of Engineers when implementing a federal 
dredging project.
    (A) Mandatory conditions. All permits or federal project 
authorizations authorizing use of the SF-DODS shall include the 
following conditions, unless approval for an alternative permit 
condition is sought and granted pursuant to paragraph (l)(3)(viii)(C) of 
this section:
    (1) Transportation of dredged material to the SF-DODS shall only be 
allowed when weather and sea state conditions will not interfere with 
safe transportation and will not create risk of spillage, leak or other 
loss of dredged material in transit to the SF-DODS. No disposal trips 
shall be initiated when the National Weather Service has issued a gale 
warning for local waters during the time period necessary to complete 
dumping operations, or when wave heights are 16 feet or greater. The 
permittee must consult the most current version of the SMMP 
Implementation Manual for additional restrictions and/or clarifications 
regarding other sea state parameters, including, but not limited to wave 
period.
    (2) All vessels used for dredged material transportation and 
disposal must

[[Page 240]]

be loaded to no more than 80 percent by volume of the vessel. Before any 
disposal vessel departs for the SF-DODS, an independent quality control 
inspector must certify in writing that the vessel meets the conditions 
and requirements of a certification checklist that contains all of the 
substantive elements found in the example contained in the most current 
SMMP Implementation Manual. For the purposes of paragraph (l)(3)(viii) 
of this section, ``independent'' means not an employee of the permittee 
or dredging contractor; however, the Corps of Engineers may provide 
inspectors for Corps of Engineers dredged material disposal projects.
    (3) Dredged material shall not be leaked or spilled from disposal 
vessels during transit to the SF-DODS.
    (4) Disposal vessels in transit to and from the SF-DODS should 
remain at least three nautical miles from the Farallon Islands whenever 
possible. Closer approaches should occur only in situations where the 
designated vessel traffic lane enters the area encompassed by the 3-mile 
limit, and where safety may be compromised by staying outside of the 3-
mile limit. In no case may disposal vessels leave the designated vessel 
traffic lane.
    (5) When dredged material is discharged within the SF-DODS, no 
portion of the vessel from which the materials are to be released (e.g., 
hopper dredge or towed barge) can be further than 1,900 feet (600 
meters) from the center of the target area at 37[deg]39[min] N, 
123[deg]29[min] W.
    (6) No more than one disposal vessel may be present within the 
permissible dumping target area referred to in paragraph 
(l)(3)(viii)(A)(5) of this section at any time.
    (7) Disposal vessels shall use an appropriate navigation system 
capable of indicating the position of the vessel carrying dredged 
material (for example, a hopper dredged vessel or towed barge) with a 
minimum accuracy and precision of 100 feet during all disposal 
operations. The system must also indicate the opening and closing of the 
doors of the vessel carrying the dredged material. If the positioning 
system fails, all disposal operations must cease until the navigational 
capabilities are restored. The back-up navigation system, with all the 
capabilities listed in this condition, must be in place on the vessel 
carrying the dredged material.
    (8) The permittee shall maintain daily records of the amount of 
material dredged and loaded into barges for disposal, the times that 
disposal vessel depart for, arrive at and return from the SF-DODS, the 
exact locations and times of disposal, and the volumes of material 
disposed at the SF-DODS during each vessel trip. The permittee shall 
further record wind and sea state observations at intervals to be 
established in the permit.
    (9) For each disposal vessel trip, the permittee shall maintain a 
computer printout from a Global Positioning System or other acceptable 
navigation system showing transit routes and disposal coordinates, 
including the time and position of the disposal vessel when dumping was 
commenced and completed.
    (10) An independent quality control inspector (as defined in 
paragraph (l)(3)(viii)(A)(2)) of this section shall observe all dredging 
and disposal operations. The inspector shall verify the information 
required in paragraphs (l)(3)(viii)(A)(8) and (9) of this section. The 
inspector shall promptly inform permittees of any inaccuracies or 
discrepancies concerning this information and shall prepare summary 
reports, which summarize all such inaccuracies and discrepancies, from 
time to time as shall be specified in permits. Such summary reports 
shall be sent by the permittee to the District Engineer and the Regional 
Administrator within a time interval that shall be specified in the 
permit.
    (11) The permittee shall report any anticipated or actual permit 
violations to the District Engineer and the Regional Administrator 
within 24 hours of discovering such violation. If any anticipated or 
actual permit violations occur within the Gulf of the Farallones or the 
Monterey Bay National Marine Sanctuaries, the permittee must also report 
any such violation to the respective Sanctuary Manager within 24 hours. 
In addition, the permittee shall prepare and submit reports, certified 
accurate by the independent quality

[[Page 241]]

control inspector, on a frequency that shall be specified in permits, to 
the District Engineer and the Regional Administrator setting forth the 
information required by Mandatory Conditions in paragraphs 
(l)(3)(viii)(A)(8) and (9) of this section.
    (12) Permittees, and the Corps in its Civil Works projects, must 
make arrangements for independent observers to be present on disposal 
vessels for the purpose of conducting shipboard surveys of seabirds and 
marine mammals. Observers shall employ standardized monitoring 
protocols, as referenced in the most current SMMP Implementation Manual. 
At a minimum, permittees shall ensure that independent observers are 
present on at least one disposal trip during each calendar month that 
disposal occurs, AND on average at least once every 25 vessel trips to 
the SF-DODS.
    (13) At the completion of short-term dredging projects, at least 
annually for ongoing projects, and at any other time or interval 
requested by the District Engineer or Regional Administrator, permittees 
shall prepare and submit to the District Engineer and Regional 
Administrator a report that includes complete records of all dredging, 
transport and disposal activities, such as navigation logs, disposal 
coordinates, scow certification checklists, and other information 
required by permit conditions. Electronic data submittals may be 
required to conform to a format specified by the agencies. Permittees 
shall include a report indicating whether any dredged material was 
dredged outside the areas authorized for dredging or was dredged deeper 
than authorized for dredging by their permits.
    (B) Project-specific conditions. Permits or federal project 
authorizations authorizing use of the SF-DODS may include the following 
conditions, if EPA determines these conditions are necessary to 
facilitate safe use of the SF-DODS, the prevention of potential harm to 
the environment or accurate monitoring of site use:
    (1) Permittees may be required to limit the speed of disposal 
vessels in transit to the SF-DODS to a rate that is safe under the 
circumstances and will prevent the spillage of dredged materials.
    (2) Permittees may be required to use automated data logging systems 
for recording navigation and disposal coordinates and/or load levels 
throughout disposal trips when such systems are feasible and represent 
an improvement over manual recording methodologies.
    (3) Any other conditions that EPA or the Corps of Engineers 
determine to be necessary or appropriate to facilitate compliance with 
the requirements of the MPRSA and this section may be included in site 
use permits.
    (C) Alternative permit/project conditions. Alternatives to the 
permit conditions specified in paragraph (l)(3)(viii) of this section in 
a permit or federal project authorization may be authorized if the 
permittee demonstrates to the District Engineer and the Regional 
Administrator that the alternative conditions are sufficient to 
accomplish the specific intended purpose of the permit condition in 
issue and further demonstrates that the waiver will not increase the 
risk of harm to the environment, the health or safety of persons, nor 
will impede monitoring of compliance with the MPRSA, regulations 
promulgated under the MPRSA, or any permit issued under the MPRSA.
    (ix) Site monitoring. Data shall be collected in accordance with a 
three-tiered site monitoring program which consists of three 
interdependent types of monitoring for each tier: Physical, chemical and 
biological. In addition, periodic confirmatory monitoring concerning 
potential site contamination shall be performed. Specific guidance for 
site monitoring tasks required by this paragraph shall be described in a 
Site Management and Monitoring Implementation Manual (SMMP 
Implementation Manual) developed by EPA. The SMMP Implementation Manual 
shall be reviewed periodically and any necessary revisions to the Manual 
will be issued for public review under an EPA Public Notice.
    (A) Tier 1 monitoring activities. Tier 1 monitoring activities shall 
consist of the following:
    (1) Physical monitoring. Tier 1 Physical Monitoring shall consist of 
a physical survey to map the area on the

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seafloor within and in the vicinity of the disposal site where dredged 
material has been deposited (the footprint). Such a survey shall use 
appropriate technology (for example, sediment profile photography) to 
determine the areal extent and thickness of the disposed dredged 
material, and to determine if any dredged material has deposited outside 
of the disposal site boundary.
    (2) Chemical monitoring. Tier 1 Chemical Monitoring shall consist of 
collecting, processing, and preserving boxcore samples of sediments so 
that such sediments could be subjected to sediment chemistry analysis in 
the appropriate tier. Samples shall be collected within the dredged 
material footprint, outside of the dredged material footprint, and 
outside of the disposal site boundaries. Samples within the footprint 
shall be subjected to chemical analysis in annual Tier 1 activity. 
Samples from outside of the footprint and outside of the disposal site 
boundaries shall be archived and analyzed only when the criteria 
requiring Tier 2 as specified in paragraph (l)(3)(x) of this section are 
met. A sufficient number of samples shall be collected so that the 
potential for adverse impacts due to elevated chemistry can be assessed 
with an appropriate time-series or ordinal technique.
    (3) Biological monitoring. Tier 1 Biological Monitoring shall have 
two components: Monitoring of pelagic communities and monitoring of 
benthic communities.
    (i) Pelagic communities. Tier 1 Biological Monitoring shall include 
regional surveys of seabirds, marine mammals and mid-water column fish 
populations appropriate for evaluating how these populations might be 
affected by disposal site use. A combination of annual regional and 
periodic (random) shipboard surveys of seabirds and marine mammals will 
be used. The regional survey designs for each category of biota shall be 
similar to that used for the regional characterization studies 
referenced in the Final Environmental Impact Statement for Designation 
of a Deep Water Ocean Dredged Material Disposal Site off San Francisco, 
California (August 1993) with appropriate realignments to accommodate 
transects within and in the vicinity of the SF-DODS. The periodic 
shipboard surveys shall be performed from vessels involved in dredged 
material disposal operations at the SF-DODS as specified in permit 
conditions imposed pursuant to paragraph (l)(3)(viii)(A)(12) of this 
section. The minimum number of surveys must be sufficient to 
characterize the disposal operations for each project, and, as 
practicable, provide seasonal data for an assessment of the potential 
for adverse impacts for the one-year period. An appropriate time-series 
(ordinal), and community analysis shall be performed using data 
collected during the current year and previous years.
    (ii) Benthic communities. Tier 1 Biological Monitoring shall include 
collection and preservation of boxcore samples of benthic communities so 
that such samples could be analyzed as a Tier 2 activity.
    (4) Annual reporting. The results of the annual Tier 1 studies shall 
be compiled in an annual report which will be available for public 
review.
    (B) Tier 2 monitoring activities. Tier 2 monitoring activities shall 
consist of the following:
    (1) Physical monitoring. Tier 2 Physical Monitoring shall consist of 
oceanographic studies conducted to validate and/or improve the models 
used to predict the dispersion in the water column and deposition of 
dredged material on the seafloor at the SF-DODS. The appropriate 
physical oceanographic studies may include: The collection of additional 
current meter data, deployment of sediment traps, and deployment of 
surface and subsurface drifters.
    (2) Chemical monitoring. Tier 2 Chemical Monitoring shall consist of 
performing sediment chemistry analysis on samples collected and 
preserved in Tier 1 from outside of the footprint and outside of the 
disposal site boundaries.
    (3) Biological monitoring. Tier 2 Biological Monitoring shall 
involve monitoring of pelagic communities and monitoring of benthic 
communities.
    (i) Pelagic communities. Tier 2 Biological Monitoring for pelagic 
communities shall include supplemental surveys of similar type to those 
in Tier 1, or other surveys as appropriate.

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    (ii) Benthic communities. Tier 2 Biological Monitoring for benthic 
communities shall include a comparison of the benthic community within 
the dredged material footprint to benthic communities in adjacent areas 
outside of the dredged material footprint. An appropriate time-series 
(ordinal) and community analysis shall be performed using data collected 
during the current year and previous years to determine whether there 
are adverse changes in the benthic populations outside of the disposal 
site which may endanger the marine environment.
    (4) Annual reporting. The results of any required Tier 2 studies 
shall be compiled in an annual report which will be available for public 
review.
    (C) Tier 3 monitoring activities. Tier 3 monitoring activities shall 
consist of the following:
    (1) Physical monitoring. Tier 3 physical monitoring shall consist of 
advanced oceanographic studies to study the dispersion of dredged 
material in the water column and the deposition of dredged material on 
the seafloor in the vicinity of the SF-DODS. Such physical monitoring 
may include additional, intensified studies involving the collection of 
additional current meter data, deployment of sediment traps, and 
deployment of surface and subsurface drifters. Such studies may include 
additional sampling stations, greater frequency of sampling, more 
advanced sampling methodologies or equipment, or other additional 
increased study measures compared to similar studies conducted in Tier 1 
or 2.
    (2) Chemical monitoring. Tier 3 Chemical Monitoring shall consist of 
analysis of tissues of appropriate field-collected benthic and/or 
epifaunal organisms to determine bioaccumulation of contaminants that 
may be associated with dredged materials deposited at the SF-DODS. 
Sampling and analysis shall be designed and implemented to determine 
whether the SF-DODS is a source of adverse bioaccumulation in the 
tissues of benthic species collected at or outside the SF-DODS, compared 
to adjacent unimpacted areas, which may endanger the marine environment. 
Appropriate sampling methodologies for these tests will be determined 
and the appropriate analyses will involve the assessment of benthic body 
burdens of contaminants and correlation with comparison of the benthic 
communities inside and outside of the sediment footprint.
    (3) Biological monitoring. Tier 3 biological monitoring shall have 
two components: monitoring of pelagic communities and monitoring of 
benthic communities.
    (i) Pelagic communities. Tier 3 Biological Monitoring shall include 
advanced studies of seabirds, marine mammals and mid-water column fish 
to evaluate how these populations might be affected by disposal site 
use. Such studies may include additional sampling stations, greater 
frequency of sampling, more advanced sampling methodologies or 
equipment, or other additional increased study measures compared to 
similar studies conducted in Tier 1 or 2. Studies may include evaluation 
of sub-lethal changes in the health of pelagic organisms, such as the 
development of lesions, tumors, developmental abnormality, decreased 
fecundity or other adverse sub-lethal effect.
    (ii) Benthic communities. Tier 3 Biological Monitoring shall include 
advanced studies of benthic communities to evaluate how these 
populations might be affected by disposal site use. Such studies may 
include additional sampling stations, greater frequency of sampling, 
more advanced sampling methodologies or equipment, or other additional 
increased study measures compared to similar studies conducted in Tier 
2. Studies may include evaluation of sub-lethal changes in the health of 
benthic organisms, such as the development of lesions, tumors, 
developmental abnormality, decreased fecundity or other adverse sub-
lethal effect.
    (4) Reporting. The results of any required Tier 3 studies shall be 
compiled in a report which will be available for public review.
    (D) Periodic confirmatory monitoring. At least once every three 
years, the following confirmatory monitoring activities will be 
conducted and results compiled in a report which will be available for 
public review: Samples of sediments taken from the dredged material 
footprint shall be subjected to

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bioassay testing using one or more appropriate sensitive marine species 
consistent with applicable ocean disposal testing guidance (``Green 
Book'' or related Regional Implementation Agreements), as determined by 
the Regional Administrator, to confirm whether contaminated sediments 
are being deposited at the SF-DODS despite extensive pre-disposal 
testing. In addition, near-surface arrays of appropriate filter-feeding 
organisms (such as mussels) shall be deployed in at least three 
locations in and around the disposal site for at least one month during 
active site use, to confirm whether substantial bioaccumulation of 
contaminants may be associated with exposure to suspended sediment 
plumes from multiple disposal events. One array must be deployed outside 
the influence of any expected plumes to serve as a baseline reference.
    (x) Site management actions. Once disposal operations at the site 
begin, the three-tier monitoring program described in paragraphs 
(l)(3)(ix) (A) through (C) of this section shall be implemented on an 
annual basis, through December 31, 1998, independent of the actual 
volumes disposed at the site. Thereafter, the Regional Administrator may 
establish a minimum annual disposal volume (not to exceed 10 percent of 
the designated site capacity at any time) below which this monitoring 
program need not be fully implemented. The Regional Administrator shall 
promptly review monitoring reports for the SF-DODS along with any other 
information available to the Regional Administrator concerning site 
monitoring activities. If the information gathered from monitoring at a 
given monitoring tier is not sufficient for the Regional Administrator 
to base reasonable conclusions as to whether disposal at the SF-DODS 
might be endangering the marine ecosystem, then the Regional 
Administrator shall require intensified monitoring at a higher tier. If 
monitoring at a given tier establishes that disposal at the SF-DODS is 
endangering the marine ecosystem, then the Regional Administrator shall 
require modification, suspension or termination of site use.
    (A) Selection of site monitoring tiers--(1) Physical monitoring. 
Physical monitoring shall remain limited to Tier 1 monitoring when Tier 
1 monitoring establishes that no significant amount of dredged material 
has been deposited or transported outside of the site boundaries. Tier 2 
monitoring shall be employed when Tier 1 monitoring is insufficient to 
conclude that a significant amount of dredged material as defined in 
paragraph (l)(3)(x)(A)(4) of this section has not been deposited or 
transported outside of the site boundaries.
    (2) Chemical monitoring. (i) Chemical monitoring shall remain 
limited to Tier 1 Chemical Monitoring when the results of Physical 
Monitoring indicate that a significant amount of dredged material as 
defined in paragraph (l)(3)(x)(A)(4) of this section has not been 
deposited or transported off-site, and Tier 1 Chemical Monitoring 
establishes that dredged sediments deposited at the disposal site do not 
contain levels of chemical contaminants that are significantly elevated 
above the range of chemical contaminant levels in dredged sediments that 
the Regional Administrator and the District Engineer found to be 
suitable for disposal at the SF-DODS pursuant to 40 CFR part 227.
    (ii) Tier 2 monitoring shall be employed when the results of 
Physical Monitoring indicate that a significant amount of dredged 
material as defined in paragraph (l)(3)(x)(A)(4) of this section has 
been deposited off-site, and Tier 1 Chemical Monitoring is insufficient 
to establish that dredged sediments deposited at the disposal site do 
not contain levels of chemical contaminants that are significantly 
elevated above the range of chemical contaminant levels in dredged 
sediments that the Regional Administrator and the District Engineer 
found to be suitable for disposal at the SF-DODS pursuant to 40 CFR part 
227.
    The Regional Administrator may employ Tier 2 monitoring when 
available evidence indicates that a significant amount of dredged 
material as defined in paragraph (l)(3)(x)(A)(4) of this section has 
been deposited near the SF-DODS site boundary.
    (iii) Tier 3 monitoring shall be employed within and outside the 
dredged

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material footprint when Tier 2 Chemical Monitoring is insufficient to 
establish that dredged sediments deposited at the disposal site do not 
contain levels of chemical contaminants that are significantly elevated 
above the range of chemical contaminant levels in dredged sediments that 
the Regional Administrator and the District Engineer found to be 
suitable for disposal at the SF-DODS pursuant to 40 CFR part 227.
    (3) Biological monitoring. (i) Pelagic communities. Biological 
monitoring for pelagic communities shall remain limited to Tier 1 
monitoring when Tier 1 monitoring establishes that disposal at the SF-
DODS has not endangered the monitored pelagic communities. When Tier 1 
monitoring is insufficient to make reasonable conclusions whether 
disposal at the site has endangered the monitored pelagic communities, 
then Tier 2 monitoring of pelagic communities shall be employed. When 
Tier 2 monitoring is insufficient to make reasonable conclusions whether 
disposal at the site has endangered the monitored pelagic communities, 
then Tier 3 monitoring of pelagic communities shall be employed.
    (ii) Benthic communities. Biological monitoring for benthic 
communities shall remain limited to Tier 1 monitoring when physical 
monitoring establishes that a significant amount of dredged material has 
not been deposited outside of the site boundaries. If physical 
monitoring indicates that a significant amount of dredged material has 
been deposited or transported outside of the site boundaries, then Tier 
2 analysis of benthic communities shall be performed. If Chemical 
Monitoring establishes that there is significant bioaccumulation of 
contaminants in organisms sampled from within or outside the dredged 
material footprint, then Tier 3 Biological Monitoring of the disposal 
site shall be employed. Tier 3 Biological Monitoring may replace Tier 3 
Chemical Monitoring if observed biological effects are established as 
surrogate indicators for bioaccumulation of chemical contaminants in 
sampled organisms.
    (4) Definition of significant dredged material accumulation. For 
purposes of this paragraph (l)(3)(x)(A) of this section, dredged 
material accumulation on the ocean bottom to a thickness of five 
centimeters shall be considered to be a significant amount of dredged 
material. The Regional Administrator may determine that a lesser amount 
of accumulation is significant if available evidence indicates that a 
lesser amount of off-site accumulation could endanger marine resources.
    (B) Modification, suspension or termination of site use. (1) If the 
results of site monitoring or other information indicate that any of the 
following are occurring as a result of disposal at the SF-DODS, then the 
Regional Administrator shall modify, suspend, or terminate site use 
overall, or for individual projects as appropriate:
    (i) Exceedance of Federal marine water quality criteria within the 
SF-DODS following initial mixing as defined in 40 CFR 227.29(a) or 
beyond the site boundary at any time;
    (ii) Placement or movement of significant quantities of disposed 
material outside of site boundaries near or toward significant 
biological resource areas or marine sanctuaries;
    (iii) Endangerment of the marine environment related to potentially 
significant adverse changes in the structure of the benthic community 
outside the disposal site boundary;
    (iv) Endangerment to the health, welfare, or livelihood of persons 
or to the environment related to potentially significant adverse 
bioaccumulation in organisms collected from the disposal site or areas 
adjacent to the site boundary compared to the reference site;
    (v) Endangerment to the health, welfare, or livelihood of persons 
related to potentially significant adverse impacts upon commercial or 
recreational fisheries resources near the site; or
    (vi) Endangerment to the health, welfare, or livelihood of persons 
or to the environment related to any other potentially significant 
adverse environmental impacts.
    (2) The Regional Administrator shall modify site use, rather than 
suspend or terminate site use, when site use modification will be 
sufficient to eliminate the adverse environmental impacts referred to in 
paragraphs (l)(3)(x)(B)(1) (i) or (ii) of this section or the

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endangerment to human health, welfare or livelihood to the environment 
referred to in paragraphs (l)(3)(x)(B)(1) (iii) through (vi) of this 
section. Notwithstanding the provisions of any permit or federal project 
authorization authorizing site use, the Regional Administrator shall 
order, following opportunity for public comment, any of the following 
modifications to site use that he or she deems necessary to eliminate 
the adverse environmental effect or endangerment to human health, 
welfare, or livelihood or to the environment:
    (i) Change or additional restrictions upon the permissible times, 
rates and total volume of disposal of dredged material at the SF-DODS;
    (ii) Change or additional restrictions upon the method of disposal 
or transportation of dredged materials for disposal; or
    (iii) Change or additional limitations upon the type or quality of 
dredged materials according to chemical, physical, bioassay toxicity, or 
bioaccumulation characteristics.
    (3) The Regional Administrator shall suspend site use when site use 
suspension is both necessary and sufficient to eliminate any adverse 
environmental effect or endangerment to human health, welfare, or 
livelihood or to the environment referred to in paragraph 
(l)(3)(x)(B)(1) of this section. Notwithstanding the provisions of any 
permit or federal project authorization authorizing site use, the 
Regional Administrator shall order, following opportunity for public 
comment, site use suspension until an appropriate management action is 
identified or for a time period that will eliminate the adverse 
environmental effect or endangerment to human health, welfare, or 
livelihood or to the environment.
    (4) Notwithstanding the provisions of any permit or federal project 
authorization authorizing site use, the Regional Administrator shall 
order, following opportunity for public comment, site use permanently 
terminated if this is the only means for eliminating the adverse 
environmental impacts referred to in paragraphs (l)(3)(x)(B)(1) (i) or 
(ii) of this section or the endangerment to human health, welfare or 
livelihood to the environment referred to in paragraphs (l)(3)(x)(B)(1) 
(iii) through (vi) of this section.
    (4) Channel Bar Site, San Francisco, CA (SF-8).
    (i) Location: 37[deg]44[min]55[sec]N., 122[deg]37[min]18[sec]W; 
37[deg]45[min]45[sec]N., 122[deg]34[min]24[sec]W.; 
37[deg]44[min]24[sec]N., 122[deg]37[min]06[sec]W.; 
37[deg]45[min]15[sec]N., 122[deg]34[min]12[sec]W.
    (ii) Size: 4,572x914 meters.
    (iii) Depth: Ranges from 11 to 14.3 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to material from 
required dredging operations at the entrance of the San Francisco main 
ship channel which is composed primarily of sand having grain sizes 
compatible with naturally occurring sediments at the disposal site and 
containing approximately 5 percent of particles having grain sizes finer 
than that normally attributed to very fine sand (.075 millimeters). 
Other dredged materials meeting the requirements of 40 CFR 227.13 but 
having smaller grain sizes may be dumped at this site only upon 
completion of an appropriate case-by-case evaluation of the impact of 
such material on the site which demonstrates that such impact will be 
acceptable.
    (5) Hilo, HI.
    (i) Location: (center point): Latitude--19[deg]48[min]30[sec]N.; 
Longitude--154[deg]58[min]30[sec]W.
    (ii) Size: Circular with a radius of 920 meters.
    (iii) Depth: Ranges from 330 to 340 meters.
    (iv) Primary Use: Dredged material.
    (v) Period of Use: Continuing use.
    (vi) Restriction: Disposal shall be limited to dredged material.