Secs. 501 and 307(a) of the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251
This part shall be applicable to hearings required by statute to be held in connection with the establishment of toxic pollutant effluent standards under section 307(a) of the Act.
As used in this part, the term:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(a)
(b)
(1) It shall be filed in triplicate with the hearing clerk within the time prescribed in paragraph (a) of this section;
(2) It shall state concisely and with particularity each portion of the proposed standard to which objection is taken; to the greatest extent feasible it shall state the basis for such objection;
(3) To the greatest extent feasible it shall (i) state specifically the objector's proposed modification to any such standard proposed by the Agency to which objection is taken, (ii) set forth the reasons why such modification is sought, and (iii) identify and describe the scientific or other basis for such proposed modification, including reference to any pertinent scientific data or authority in support thereof.
(c)
(d)
(e)
Whenever the Administrator publishes a proposed effluent standard, the notice thereof published in the
(a) The purpose of the proposed standard;
(b) An explanation of how the proposed standard was derived;
(c) Scientific and technical data and studies supporting the proposed standard or references thereto if the materials are published or otherwise readily available; and
(d) Such other information as may be reasonably required to set forth fully the basis of the standard.
Whenever the Administrator publishes a notice of hearing under this part, the hearing clerk shall promptly establish a docket for the hearing. The
The Chief Administrative Law Judge of the Agency may preside personally at any hearing under this part, or he may designate another Administrative Law Judge as Presiding Officer for the hearing. In the event of the unavailability of any such Administrative Law Judge, the Administrator may designate a Presiding Officer. No person who has any personal pecuniary interest in the outcome of a proceeding under this part, or who has participated in the development or enforcement of any standard or proposed standard at issue in a proceeding hereunder, shall serve as Presiding Officer in such proceeding.
The Presiding Officer shall have the duty to conduct a fair hearing within the time constraints imposed by section 307(a) of the Act. He shall take all necessary action to avoid delay and to maintain order. He shall have all powers necessary to these ends, including but not limited to the power to:
(a) Rule upon motions and requests;
(b) Change the time and place of the hearing, and adjourn the hearing from time to time or from place to place;
(c) Examine and cross-examine witnesses;
(d) Admit or exclude evidence; and
(e) Require any part or all of the evidence to be submitted in writing and by a certain date.
Prehearing conferences are encouraged for the purposes of simplification of issues, identification and scheduling of evidence and witnesses, the establishment of an orderly framework for the proceedings, the expediting of the hearing, and such other purposes of a similar nature as may be appropriate.
(a) The Presiding Officer on his own motion may, and at the request of any party made within 20 days of the proposal of standards hereunder shall, direct all parties to appear at a specified time and place for an initial hearing session in the nature of a prehearing conference. Matters taken up at the conference may include, without limitation:
(1) Consideration and simplification of any issues of law or fact;
(2) Identification, advance submission, marking for identification, consideration of any objections to admission, and admission of documentary evidence;
(3) Possible stipulations of fact;
(4) The identification of each witness expected to be called by each party, and the nature and substance of his expected testimony;
(5) Scheduling of witnesses where practicable, and limitation of the number of witnesses where appropriate in order to avoid delay or repetition;
(6) If desirable, the segregation of the hearing into separate segments for different provisions of the proposed effluent standards and the establishment of separate service lists;
(7) Encouragement of objecting parties to agree upon and designate lead counsel for objectors with common interests so as to avoid repetitious questioning of witnesses.
(b) The Presiding Officer may, following a prehearing conference, issue an order setting forth the agreements reached by the parties or representatives, the schedule of witnesses, and a statement of issues for the hearing. In addition such order may direct the parties to file and serve copies of documents or materials, file and serve lists of witnesses which may include a short summary of the expected testimony of each and, in the case of an expert witness, his curriculum vitae, and may contain such other directions as may
(a) Where the Presiding Officer has directed identification of witnesses and production of documentation evidence by a certain date, the Presiding Officer may exclude any such evidence, or refuse to allow any witness to testify, when the witness was not identified or the document was not served by the time set by the Presiding Officer. Any such direction with respect to a party's case in chief shall not preclude the use of such evidence or testimony on rebuttal or response, or upon a showing satisfactory to the Presiding Officer that good cause existed for failure to serve testimony or a document or identify a witness by the time required. The Presiding Officer may require direct testimony to be in writing under oath and served by a certain date, and may exclude testimony not so served.
(b) At the first prehearing conference, or at another time before the beginning of the taking of oral testimony to be set by the Presiding Officer, the statement of basis and purpose, together with any publications or reference materials cited therein, except where excluded by stipulation, shall be received in evidence.
(c) The Presiding Officer may exclude evidence which is immaterial, irrelevant, unduly repetitious or cumulative, or would involve undue delay, or which, if hearsay, is not of the sort upon which responsible persons are accustomed to rely.
(d) If relevant and material evidence is contained in a report or document containing immaterial or irrelevant matter, such immaterial or irrelevant matter may be excluded.
(e) Whenever written testimony or a document or object is excluded from evidence by the Presiding Officer, it shall at the request of the proponent be marked for identification. Where oral testimony is permitted by the Presiding Officer, but the Presiding Officer excludes particular oral testimony, the party offering such testimony may make a brief offer of proof.
(f) Any relevant and material documentary evidence, including but not limited to affidavits, published articles, and official documents, regardless of the availability of the affiant or author for cross-examination, may be admitted in evidence, subject to the provisions of paragraphs (a), (c), and (d) of this section. The availability or nonavailability of cross-examination shall be considered as affecting the weight to be accorded such evidence in any decision based upon the record.
(g) Official notice may be taken by the Presiding Officer or the Administrator of any matter which could be judicially noticed in the United States District Courts, and of other facts within the specialized knowledge and experience of the Agency. Opposing parties shall be given adequate opportunity to show the contrary.
(a) Following the admission in evidence of the materials described in § 104.9(b), the Agency shall have the right at the commencement of the hearing to supplement that evidence or to introduce additional relevant evidence. Thereafter the evidence of each objector shall be presented in support of its objection and any proposed modification. The Agency staff shall then be given an opportunity to rebut or respond to the objectors' presentation, including at its option the introduction of evidence which tends to support a standard or standards other than as set forth in the Agency's own initially proposed standards. In the event that evidence which tends to support such other standard or standards is offered and received in evidence, then the objectors may thereafter rebut or respond to any such new evidence.
(b) The burden of proof as to any modification of any standard proposed by the Agency shall be upon the party who advocates such modification to show that the proposed modification is justified based upon a preponderance of the evidence.
(c) Where necessary in order to prevent undue prolongation of the hearing, or to comply with time limitations set forth in the Act, the Presiding Officer may limit the number of witnesses who may testify, and the scope and extent of cross-examination.
(d) A verbatim transcript of the hearing shall be maintained and shall constitute a part of the record.
(e) If a party objects to the admission or rejection of any evidence or to any other ruling of the Presiding Officer during the hearing, he shall state briefly the grounds of such objection. With respect to any ruling on evidence, it shall not be necessary for any party to claim an exception in order to preserve any right of subsequent review.
(f) Any party may at any time withdraw his objection to a proposed effluent standard.
At the conclusion of the hearing, the Presiding Officer shall set a schedule for the submission by the parties of briefs and proposed findings of fact and conclusions. In establishing the aforesaid time schedule, the Presiding Officer shall consider the time constraints placed upon the parties and the Administrator by the statutory deadlines.
As soon as possible after the hearing, the Presiding Officer shall transmit to the hearing clerk the transcript of the testimony and exhibits introduced in the hearing. The Presiding Officer shall attach to the original transcript his certificate stating that, to the best of his knowledge and belief, the transcript is a true transcript of the testimony given at the hearing except in such particulars as he shall specify, and that the exhibits transmitted are all the exhibits as introduced at the hearing with such exceptions as he shall specify.
(a) The Presiding Officer may certify a ruling for interlocutory review by the Administrator where a party so requests and the Presiding Officer concludes that (1) the ruling from which review is sought involves an important question as to which there is substantial ground for difference of opinion, and (2) either (i) a subsequent reversal of his ruling would be likely to result in substantial delay or expense if left to the conclusion of the proceedings, or (ii) a ruling on the question by the Administrator would be of material assistance in expediting the hearing. The certificate shall be in writing and shall specify the material relevant to the ruling certified. If the Administrator determines that interlocutory review is not warranted, he may decline to consider the ruling which has been certified.
(b) Where the Presiding Officer declines to certify a ruling the party who had requested certification may apply to the Administrator for interlocutory review, or the Administrator may on his own motion direct that any matter be submitted to him for review, subject to the standards for review set forth in paragraph (a) of this section. An application for review shall be in writing and shall briefly state the grounds relied on. If the Administrator takes no action with respect to such application for interlocutory review within 15 days of its filing, such application shall be deemed to have been denied.
(c) Unless otherwise ordered by the Presiding Officer or the Administrator, the hearing shall continue pending consideration by the Administrator of any ruling or request for interlocutory review.
(d) Unless otherwise ordered by the Presiding Officer or the Administrator, briefs in response to any application for interlocutory review may be filed by any party within five days of the filing of the application for review.
(e) Failure to request or obtain interlocutory review does not waive the rights of any party to complain of a ruling following completion of the hearing. Within five days following the close of a hearing under this part, any party may apply to the Administrator for post-hearing review of any procedural ruling, or any ruling made by the Presiding Officer concerning the admission or exclusion of evidence to which timely objection was made. Within seven days following the filing of any such application any other party may file a brief in response thereto.
(f) If the Administrator on review under paragraph (e) of this section determines that evidence was improperly excluded, he may order its admission
(g) Motions shall be brief, in writing, and may be filed at any time following the publication of the proposed effluent standards, unless otherwise ordered by the Presiding Officer or the Administrator. Unless otherwise ordered or provided in these rules, responses to motions may be filed within seven days of the actual filing of the motion with the hearing clerk.
(a) As soon as practicable following the certification of the record and the filing by the parties of briefs and proposed findings of fact and conclusions under § 104.11, the Administrator, with such staff assistance as he deems necessary and appropriate, shall review the entire record and prepare and file a tentative decision based thereon. The tentative decision shall include findings of fact and conclusions, and shall be filed with the hearing clerk who shall at once transmit a copy thereof to each party who participated at the hearing, or his attorney or other representative.
(b) Upon filing of the tentative decision, the Administrator may allow a reasonable time for the parties to file with him any exceptions to the tenative decision, a brief in support of such exceptions containing appropriate references to the record, and any proposed changes in the tentative decision. Such materials shall, upon submission, become part of the record. As soon as practicable after the filing thereof the Administrator shall prepare and file a final decision, copies of which shall be transmitted to the parties or their representatives in the manner prescribed in paragraph (a) of this section.
(c) In the event that the Administrator determines that due and timely execution of his functions, including compliance with time limitations established by law, imperatively and unavoidably so requires, he may omit the preparation and filing of the tentative decision and related procedures set forth in paragraph (b) of this section, and shall instead prepare and file a final decision, copies of which shall be transmitted to the parties or their representatives in the manner prescribed in paragraph (a) of this section.
(d) Any decision rendered by the Administrator pursuant to this section shall include a statement of his findings and conclusions, and the reasons and basis therefor, and shall indicate the toxic pollutant effluent standard or standards which the Administrator is promulgating or intends to promulgate based thereon.
Upon consideration of the record, at the time of his final decision the Administrator shall determine whether the proposed effluent standard or standards should be promulgated as proposed, or whether any modification thereof is justified based upon a proponderance of the evidence adduced at the hearing, regardless of whether or not such modification was actually proposed by any objecting party. If he determines that a modification is not justified, he shall promulgate the standard or standards as proposed. If he determines that a modification is justified, he shall promulgate a standard or standards as so modified.
(a) All documents or papers required or authorized by the foregoing provisions of this part including, but not limited to, motions, applications for review, and briefs, shall be filed in duplicate with the hearing clerk, except as otherwise expressly provided in these rules. Any document or paper so required or authorized to be filed with
(b) A party may be represented in any proceeding under this part by an attorney or other authorized representative. When any document or paper is required under these rules to be served upon a party such service shall be made upon such attorney or other representative.
(c) Except where these rules or an order of the Presiding Officer require receipt of a document by a certain date, any document or paper required or authorized to be filed by this part shall be deemed to be filed when postmarked, or in the case of papers delivered other than by mail, when received by the hearing clerk.
(d) Sundays and legal holidays shall be included in computing the time allowed for the filing of any document or paper, provided, that when such time expires on a Sunday or legal holiday, such period shall be extended to include the next following business day.
Section 501(a) and (e) of the Clean Water Act (CWA), 33 U.S.C. 1361(a) and (e).
The Environmental Protection Agency's (EPA) Clean Water Act (CWA) Recognition Awards Program is authorized by CWA section 501(e). The Administrator may provide official recognition to industrial organizations and political subdivisions of States which during the preceding year demonstrated an outstanding technological achievement or an innovative process, method or device in their waste treatment and pollution abatement programs. The wastewater management programs can generally be characterized as waste treatment and/or pollution abatement programs. Individual EPA Regional Administrators (and Regional officials they may designate) also may conduct Regional CWA Recognition Awards Programs according to and consistent with the provisions of this part.
The awards are known as the National Clean Water Act Recognition Awards (hereinafter, the Awards Program).
(a) EPA will administer the Awards Program, and should establish annual guidance as necessary to administer the Awards Program. EPA will request from the various offices, and States and Tribes as appropriate, nominations for the Awards Program.
(b) Nominees must be in total compliance with all applicable water quality requirements under the CWA in order to be eligible for an award, and otherwise have a satisfactory record with respect to environmental quality.
(c) Nominees must provide written documentation as evidence to support their outstanding technological achievement or innovative process, method or device in their waste treatment and/or pollution abatement programs.
(d) EPA may issue annual guidance memoranda to administer each year's awards programs. For information on the availability of additional guidance, contact the U.S. Environmental Protection Agency, Municipal Assistance Branch, 1200 Pennsylvania Avenue, NW., Mail Code 4204-M, Washington, DC 20460. You may also visit EPA's Web site at
A municipality, city, town, borough, county, parish, district, association, government agency, or other public body, (including an intermunicipal agency of two or more of the foregoing entities) created by or pursuant to State law; a company, corporation, association, partnership, firm, university, not-for-profit organization, or wastewater treatment facility, as well as a Federal, State or Tribal government wastewater treatment facility, or U.S. military command to the extent such government and other organizations operate in an industrial capacity in the treatment of wastes or abatement of pollution may be considered for a recognition award.
EPA will publish from time to time, a notice in the
You may contact your local EPA Regional office for information on the Awards Program guidance each year, or check the Web site at
You can contact your local EPA Regional office for award submission deadline information which may vary for the award categories, or check the Web site at
You may apply to, or ask your State, Tribe or EPA Region to nominate you for an award. Only applications or nominations recommended by EPA Regions are considered for the national award. EPA personnel conduct compliance evaluations prior to presenting a national award.
Your facility or pollution abatement program must be in total compliance with all applicable water quality requirements, and otherwise have a satisfactory record with respect to environmental quality. Additionally, your facility or pollution abatement program must provide written documentation as evidence of an outstanding technological achievement or an innovative process, method or device demonstrated in the preceding year, which resulted in environmental benefits, cost savings and/or public acceptance.
After EPA receives the completed application, the application is evaluated by a review committee. After the review committee completes its evaluation of the programs that have been nominated, they make recommendations for the national awards. EPA then analyzes the results and selects the award winners.
EPA review committee members are selected by the EPA and in some cases, State or Tribal water pollution control agencies. The number of participants in a nominations review process is based on staff availability, and may be one person.
Nominees and applications are recommended by EPA regions. EPA personnel conduct compliance evaluations prior to presenting a national award. EPA selects national award winners based on demonstrated evidence of outstanding and/or innovative wastewater treatment and pollution abatement programs or projects which result in environmental benefits, cost savings and/or public acceptance. Based upon results of review committee evaluations, the Agency selects first place winners for a national award in the appropriate awards categories. A second place winner may or may not be selected. EPA may or may not select an award winner for every awards program category. Award decisions are not subject to administrative review.
EPA notifies national award winners by letter.
EPA presents national award winners with a certificate or plaque at an awards presentation ceremony as recognition for an outstanding technological achievement or an innovative process, method or device in wastewater treatment and/or pollution abatement programs. The President of the United States, the Governor of the State, or Tribal leader of the jurisdiction reservation in which the awardee is situated, the Speaker of the House of Representatives and the President pro tempore of the Senate are notified by the Administrator.
EPA announces the annual national recognition award winners through notice published in the
Sec. 507(e), Pub. L. 92-500, 86 Stat. 816 (33 U.S.C. 1251
This part shall be applicable to investigations and hearings required by section 507(e) of the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251
As used in this part, the term:
(a)
(b)
(c)
(d)
(e)
Any employee who is discharged or laid-off, threatened with discharge or lay-off, or otherwise discriminated against by any person because of the alleged results of any effluent limitation or order issued under the Act, or any representative of such employee, may submit a request for an investigation under this part to the Regional Administrator of the region in which such discrimination is alleged to have occurred.
Upon receipt of any request meeting the requirements of § 108.3, the Regional Administrator shall conduct a full investigation of the matter, in order to determine whether the request may be related to an effluent limitation or order under the Act. Following the investigation, the Regional Administrator shall notify the employee requesting the investigation (or the employee's representative) and the employer of such employee, in writing, of his preliminary findings and conclusions. The employee, the representative of such employee, or the employer may within fifteen days following receipt of the preliminary findings and conclusions of the Regional Administrator request a hearing under this part. Upon receipt of such a request, the Regional Administrator, with the concurrence of the Chief Administrative Law Judge, shall publish notice of a hearing to be held not less than 30 days following the date of such publication where he determines that there are factual issues concerning the existence of the alleged discrimination or its relationship to an effluent limitation or order under the Act. The notice shall specify a date before which any party (or representative of such party) may submit a request to appear.
Any hearing held pursuant to this part shall be of record and shall be conducted according to the requirements of 5 U.S.C. 554. The Administrative Law Judge shall conduct the hearing in an orderly and expeditious manner. By agreement of the parties, he may dismiss the hearing. The Administrative
At the conclusion of any hearing under this part, the Administrative Law Judge shall, based on the record, issue tentative findings of fact and recommendations concerning the alleged discrimination, and shall submit such tentative findings and recommendations to the Administrator. The Administrator shall adopt or modify the findings and recommendations of the Administrative Law Judge, and shall make copies of such findings and recommendations available to the complaining employee, the employer, and the public.
At his option, the Administrator may exercise any powers of an Administrative Law Judge with respect to hearings under this part.
Sec. 11(j)(1)(B), 84 Stat. 96, 33 U.S.C. 1161(j)(1)(B).
The criteria in this part are provided to assist State, local and regional agencies in the development of oil removal contingency plans for the inland navigable waters of the United States and all areas other than the high seas, coastal and contiguous zone waters, coastal and Great Lakes ports and harbors and such other areas as may be agreed upon between the Environmental Protection Agency and the Department of Transportation in accordance with section 11(j)(1)(B) of the Federal Act, Executive Order No. 11548 dated July 20, 1970 (35 FR 11677) and § 306.2 of the National Oil and Hazardous Materials Pollution Contingency Plan (35 FR 8511).
As used in these guidelines, the following terms shall have the meaning indicated below:
(a)
(b)
(c)
(d)
(e)
(f)
The guidelines in this part establish minimum criteria for the development and implementation of State, local, and regional contingency plans by State and local governments in consultation with private interests to insure timely, efficient, coordinated and effective action to minimize damage resulting from oil discharges. Such plans will be directed toward the protection of the public health or welfare of the United States, including, but not limited to, fish, shellfish, wildlife, and public and private property, shorelines, and beaches. The development and implementation of such plans shall be consistent with the National Oil and Hazardous Materials Pollution Contingency Plan. State, local and regional oil removal contingency plans shall provide for the coordination of the total response to an oil discharge so that contingency organizations established thereunder can function independently, in conjunction with each other, or in conjunction with the National and Regional Response Teams established by the National Oil and Hazardous Materials Pollution Contingency Plan.
The National Oil and Hazardous Materials Pollution Contingency Plan provides that the Federal on-scene commander shall investigate all reported spills. If such investigation shows that appropriate action is being taken by either the discharger or non-Federal entities, the Federal on-scene commander shall monitor and provide advice or assistance, as required. If appropriate containment or cleanup action is not being taken by the discharger or non-Federal entities, the Federal on-scene commander will take control of the response activity in accordance with section 11(c)(1) of the Federal Act.
Criteria for the development and implementation of State, local and regional oil removal contingency plans are:
(a) Definition of the authorities, responsibilities and duties of all persons, organizations or agencies which are to be involved or could be involved in planning or directing oil removal operations, with particular care to clearly define the authorities, responsibilities and duties of State and local governmental agencies to avoid unnecessary duplication of contingency planning activities and to minimize the potential for conflict and confusion that could be generated in an emergency situation as a result of such duplications.
(b) Establishment of notification procedures for the purpose of early detection and timely notification of an oil discharge including:
(1) The identification of critical water use areas to facilitate the reporting of and response to oil discharges.
(2) A current list of names, telephone numbers and addresses of the responsible persons and alternates on call to receive notification of an oil discharge as well as the names, telephone numbers and addresses of the organizations and agencies to be notified when an oil discharge is discovered.
(3) Provisions for access to a reliable communications system for timely notification of an oil discharge and incorporation in the communications system of the capability for interconnection with the communications systems established under related oil removal contingency plans, particularly State and National plans.
(4) An established, prearranged procedure for requesting assistance during a major disaster or when the situation exceeds the response capability of the State, local or regional authority.
(c) Provisions to assure that full resource capability is known and can be committed during an oil discharge situation including:
(1) The identification and inventory of applicable equipment, materials and supplies which are available locally and regionally.
(2) An estimate of the equipment, materials and supplies which would be required to remove the maximum oil discharge to be anticipated.
(3) Development of agreements and arrangements in advance of an oil discharge for the acquisition of equipment, materials and supplies to be used in responding to such a discharge.
(d) Provisions for well defined and specific actions to be taken after discovery and notification of an oil discharge including:
(1) Specification of an oil discharge response operating team consisting of trained, prepared and available operating personnel.
(2) Predesignation of a properly qualified oil discharge response coordinator who is charged with the responsibility and delegated commensurate authority for directing and coordinating response operations and who knows how to request assistance from Federal authorities operating under existing national and regional contingency plans.
(3) A preplanned location for an oil discharge response operations center and a reliable communications system for directing the coordinated overall response operations.
(4) Provisions for varying degrees of response effort depending on the severity of the oil discharge.
(5) Specification of the order of priority in which the various water uses are to be protected where more than one water use may be adversely affected as a result of an oil discharge and where response operations may not be adequate to protect all uses.
(e) Specific and well defined procedures to facilitate recovery of damages and enforcement measures as provided for by State and local statutes and ordinances.
For the purposes of coordination, the contingency plans of State and local governments should be developed and implemented in consultation with private interests. A copy of any oil removal contingency plan developed by State and local governments should be forwarded to the Council on Environmental Quality upon request to facilitate the coordination of these contingency plans with the National Oil and Hazardous Materials Pollution Contingency Plan.
33 U.S.C. 1321(b)(3) and (b)(4) and 1361(a); E.O. 11735, 38 FR 21243, 3 CFR Parts 1971-1975 Comp., p. 793.
Terms not defined in this section have the same meaning given by the Section 311 of the Act. As used in this part, the following terms shall have the meaning indicated below:
(a) All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters
(b) Interstate waters, including interstate wetlands;
(c) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, and wetlands, the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:
(1) That are or could be used by interstate or foreign travelers for recreational or other purposes;
(2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce;
(3) That are used or could be used for industrial purposes by industries in interstate commerce;
(d) All impoundments of waters otherwise defined as navigable waters under this section;
(e) Tributaries of waters identified in paragraphs (a) through (d) of this section, including adjacent wetlands; and
(f) Wetlands adjacent to waters identified in paragraphs (a) through (e) of this section: Provided, That waste treatment systems (other than cooling ponds meeting the criteria of this paragraph) are not waters of the United States;
The regulations of this part apply to the discharge of oil prohibited by section 311(b)(3) of the Act.
For purposes of section 311(b)(4) of the Act, discharges of oil in such quantities that the Administrator has determined may be harmful to the public health or welfare or the environment of the United States include discharges of oil that:
(a) Violate applicable water quality standards; or
(b) Cause a film or sheen upon or discoloration of the surface of the water or adjoining shorelines or cause a sludge or emulsion to be deposited beneath the surface of the water or upon adjoining shorelines.
Addition of dispersants or emulsifiers to oil to be discharged that would circumvent the provisions of this part is prohibited.
Notwithstanding any other provisions of this part, the Administrator has not determined the following discharges of oil “as may be harmful” for purposes of section 311(b) of the Act:
(a) Discharges of oil from a properly functioning vessel engine (including an
(b) Other discharges of oil permitted under MARPOL 73/78, Annex I, as provided in 33 CFR part 151, subpart A; and
(c) Any discharge of oil explicitly permitted by the Administrator in connection with research, demonstration projects, or studies relating to the prevention, control, or abatement of oil pollution.
Any person in charge of a vessel or of an onshore or offshore facility shall, as soon as he or she has knowledge of any discharge of oil from such vessel or facility in violation of section 311(b)(3) of the Act, immediately notify the National Response Center (NRC) (800-424-8802; in the Washington, DC metropolitan area, 202-426-2675). If direct reporting to the NRC is not practicable, reports may be made to the Coast Guard or EPA predesignated On-Scene Coordinator (OSC) for the geographic area where the discharge occurs. All such reports shall be promptly relayed to the NRC. If it is not possible to notify the NRC or the predesignated OCS immediately, reports may be made immediately to the nearest Coast Guard unit, provided that the person in charge of the vessel or onshore or offshore facility notifies the NRC as soon as possible. The reports shall be made in accordance with such procedures as the Secretary of Transportation may prescribe. The procedures for such notice are set forth in U.S. Coast Guard regulations, 33 CFR part 153, subpart B and in the National Oil and Hazardous Substances Pollution Contingency Plan, 40 CFR part 300, subpart E.
33 U.S.C. 1251
Nomenclature changes to part 112 appear at 65 FR 40798, June 30, 2000.
(a)(1) This part establishes procedures, methods, equipment, and other requirements to prevent the discharge of oil from non-transportation-related onshore and offshore facilities into or upon the navigable waters of the United States or adjoining shorelines, or into or upon the waters of the contiguous zone, or in connection with activities under the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974, or that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States (including resources under the Magnuson Fishery Conservation and Management Act).
(2) As used in this part, words in the singular also include the plural and words in the masculine gender also include the feminine and vice versa, as the case may require.
(b) Except as provided in paragraph (d) of this section, this part applies to any owner or operator of a non-transportation-related onshore or offshore facility engaged in drilling, producing, gathering, storing, processing, refining, transferring, distributing, using, or consuming oil and oil products, which due to its location, could reasonably be expected to discharge oil in quantities that may be harmful, as described in part 110 of this chapter, into or upon the navigable waters of the United States or adjoining shorelines, or into or upon the waters of the contiguous zone, or in connection with activities under the Outer Continental Shelf Lands Act or the Deepwater Port Act of 1974, or that may affect natural resources belonging to, appertaining to, or under the exclusive management authority of the United States (including resources under the Magnuson Fishery Conservation and Management Act) that has oil in:
(1) Any aboveground container;
(2) Any completely buried tank as defined in § 112.2;
(3) Any container that is used for standby storage, for seasonal storage, or for temporary storage, or not otherwise “permanently closed” as defined in § 112.2;
(4) Any “bunkered tank” or “partially buried tank” as defined in § 112.2, or any container in a vault, each of which is considered an aboveground storage container for purposes of this part.
(c) As provided in section 313 of the Clean Water Act (CWA), departments, agencies, and instrumentalities of the Federal government are subject to this part to the same extent as any person.
(d) Except as provided in paragraph (f) of this section, this part does not apply to:
(1) The owner or operator of any facility, equipment, or operation that is not subject to the jurisdiction of the Environmental Protection Agency (EPA) under section 311(j)(1)(C) of the CWA, as follows:
(i) Any onshore or offshore facility, that due to its location, could not reasonably be expected to have a discharge as described in paragraph (b) of this section. This determination must be based solely upon consideration of
(ii) Any equipment, or operation of a vessel or transportation-related onshore or offshore facility which is subject to the authority and control of the U.S. Department of Transportation, as defined in the Memorandum of Understanding between the Secretary of Transportation and the Administrator of EPA, dated November 24, 1971 (Appendix A of this part).
(iii) Any equipment, or operation of a vessel or onshore or offshore facility which is subject to the authority and control of the U.S. Department of Transportation or the U.S. Department of the Interior, as defined in the Memorandum of Understanding between the Secretary of Transportation, the Secretary of the Interior, and the Administrator of EPA, dated November 8, 1993 (Appendix B of this part).
(2) Any facility which, although otherwise subject to the jurisdiction of EPA, meets both of the following requirements:
(i) The completely buried storage capacity of the facility is 42,000 gallons or less of oil. For purposes of this exemption, the completely buried storage capacity of a facility excludes the capacity of a completely buried tank, as defined in § 112.2, and connected underground piping, underground ancillary equipment, and containment systems, that is currently subject to all of the technical requirements of part 280 of this chapter or all of the technical requirements of a State program approved under part 281 of this chapter. The completely buried storage capacity of a facility also excludes the capacity of a container that is “permanently closed,” as defined in § 112.2.
(ii) The aggregate aboveground storage capacity of the facility is 1,320 gallons or less of oil. For the purposes of this exemption, only containers with a capacity of 55 gallons or greater are counted. The aggregate aboveground storage capacity of a facility excludes the capacity of a container that is “permanently closed,” and the capacity of a “motive power container” as defined in § 112.2.
(3) Any offshore oil drilling, production, or workover facility that is subject to the notices and regulations of the Minerals Management Service, as specified in the Memorandum of Understanding between the Secretary of Transportation, the Secretary of the Interior, and the Administrator of EPA, dated November 8, 1993 (Appendix B of this part).
(4) Any completely buried storage tank, as defined in § 112.2, and connected underground piping, underground ancillary equipment, and containment systems, at any facility, that is subject to all of the technical requirements of part 280 of this chapter or a State program approved under part 281 of this chapter, except that such a tank must be marked on the facility diagram as provided in § 112.7(a)(3), if the facility is otherwise subject to this part.
(5) Any container with a storage capacity of less than 55 gallons of oil.
(6) Any facility or part thereof used exclusively for wastewater treatment and not used to satisfy any requirement of this part. The production, recovery, or recycling of oil is not wastewater treatment for purposes of this paragraph.
(7) Any “motive power container,” as defined in § 112.2. The transfer of fuel or other oil into a motive power container at an otherwise regulated facility is not eligible for this exemption.
(e) This part establishes requirements for the preparation and implementation of Spill Prevention, Control, and Countermeasure (SPCC) Plans. SPCC Plans are designed to complement existing laws, regulations, rules, standards, policies, and procedures pertaining to safety standards, fire prevention, and pollution prevention rules. The purpose of an SPCC Plan is to form a comprehensive Federal/State spill prevention program that minimizes the potential for discharges. The SPCC Plan must address all relevant spill prevention, control, and countermeasures necessary at the specific facility. Compliance with this
(f) Notwithstanding paragraph (d) of this section, the Regional Administrator may require that the owner or operator of any facility subject to the jurisdiction of EPA under section 311(j) of the CWA prepare and implement an SPCC Plan, or any applicable part, to carry out the purposes of the CWA.
(1) Following a preliminary determination, the Regional Administrator must provide a written notice to the owner or operator stating the reasons why he must prepare an SPCC Plan, or applicable part. The Regional Administrator must send such notice to the owner or operator by certified mail or by personal delivery. If the owner or operator is a corporation, the Regional Administrator must also mail a copy of such notice to the registered agent, if any and if known, of the corporation in the State where the facility is located.
(2) Within 30 days of receipt of such written notice, the owner or operator may provide information and data and may consult with the Agency about the need to prepare an SPCC Plan, or applicable part.
(3) Within 30 days following the time under paragraph (b)(2) of this section within which the owner or operator may provide information and data and consult with the Agency about the need to prepare an SPCC Plan, or applicable part, the Regional Administrator must make a final determination regarding whether the owner or operator is required to prepare and implement an SPCC Plan, or applicable part. The Regional Administrator must send the final determination to the owner or operator by certified mail or by personal delivery. If the owner or operator is a corporation, the Regional Administrator must also mail a copy of the final determination to the registered agent, if any and if known, of the corporation in the State where the facility is located.
(4) If the Regional Administrator makes a final determination that an SPCC Plan, or applicable part, is necessary, the owner or operator must prepare the Plan, or applicable part, within six months of that final determination and implement the Plan, or applicable part, as soon as possible, but not later than one year after the Regional Administrator has made a final determination.
(5) The owner or operator may appeal a final determination made by the Regional Administrator requiring preparation and implementation of an SPCC Plan, or applicable part, under this paragraph. The owner or operator must make the appeal to the Administrator of EPA within 30 days of receipt of the final determination under paragraph (b)(3) of this section from the Regional Administrator requiring preparation and/or implementation of an SPCC Plan, or applicable part. The owner or operator must send a complete copy of the appeal to the Regional Administrator at the time he makes the appeal to the Administrator. The appeal must contain a clear and concise statement of the issues and points of fact in the case. In the appeal, the owner or operator may also provide additional information. The additional information may be from any person. The Administrator may request additional information from the owner or operator. The Administrator must render a decision within 60 days of receiving the appeal or additional information submitted by the owner or operator and must serve the owner or operator with the decision made in the appeal in the manner described in paragraph (f)(1) of this section.
For the purposes of this part:
(1) A written contractual agreement with an oil spill removal organization that identifies and ensures the availability of the necessary personnel and equipment within appropriate response times; and/or
(2) A written certification by the owner or operator that the necessary personnel and equipment resources, owned or operated by the facility owner or operator, are available to respond to a discharge within appropriate response times; and/or
(3) Active membership in a local or regional oil spill removal organization that has identified and ensures adequate access through such membership to necessary personnel and equipment to respond to a discharge within appropriate response times in the specified geographic area; and/or
(4) Any other specific arrangement approved by the Regional Administrator upon request of the owner or operator.
(1) The term includes:
(i) All waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide;
(ii) All interstate waters, including interstate wetlands;
(iii) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation, or destruction of which could affect interstate or foreign commerce including any such waters:
(A) That are or could be used by interstate or foreign travelers for recreational or other purposes; or
(B) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or,
(C) That are or could be used for industrial purposes by industries in interstate commerce;
(iv) All impoundments of waters otherwise defined as waters of the United States under this section;
(v) Tributaries of waters identified in paragraphs (1)(i) through (iv) of this definition;
(vi) The territorial sea; and
(vii) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraph (1) of this definition.
(2) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the
(1) All liquid and sludge has been removed from each container and connecting line; and
(2) All connecting lines and piping have been disconnected from the container and blanked off, all valves (except for ventilation valves) have been closed and locked, and conspicuous signs have been posted on each container stating that it is a permanently closed container and noting the date of closure.
The owner or operator of an onshore or offshore facility subject to this section must prepare a Spill Prevention, Control, and Countermeasure Plan (hereafter “SPCC Plan” or “Plan),” in writing, and in accordance with § 112.7, and any other applicable section of this part.
(a)(1) If your onshore or offshore facility was in operation on or before August 16, 2002, you must maintain your Plan, but most amend it, if necessary to ensure compliance with this part, and implement the Plan no later than July 1, 2009. If your onshore or offshore facility becomes operational after August 16, 2002, through July 1, 2009, and could reasonably be expected to have a discharge as described in § 112.1(b), you must prepare and implement a Plan on or before July 1, 2009.
(2) If your onshore facility is a farm as defined in § 112.2, the compliance date described in paragraph (a)(1) of this section is delayed until the effective date of a rule establishing SPCC requirements specifically for farms or otherwise establishes dates by which farms must comply with the provisions of this part.
(b)(1) If you are the owner or operator of an onshore or offshore facility that becomes operational after July 1, 2009, and could reasonably be expected to have a discharge as described in § 112.1(b), you must prepare and implement a Plan before you begin operations.
(2) If your onshore facility meets the definition of farm in § 112.2, the compliance date described in paragraph (b)(1) of this section is delayed until the effective date of a rule establishing
(c) If you are the owner or operator of an onshore or offshore mobile facility, such as an onshore drilling or workover rig, barge mounted offshore drilling or workover rig, or portable fueling facility, you must prepare, implement, and maintain a facility Plan as required by this section. You must maintain your Plan, but must amend and implement it, if necessary to ensure compliance with this part, on or before July 1, 2009. If your onshore or offshore mobile facility becomes operational after July 1, 2009, and could reasonably be expected to have a discharge as described in § 112.1(b), you must prepare and implement a Plan before you begin operations. This provision does not require that you prepare a new Plan each time you move the facility to a new site. The Plan may be a general Plan. When you move the mobile or portable facility, you must locate and install it using the discharge prevention practices outlined in the Plan for the facility. The Plan is applicable only while the facility is in a fixed (non-transportation) operating mode.
(d) Except as provided in § 112.6, a licensed Professional Engineer must review and certify a Plan for it to be effective to satisfy the requirements of this part.
(1) By means of this certification the Professional Engineer attests:
(i) That he is familiar with the requirements of this part ;
(ii) That he or his agent has visited and examined the facility;
(iii) That the Plan has been prepared in accordance with good engineering practice, including consideration of applicable industry standards, and with the requirements of this part;
(iv) That procedures for required inspections and testing have been established; and
(v) That the Plan is adequate for the facility.
(2) Such certification shall in no way relieve the owner or operator of a facility of his duty to prepare and fully implement such Plan in accordance with the requirements of this part.
(e) If you are the owner or operator of a facility for which a Plan is required under this section, you must:
(1) Maintain a complete copy of the Plan at the facility if the facility is normally attended at least four hours per day, or at the nearest field office if the facility is not so attended, and
(2) Have the Plan available to the Regional Administrator for on-site review during normal working hours.
(f)
(2) If you are an owner or operator seeking an extension of time under paragraph (f)(1) of this section, you may submit a written extension request to the Regional Administrator. Your request must include:
(i) A full explanation of the cause for any such delay and the specific aspects of the Plan affected by the delay;
(ii) A full discussion of actions being taken or contemplated to minimize or mitigate such delay; and
(iii) A proposed time schedule for the implementation of any corrective actions being taken or contemplated, including interim dates for completion of tests or studies, installation and operation of any necessary equipment, or other preventive measures. In addition you may present additional oral or written statements in support of your extension request.
(3) The submission of a written extension request under paragraph (f)(2) of this section does not relieve you of your obligation to comply with the requirements of this part. The Regional Administrator may request a copy of your Plan to evaluate the extension request. When the Regional Administrator authorizes an extension of time
(g)
(1) Has an aggregate aboveground storage capacity of 10,000 gallons or less; and
(2) Has had no single discharge as described in § 112.1(b) exceeding 1,000 U.S. gallons or no two discharges as described in § 112.1(b) each exceeding 42 U.S. gallons within any twelve month period in the three years prior to the SPCC Plan self-certification date, or since becoming subject to this part if the facility has been in operation for less than three years (other than discharges as described in § 112.1(b) that are the result of natural disasters, acts of war, or terrorism).
If you are the owner or operator of a facility subject to this part, you must:
(a) Notwithstanding compliance with § 112.3, whenever your facility has discharged more than 1,000 U.S. gallons of oil in a single discharge as described in § 112.1(b), or discharged more than 42 U.S. gallons of oil in each of two discharges as described in § 112.1(b), occurring within any twelve month period, submit the following information to the Regional Administrator within 60 days from the time the facility becomes subject to this section:
(1) Name of the facility;
(2) Your name;
(3) Location of the facility;
(4) Maximum storage or handling capacity of the facility and normal daily throughput;
(5) Corrective action and countermeasures you have taken, including a description of equipment repairs and replacements;
(6) An adequate description of the facility, including maps, flow diagrams, and topographical maps, as necessary;
(7) The cause of such discharge as described in § 112.1(b), including a failure analysis of the system or subsystem in which the failure occurred;
(8) Additional preventive measures you have taken or contemplated to minimize the possibility of recurrence; and
(9) Such other information as the Regional Administrator may reasonably require pertinent to the Plan or discharge.
(b) Take no action under this section until it applies to your facility. This section does not apply until the expiration of the time permitted for the initial preparation and implementation of the Plan under § 112.3, but not including any amendments to the Plan.
(c) Send to the appropriate agency or agencies in charge of oil pollution control activities in the State in which the facility is located a complete copy of all information you provided to the Regional Administrator under paragraph (a) of this section. Upon receipt of the information such State agency or agencies may conduct a review and make recommendations to the Regional Administrator as to further procedures, methods, equipment, and other requirements necessary to prevent and to contain discharges from your facility.
(d) Amend your Plan, if after review by the Regional Administrator of the information you submit under paragraph (a) of this section, or submission of information to EPA by the State agency under paragraph (c) of this section, or after on-site review of your Plan, the Regional Administrator requires that you do so. The Regional Administrator may require you to amend your Plan if he finds that it does not meet the requirements of this part or that amendment is necessary to prevent and contain discharges from your facility.
(e) Act in accordance with this paragraph when the Regional Administrator proposes by certified mail or by personal delivery that you amend your
(f) If you appeal a decision made by the Regional Administrator requiring an amendment to an SPCC Plan, send the appeal to the EPA Administrator in writing within 30 days of receipt of the notice from the Regional Administrator requiring the amendment under paragraph (e) of this section. You must send a complete copy of the appeal to the Regional Administrator at the time you make the appeal. The appeal must contain a clear and concise statement of the issues and points of fact in the case. It may also contain additional information from you, or from any other person. The EPA Administrator may request additional information from you, or from any other person. The EPA Administrator must render a decision within 60 days of receiving the appeal and must notify you of his decision.
If you are the owner or operator of a facility subject to this part, you must:
(a) Amend the SPCC Plan for your facility in accordance with the general requirements in § 112.7, and with any specific section of this part applicable to your facility, when there is a change in the facility design, construction, operation, or maintenance that materially affects its potential for a discharge as described in § 112.1(b). Examples of changes that may require amendment of the Plan include, but are not limited to: commissioning or decommissioning containers; replacement, reconstruction, or movement of containers; reconstruction, replacement, or installation of piping systems; construction or demolition that might alter secondary containment structures; changes of product or service; or revision of standard operation or maintenance procedures at a facility. An amendment made under this section must be prepared within six months, and implemented as soon as possible, but not later than six months following preparation of the amendment.
(b) Notwithstanding compliance with paragraph (a) of this section, complete a review and evaluation of the SPCC Plan at least once every five years from the date your facility becomes subject to this part; or, if your facility was in operation on or before August 16, 2002, five years from the date your last review was required under this part. As a result of this review and evaluation, you must amend your SPCC Plan within six months of the review to include more effective prevention and control technology if the technology has been field-proven at the time of the review and will significantly reduce the likelihood of a discharge as described in § 112.1(b) from the facility. You must implement any amendment as soon as possible, but not later than six months following preparation of any amendment. You must document your completion of the review and evaluation, and must sign a statement as to whether you will amend the Plan, either at the beginning or end of the Plan or in a log or an appendix to the Plan. The following words will suffice, “I have completed review and evaluation of the SPCC Plan for (name of facility) on (date), and will (will not) amend the Plan as a result.”
(c) Except as provided in § 112.6, have a Professional Engineer certify any technical amendments to your Plan in accordance with § 112.3(d).
(a)
(1) You are familiar with the requirements of this part;
(2) You have visited and examined the facility;
(3) The Plan has been prepared in accordance with accepted and sound industry practices and standards, and with the requirements of this part;
(4) Procedures for required inspections and testing have been established;
(5) The Plan is being fully implemented;
(6) The facility meets the qualification criteria set forth under § 112.3(g);
(7) The Plan does not deviate from any requirement of this part as allowed by §§ 112.7(a)(2) and 112.7(d), except as provided in paragraph (c) of this section; and
(8) The Plan and individual(s) responsible for implementing the Plan have the full approval of management and the facility owner or operator has committed the necessary resources to fully implement the Plan.
(b)
(1) If a Professional Engineer certified a portion of your Plan in accordance with paragraph (d) of this section, and the technical amendment affects this portion of the Plan, you must have the amended provisions of your Plan certified by a Professional Engineer in accordance with § 112.6(d)(2).
(2) If the change is such that the facility no longer meets the qualifying criteria in § 112.3(g) because it exceeds 10,000 gallons in aggregate aboveground storage capacity, you must prepare a Plan in accordance with the general Plan requirements in § 112.7 and the applicable requirements in subparts B and C, including having the Plan certified by a Professional Engineer as required under § 112.3(d).
(c)
(1)
(2)
(3)
(i) Comply with the requirements under § 112.7(g); or
(ii) Describe in your Plan how you secure and control access to the oil handling, processing and storage areas; secure master flow and drain valves; prevent unauthorized access to starter controls on oil pumps; secure out-of-service and loading/unloading connections of oil pipelines; address the appropriateness of security lighting to both prevent acts of vandalism and assist in the discovery of oil discharges.
(4)
(i) Comply with the requirements under § 112.8(c)(6) or § 112.12(c)(6), as applicable; or
(ii) Test/inspect each aboveground container for integrity on a regular schedule and whenever material repairs are made. You must determine, in accordance with industry standards, the appropriate qualifications for personnel performing tests and inspections, the frequency and type of testing and inspections which take into account container size, configuration,
(d)
(1) For each alternative measure allowed under § 112.7(a)(2), the Plan must be accompanied by a written statement by a Professional Engineer that states the reason for nonconformance and describes the alternative method and how it provides equivalent environmental protection in accordance with § 112.7(a)(2). For each determination of impracticability of secondary containment pursuant to § 112.7(d), the Plan must clearly explain why secondary containment measures are not practicable at this facility and provide the alternative measures required in § 112.7(d) in lieu of secondary containment.
(2) By certifying each measure allowed under § 112.7(a)(2) and (d), the Professional Engineer attests:
(i) That he is familiar with the requirements of this part;
(ii) That he or his agent has visited and examined the facility; and
(iii) That the alternative method of environmental equivalence in accordance with § 112.7(a)(2) or the determination of impracticability and alternative measures in accordance with § 112.7(d) is consistent with good engineering practice, including consideration of applicable industry standards, and with the requirements of this part.
(3) The review and certification by the Professional Engineer under this paragraph is limited to the alternative method which achieves equivalent environmental protection pursuant to § 112.7(a)(2) or to the impracticability determination and measures in lieu of secondary containment pursuant to § 112.7(d).
If you are the owner or operator of a facility subject to this part you must prepare a Plan in accordance with good engineering practices. The Plan must have the full approval of management at a level of authority to commit the necessary resources to fully implement the Plan. You must prepare the Plan in writing. If you do not follow the sequence specified in this section for the Plan, you must prepare an equivalent Plan acceptable to the Regional Administrator that meets all of the applicable requirements listed in this part, and you must supplement it with a section cross-referencing the location of requirements listed in this part and the equivalent requirements in the other prevention plan. If the Plan calls for additional facilities or procedures, methods, or equipment not yet fully operational, you must discuss these items in separate paragraphs, and must explain separately the details of installation and operational start-up. As detailed elsewhere in this section, you must also:
(a)(1) Include a discussion of your facility's conformance with the requirements listed in this part.
(2) Comply with all applicable requirements listed in this part. Except as provided in § 112.6, your Plan may deviate from the requirements in paragraphs (g), (h)(2) and (3), and (i) of this section and the requirements in subparts B and C of this part, except the secondary containment requirements in paragraphs (c) and (h)(1) of this section, and §§ 112.8(c)(2), 112.8(c)(11),
(3) Describe in your Plan the physical layout of the facility and include a facility diagram, which must mark the location and contents of each container. The facility diagram must include completely buried tanks that are otherwise exempted from the requirements of this part under § 112.1(d)(4). The facility diagram must also include all transfer stations and connecting pipes. You must also address in your Plan:
(i) The type of oil in each container and its storage capacity;
(ii) Discharge prevention measures including procedures for routine handling of products (loading, unloading, and facility transfers, etc.);
(iii) Discharge or drainage controls such as secondary containment around containers and other structures, equipment, and procedures for the control of a discharge;
(iv) Countermeasures for discharge discovery, response, and cleanup (both the facility's capability and those that might be required of a contractor);
(v) Methods of disposal of recovered materials in accordance with applicable legal requirements; and
(vi) Contact list and phone numbers for the facility response coordinator, National Response Center, cleanup contractors with whom you have an agreement for response, and all appropriate Federal, State, and local agencies who must be contacted in case of a discharge as described in § 112.1(b).
(4) Unless you have submitted a response plan under § 112.20, provide information and procedures in your Plan to enable a person reporting a discharge as described in § 112.1(b) to relate information on the exact address or location and phone number of the facility; the date and time of the discharge, the type of material discharged; estimates of the total quantity discharged; estimates of the quantity discharged as described in § 112.1(b); the source of the discharge; a description of all affected media; the cause of the discharge; any damages or injuries caused by the discharge; actions being used to stop, remove, and mitigate the effects of the discharge; whether an evacuation may be needed; and, the names of individuals and/or organizations who have also been contacted.
(5) Unless you have submitted a response plan under § 112.20, organize portions of the Plan describing procedures you will use when a discharge occurs in a way that will make them readily usable in an emergency, and include appropriate supporting material as appendices.
(b) Where experience indicates a reasonable potential for equipment failure (such as loading or unloading equipment, tank overflow, rupture, or leakage, or any other equipment known to be a source of a discharge), include in your Plan a prediction of the direction, rate of flow, and total quantity of oil which could be discharged from the facility as a result of each type of major equipment failure.
(c) Provide appropriate containment and/or diversionary structures or equipment to prevent a discharge as described in § 112.1(b), except as provided in paragraph (k) of this section for qualified oil-filled operational equipment. The entire containment system, including walls and floor, must be capable of containing oil and must be constructed so that any discharge from a primary containment system, such as a tank or pipe, will not escape the containment system before cleanup
(1) For onshore facilities:
(i) Dikes, berms, or retaining walls sufficiently impervious to contain oil;
(ii) Curbing;
(iii) Culverting, gutters, or other drainage systems;
(iv) Weirs, booms, or other barriers;
(v) Spill diversion ponds;
(vi) Retention ponds; or
(vii) Sorbent materials.
(2) For offshore facilities:
(i) Curbing or drip pans; or
(ii) Sumps and collection systems.
(d) Provided your Plan is certified by a licensed Professional Engineer under § 112.3(d), or, in the case of a qualified facility that meets the criteria in § 112.3(g), the relevant sections of your Plan are certified by a licensed Professional Engineer under § 112.6(d), if you determine that the installation of any of the structures or pieces of equipment listed in paragraphs (c) and (h)(1) of this section, and §§ 112.8(c)(2), 112.8(c)(11), 112.9(c)(2), 112.10(c), 112.12(c)(2), and 112.12(c)(11) to prevent a discharge as described in § 112.1(b) from any onshore or offshore facility is not practicable, you must clearly explain in your Plan why such measures are not practicable; for bulk storage containers, conduct both periodic integrity testing of the containers and periodic integrity and leak testing of the valves and piping; and, unless you have submitted a response plan under § 112.20, provide in your Plan the following:
(1) An oil spill contingency plan following the provisions of part 109 of this chapter.
(2) A written commitment of manpower, equipment, and materials required to expeditiously control and remove any quantity of oil discharged that may be harmful.
(e)
(f)
(2) Designate a person at each applicable facility who is accountable for discharge prevention and who reports to facility management.
(3) Schedule and conduct discharge prevention briefings for your oil-handling personnel at least once a year to assure adequate understanding of the SPCC Plan for that facility. Such briefings must highlight and describe known discharges as described in § 112.1(b) or failures, malfunctioning components, and any recently developed precautionary measures.
(g)
(2) Ensure that the master flow and drain valves and any other valves permitting direct outward flow of the container's contents to the surface have adequate security measures so that they remain in the closed position when in non-operating or non-standby status.
(3) Lock the starter control on each oil pump in the “off” position and locate it at a site accessible only to authorized personnel when the pump is in a non-operating or non-standby status.
(4) Securely cap or blank-flange the loading/unloading connections of oil pipelines or facility piping when not in service or when in standby service for an extended time. This security practice also applies to piping that is emptied of liquid content either by draining or by inert gas pressure.
(5) Provide facility lighting commensurate with the type and location of the facility that will assist in the:
(i) Discovery of discharges occurring during hours of darkness, both by operating personnel, if present, and by non-operating personnel (the general public, local police, etc.); and
(ii) Prevention of discharges occurring through acts of vandalism.
(h)
(2) Provide an interlocked warning light or physical barrier system, warning signs, wheel chocks, or vehicle break interlock system in loading/unloading areas to prevent vehicles from departing before complete disconnection of flexible or fixed oil transfer lines.
(3) Prior to filling and departure of any tank car or tank truck, closely inspect for discharges the lowermost drain and all outlets of such vehicles, and if necessary, ensure that they are tightened, adjusted, or replaced to prevent liquid discharge while in transit.
(i) If a field-constructed aboveground container undergoes a repair, alteration, reconstruction, or a change in service that might affect the risk of a discharge or failure due to brittle fracture or other catastrophe, or has discharged oil or failed due to brittle fracture failure or other catastrophe, evaluate the container for risk of discharge or failure due to brittle fracture or other catastrophe, and as necessary, take appropriate action.
(j) In addition to the minimal prevention standards listed under this section, include in your Plan a complete discussion of conformance with the applicable requirements and other effective discharge prevention and containment procedures listed in this part or any applicable more stringent State rules, regulations, and guidelines.
(k)
(1)
(2)
(i) Establish and document the facility procedures for inspections or a monitoring program to detect equipment failure and/or a discharge; and
(ii) Unless you have submitted a response plan under § 112.20, provide in your Plan the following:
(A) An oil spill contingency plan following the provisions of part 109 of this chapter.
(B) A written commitment of manpower, equipment, and materials required to expeditiously control and remove any quantity of oil discharged that may be harmful.
If you are the owner or operator of an onshore facility (excluding a production facility), you must:
(a) Meet the general requirements for the Plan listed under § 112.7, and the specific discharge prevention and containment procedures listed in this section.
(b)
(2) Use valves of manual, open-and-closed design, for the drainage of diked areas. You may not use flapper-type drain valves to drain diked areas. If your facility drainage drains directly into a watercourse and not into an on-site wastewater treatment plant, you must inspect and may drain uncontaminated retained stormwater, as provided in paragraphs (c)(3)(ii), (iii), and (iv) of this section.
(3) Design facility drainage systems from undiked areas with a potential for a discharge (such as where piping is located outside containment walls or where tank truck discharges may occur outside the loading area) to flow into ponds, lagoons, or catchment basins designed to retain oil or return it to the facility. You must not locate catchment basins in areas subject to periodic flooding.
(4) If facility drainage is not engineered as in paragraph (b)(3) of this section, equip the final discharge of all ditches inside the facility with a diversion system that would, in the event of an uncontrolled discharge, retain oil in the facility.
(5) Where drainage waters are treated in more than one treatment unit and such treatment is continuous, and pump transfer is needed, provide two “lift” pumps and permanently install at least one of the pumps. Whatever techniques you use, you must engineer facility drainage systems to prevent a discharge as described in § 112.1(b) in case there is an equipment failure or human error at the facility.
(c)
(2) Construct all bulk storage tank installations (except mobile refuelers) so that you provide a secondary means of containment for the entire capacity of the largest single container and sufficient freeboard to contain precipitation. You must ensure that diked areas are sufficiently impervious to contain discharged oil. Dikes, containment curbs, and pits are commonly employed for this purpose. You may also use an alternative system consisting of a drainage trench enclosure that must be arranged so that any discharge will terminate and be safely confined in a facility catchment basin or holding pond.
(3) Not allow drainage of uncontaminated rainwater from the diked area into a storm drain or discharge of an effluent into an open watercourse, lake, or pond, bypassing the facility treatment system unless you:
(i) Normally keep the bypass valve sealed closed.
(ii) Inspect the retained rainwater to ensure that its presence will not cause a discharge as described in § 112.1(b).
(iii) Open the bypass valve and reseal it following drainage under responsible supervision; and
(iv) Keep adequate records of such events, for example, any records required under permits issued in accordance with §§ 122.41(j)(2) and 122.41(m)(3) of this chapter.
(4) Protect any completely buried metallic storage tank installed on or after January 10, 1974 from corrosion by coatings or cathodic protection compatible with local soil conditions. You must regularly leak test such completely buried metallic storage tanks.
(5) Not use partially buried or bunkered metallic tanks for the storage of oil, unless you protect the buried section of the tank from corrosion. You must protect partially buried and bunkered tanks from corrosion by coatings or cathodic protection compatible with local soil conditions.
(6) Test each aboveground container for integrity on a regular schedule, and whenever you make material repairs. The frequency of and type of testing must take into account container size and design (such as floating roof, skid-mounted, elevated, or partially buried). You must combine visual inspection with another testing technique such as hydrostatic testing, radiographic testing, ultrasonic testing, acoustic emissions testing, or another system of non-destructive shell testing. You must keep comparison records and you must also inspect the container's supports and foundations. In addition, you must frequently inspect the outside of the container for signs of deterioration, discharges, or accumulation of oil inside diked areas. Records of inspections and tests kept under usual and customary business practices will suffice for purposes of this paragraph.
(7) Control leakage through defective internal heating coils by monitoring the steam return and exhaust lines for contamination from internal heating coils that discharge into an open watercourse, or pass the steam return or exhaust lines through a settling tank, skimmer, or other separation or retention system.
(8) Engineer or update each container installation in accordance with good engineering practice to avoid discharges. You must provide at least one of the following devices:
(i) High liquid level alarms with an audible or visual signal at a constantly attended operation or surveillance station. In smaller facilities an audible air vent may suffice.
(ii) High liquid level pump cutoff devices set to stop flow at a predetermined container content level.
(iii) Direct audible or code signal communication between the container gauger and the pumping station.
(iv) A fast response system for determining the liquid level of each bulk storage container such as digital computers, telepulse, or direct vision gauges. If you use this alternative, a person must be present to monitor gauges and the overall filling of bulk storage containers.
(v) You must regularly test liquid level sensing devices to ensure proper operation.
(9) Observe effluent treatment facilities frequently enough to detect possible system upsets that could cause a discharge as described in § 112.1(b).
(10) Promptly correct visible discharges which result in a loss of oil from the container, including but not limited to seams, gaskets, piping, pumps, valves, rivets, and bolts. You must promptly remove any accumulations of oil in diked areas.
(11) Position or locate mobile or portable oil storage containers to prevent a discharge as described in § 112.1(b). Except for mobile refuelers, you must furnish a secondary means of containment, such as a dike or catchment basin, sufficient to contain the capacity of the largest single compartment or container with sufficient freeboard to contain precipitation.
(d)
(2) Cap or blank-flange the terminal connection at the transfer point and mark it as to origin when piping is not in service or is in standby service for an extended time.
(3) Properly design pipe supports to minimize abrasion and corrosion and allow for expansion and contraction.
(4) Regularly inspect all aboveground valves, piping, and appurtenances. During the inspection you must assess the general condition of items, such as flange joints, expansion joints, valve glands and bodies, catch pans, pipeline supports, locking of valves, and metal surfaces. You must also conduct integrity and leak testing of buried piping at the time of installation, modification, construction, relocation, or replacement.
(5) Warn all vehicles entering the facility to be sure that no vehicle will endanger aboveground piping or other oil transfer operations.
If you are the owner or operator of an onshore production facility, you must:
(a) Meet the general requirements for the Plan listed under § 112.7, and the specific discharge prevention and containment procedures listed under this section.
(b)
(2) Inspect at regularly scheduled intervals field drainage systems (such as drainage ditches or road ditches), and oil traps, sumps, or skimmers, for an accumulation of oil that may have resulted from any small discharge. You must promptly remove any accumulations of oil.
(c)
(2) Provide all tank battery, separation, and treating facility installations with a secondary means of containment for the entire capacity of the largest single container and sufficient freeboard to contain precipitation. You must safely confine drainage from undiked areas in a catchment basin or holding pond.
(3) Periodically and upon a regular schedule visually inspect each container of oil for deterioration and maintenance needs, including the foundation and support of each container that is on or above the surface of the ground.
(4) Engineer or update new and old tank battery installations in accordance with good engineering practice to prevent discharges. You must provide at least one of the following:
(i) Container capacity adequate to assure that a container will not overfill if a pumper/gauger is delayed in making regularly scheduled rounds.
(ii) Overflow equalizing lines between containers so that a full container can overflow to an adjacent container.
(iii) Vacuum protection adequate to prevent container collapse during a pipeline run or other transfer of oil from the container.
(iv) High level sensors to generate and transmit an alarm signal to the computer where the facility is subject to a computer production control system.
(d)
(2) Inspect saltwater (oil field brine) disposal facilities often, particularly following a sudden change in atmospheric temperature, to detect possible system upsets capable of causing a discharge.
(3) Have a program of flowline maintenance to prevent discharges from each flowline.
If you are the owner or operator of an onshore oil drilling and workover facility, you must:
(a) Meet the general requirements listed under § 112.7, and also meet the specific discharge prevention and containment procedures listed under this section.
(b) Position or locate mobile drilling or workover equipment so as to prevent a discharge as described in § 112.1(b).
(c) Provide catchment basins or diversion structures to intercept and contain discharges of fuel, crude oil, or oily drilling fluids.
(d) Install a blowout prevention (BOP) assembly and well control system before drilling below any casing string or during workover operations. The BOP assembly and well control system must be capable of controlling any well-head pressure that may be encountered while that BOP assembly and well control system are on the well.
If you are the owner or operator of an offshore oil drilling, production, or workover facility, you must:
(a) Meet the general requirements listed under § 112.7, and also meet the specific discharge prevention and containment procedures listed under this section.
(b) Use oil drainage collection equipment to prevent and control small oil discharges around pumps, glands, valves, flanges, expansion joints, hoses, drain lines, separators, treaters, tanks, and associated equipment. You must control and direct facility drains toward a central collection sump to prevent the facility from having a discharge as described in § 112.1(b). Where drains and sumps are not practicable, you must remove oil contained in collection equipment as often as necessary to prevent overflow.
(c) For facilities employing a sump system, provide adequately sized sump and drains and make available a spare pump to remove liquid from the sump and assure that oil does not escape. You must employ a regularly scheduled preventive maintenance inspection and testing program to assure reliable operation of the liquid removal system and pump start-up device. Redundant automatic sump pumps and control devices may be required on some installations.
(d) At facilities with areas where separators and treaters are equipped with dump valves which predominantly fail in the closed position and where pollution risk is high, specially equip the facility to prevent the discharge of oil. You must prevent the discharge of oil by:
(1) Extending the flare line to a diked area if the separator is near shore;
(2) Equipping the separator with a high liquid level sensor that will automatically shut in wells producing to the separator; or
(3) Installing parallel redundant dump valves.
(e) Equip atmospheric storage or surge containers with high liquid level sensing devices that activate an alarm or control the flow, or otherwise prevent discharges.
(f) Equip pressure containers with high and low pressure sensing devices that activate an alarm or control the flow.
(g) Equip containers with suitable corrosion protection.
(h) Prepare and maintain at the facility a written procedure within the Plan for inspecting and testing pollution prevention equipment and systems.
(i) Conduct testing and inspection of the pollution prevention equipment and systems at the facility on a scheduled periodic basis, commensurate with the complexity, conditions, and circumstances of the facility and any other appropriate regulations. You
(j) Describe in detailed records surface and subsurface well shut-in valves and devices in use at the facility for each well sufficiently to determine their method of activation or control, such as pressure differential, change in fluid or flow conditions, combination of pressure and flow, manual or remote control mechanisms.
(k) Install a BOP assembly and well control system during workover operations and before drilling below any casing string. The BOP assembly and well control system must be capable of controlling any well-head pressure that may be encountered while the BOP assembly and well control system are on the well.
(l) Equip all manifolds (headers) with check valves on individual flowlines.
(m) Equip the flowline with a high pressure sensing device and shut-in valve at the wellhead if the shut-in well pressure is greater than the working pressure of the flowline and manifold valves up to and including the header valves. Alternatively you may provide a pressure relief system for flowlines.
(n) Protect all piping appurtenant to the facility from corrosion, such as with protective coatings or cathodic protection.
(o) Adequately protect sub-marine piping appurtenant to the facility against environmental stresses and other activities such as fishing operations.
(p) Maintain sub-marine piping appurtenant to the facility in good operating condition at all times. You must periodically and according to a schedule inspect or test such piping for failures. You must document and keep a record of such inspections or tests at the facility.
If you are the owner or operator of an onshore facility (excluding a production facility), you must:
(a) Meet the general requirements for the Plan listed under § 112.7, and the specific discharge prevention and containment procedures listed in this section.
(b)
(2) Use valves of manual, open-and-closed design, for the drainage of diked areas. You may not use flapper-type drain valves to drain diked areas. If your facility drainage drains directly into a watercourse and not into an on-site wastewater treatment plant, you must inspect and may drain uncontaminated retained stormwater, subject to the requirements of paragraphs (c)(3)(ii), (iii), and (iv) of this section.
(3) Design facility drainage systems from undiked areas with a potential for a discharge (such as where piping is located outside containment walls or where tank truck discharges may occur outside the loading area) to flow into ponds, lagoons, or catchment basins designed to retain oil or return it to the facility. You must not locate catchment basins in areas subject to periodic flooding.
(4) If facility drainage is not engineered as in paragraph (b)(3) of this section, equip the final discharge of all ditches inside the facility with a diversion system that would, in the event of an uncontrolled discharge, retain oil in the facility.
(5) Where drainage waters are treated in more than one treatment unit and such treatment is continuous, and pump transfer is needed, provide two “lift” pumps and permanently install at least one of the pumps. Whatever techniques you use, you must engineer facility drainage systems to prevent a discharge as described in § 112.1(b) in case there is an equipment failure or human error at the facility.
(c)
(2) Construct all bulk storage tank installations (except mobile refuelers) so that you provide a secondary means of containment for the entire capacity of the largest single container and sufficient freeboard to contain precipitation. You must ensure that diked areas are sufficiently impervious to contain discharged oil. Dikes, containment curbs, and pits are commonly employed for this purpose. You may also use an alternative system consisting of a drainage trench enclosure that must be arranged so that any discharge will terminate and be safely confined in a facility catchment basin or holding pond.
(3) Not allow drainage of uncontaminated rainwater from the diked area into a storm drain or discharge of an effluent into an open watercourse, lake, or pond, bypassing the facility treatment system unless you:
(i) Normally keep the bypass valve sealed closed.
(ii) Inspect the retained rainwater to ensure that its presence will not cause a discharge as described in § 112.1(b).
(iii) Open the bypass valve and reseal it following drainage under responsible supervision; and
(iv) Keep adequate records of such events, for example, any records required under permits issued in accordance with §§ 122.41(j)(2) and 122.41(m)(3) of this chapter.
(4) Protect any completely buried metallic storage tank installed on or after January 10, 1974 from corrosion by coatings or cathodic protection compatible with local soil conditions. You must regularly leak test such completely buried metallic storage tanks.
(5) Not use partially buried or bunkered metallic tanks for the storage of oil, unless you protect the buried section of the tank from corrosion. You must protect partially buried and bunkered tanks from corrosion by coatings or cathodic protection compatible with local soil conditions.
(6) Test each aboveground container for integrity on a regular schedule, and whenever you make material repairs. The frequency of and type of testing must take into account container size and design (such as floating roof, skid-mounted, elevated, or partially buried). You must combine visual inspection with another testing technique such as hydrostatic testing, radiographic testing, ultrasonic testing, acoustic emissions testing, or another system of non-destructive shell testing. You must keep comparison records and you must also inspect the container's supports and foundations. In addition, you must frequently inspect the outside of the container for signs of deterioration, discharges, or accumulation of oil inside diked areas. Records of inspections and tests kept under usual and customary business practices will suffice for purposes of this paragraph.
(7) Control leakage through defective internal heating coils by monitoring the steam return and exhaust lines for contamination from internal heating coils that discharge into an open watercourse, or pass the steam return or exhaust lines through a settling tank, skimmer, or other separation or retention system.
(8) Engineer or update each container installation in accordance with good engineering practice to avoid discharges. You must provide at least one of the following devices:
(i) High liquid level alarms with an audible or visual signal at a constantly
(ii) High liquid level pump cutoff devices set to stop flow at a predetermined container content level.
(iii) Direct audible or code signal communication between the container gauger and the pumping station.
(iv) A fast response system for determining the liquid level of each bulk storage container such as digital computers, telepulse, or direct vision gauges. If you use this alternative, a person must be present to monitor gauges and the overall filling of bulk storage containers.
(v) You must regularly test liquid level sensing devices to ensure proper operation.
(9) Observe effluent treatment facilities frequently enough to detect possible system upsets that could cause a discharge as described in § 112.1(b).
(10) Promptly correct visible discharges which result in a loss of oil from the container, including but not limited to seams, gaskets, piping, pumps, valves, rivets, and bolts. You must promptly remove any accumulations of oil in diked areas.
(11) Position or locate mobile or portable oil storage containers to prevent a discharge as described in § 112.1(b). Except for mobile refuelers, you must furnish a secondary means of containment, such as a dike or catchment basin, sufficient to contain the capacity of the largest single compartment or container with sufficient freeboard to contain precipitation.
(d)
(2) Cap or blank-flange the terminal connection at the transfer point and mark it as to origin when piping is not in service or is in standby service for an extended time.
(3) Properly design pipe supports to minimize abrasion and corrosion and allow for expansion and contraction.
(4) Regularly inspect all aboveground valves, piping, and appurtenances. During the inspection you must assess the general condition of items, such as flange joints, expansion joints, valve glands and bodies, catch pans, pipeline supports, locking of valves, and metal surfaces. You must also conduct integrity and leak testing of buried piping at the time of installation, modification, construction, relocation, or replacement.
(5) Warn all vehicles entering the facility to be sure that no vehicle will endanger aboveground piping or other oil transfer operations.
(a) The owner or operator of any non-transportation-related onshore facility that, because of its location, could reasonably be expected to cause substantial harm to the environment by discharging oil into or on the navigable waters or adjoining shorelines shall prepare and submit a facility response plan to the Regional Administrator, according to the following provisions:
(1) For the owner or operator of a facility in operation on or before February 18, 1993 who is required to prepare and submit a response plan under 33 U.S.C. 1321(j)(5), the Oil Pollution Act of 1990 (Pub. L. 101-380, 33 U.S.C. 2701
(i) The owner or operator of an existing facility that was in operation on or before February 18, 1993 who submitted a response plan by February 18, 1993 shall revise the response plan to satisfy
(ii) The owner or operator of an existing facility in operation on or before February 18, 1993 who failed to submit a response plan by February 18, 1993 shall prepare and submit a response plan that satisfies the requirements of this section to the Regional Administrator before August 30, 1994.
(2) The owner or operator of a facility in operation on or after August 30, 1994 that satisfies the criteria in paragraph (f)(1) of this section or that is notified by the Regional Administrator pursuant to paragraph (b) of this section shall prepare and submit a facility response plan that satisfies the requirements of this section to the Regional Administrator.
(i) For a facility that commenced operations after February 18, 1993 but prior to August 30, 1994, and is required to prepare and submit a response plan based on the criteria in paragraph (f)(1) of this section, the owner or operator shall submit the response plan or updated portions of the response plan, along with a completed version of the response plan cover sheet contained in Appendix F to this part, to the Regional Administrator prior to August 30, 1994.
(ii) For a newly constructed facility that commences operation after August 30, 1994, and is required to prepare and submit a response plan based on the criteria in paragraph (f)(1) of this section, the owner or operator shall submit the response plan, along with a completed version of the response plan cover sheet contained in Appendix F to this part, to the Regional Administrator prior to the start of operations (adjustments to the response plan to reflect changes that occur at the facility during the start-up phase of operations must be submitted to the Regional Administrator after an operational trial period of 60 days).
(iii) For a facility required to prepare and submit a response plan after August 30, 1994, as a result of a planned change in design, construction, operation, or maintenance that renders the facility subject to the criteria in paragraph (f)(1) of this section, the owner or operator shall submit the response plan, along with a completed version of the response plan cover sheet contained in Appendix F to this part, to the Regional Administrator before the portion of the facility undergoing change commences operations (adjustments to the response plan to reflect changes that occur at the facility during the start-up phase of operations must be submitted to the Regional Administrator after an operational trial period of 60 days).
(iv) For a facility required to prepare and submit a response plan after August 30, 1994, as a result of an unplanned event or change in facility characteristics that renders the facility subject to the criteria in paragraph (f)(1) of this section, the owner or operator shall submit the response plan, along with a completed version of the response plan cover sheet contained in Appendix F to this part, to the Regional Administrator within six months of the unplanned event or change.
(3) In the event the owner or operator of a facility that is required to prepare and submit a response plan uses an alternative formula that is comparable to one contained in Appendix C to this part to evaluate the criterion in paragraph (f)(1)(ii)(B) or (f)(1)(ii)(C) of this section, the owner or operator shall attach documentation to the response plan cover sheet contained in Appendix F to this part that demonstrates the reliability and analytical soundness of the alternative formula.
(4)
(i)
(ii)
(iii)
(iv)
(b)(1) The Regional Administrator may at any time require the owner or operator of any non-transportation-related onshore facility to prepare and submit a facility response plan under this section after considering the factors in paragraph (f)(2) of this section. If such a determination is made, the Regional Administrator shall notify the facility owner or operator in writing and shall provide a basis for the determination. If the Regional Administrator notifies the owner or operator in writing of the requirement to prepare and submit a response plan under this section, the owner or operator of the facility shall submit the response plan to the Regional Administrator within six months of receipt of such written notification.
(2) The Regional Administrator shall review plans submitted by such facilities to determine whether the facility could, because of its location, reasonably be expected to cause significant and substantial harm to the environment by discharging oil into or on the navigable waters or adjoining shorelines.
(c) The Regional Administrator shall determine whether a facility could, because of its location, reasonably be expected to cause significant and substantial harm to the environment by discharging oil into or on the navigable waters or adjoining shorelines, based on the factors in paragraph (f)(3) of this section. If such a determination is made, the Regional Administrator shall notify the owner or operator of the facility in writing and:
(1) Promptly review the facility response plan;
(2) Require amendments to any response plan that does not meet the requirements of this section;
(3) Approve any response plan that meets the requirements of this section; and
(4) Review each response plan periodically thereafter on a schedule established by the Regional Administrator provided that the period between plan reviews does not exceed five years.
(d)(1) The owner or operator of a facility for which a response plan is required under this part shall revise and resubmit revised portions of the response plan within 60 days of each facility change that materially may affect the response to a worst case discharge, including:
(i) A change in the facility's configuration that materially alters the information included in the response plan;
(ii) A change in the type of oil handled, stored, or transferred that materially alters the required response resources;
(iii) A material change in capabilities of the oil spill removal organization(s) that provide equipment and personnel to respond to discharges of oil described in paragraph (h)(5) of this section;
(iv) A material change in the facility's spill prevention and response equipment or emergency response procedures; and
(v) Any other changes that materially affect the implementation of the response plan.
(2) Except as provided in paragraph (d)(1) of this section, amendments to personnel and telephone number lists included in the response plan and a change in the oil spill removal organization(s) that does not result in a material change in support capabilities do not require approval by the Regional Administrator. Facility owners or operators shall provide a copy of such changes to the Regional Administrator as the revisions occur.
(3) The owner or operator of a facility that submits changes to a response plan as provided in paragraph (d)(1) or (d)(2) of this section shall provide the EPA-issued facility identification number (where one has been assigned) with the changes.
(4) The Regional Administrator shall review for approval changes to a response plan submitted pursuant to paragraph (d)(1) of this section for a facility determined pursuant to paragraph (f)(3) of this section to have the potential to cause significant and substantial harm to the environment.
(e) If the owner or operator of a facility determines pursuant to paragraph (a)(2) of this section that the facility could not, because of its location, reasonably be expected to cause substantial harm to the environment by discharging oil into or on the navigable waters or adjoining shorelines, the owner or operator shall complete and maintain at the facility the certification form contained in Appendix C to this part and, in the event an alternative formula that is comparable to one contained in Appendix C to this part is used to evaluate the criterion in paragraph (f)(1)(ii)(B) or (f)(1)(ii)(C) of this section, the owner or operator shall attach documentation to the certification form that demonstrates the reliability and analytical soundness of the comparable formula and shall notify the Regional Administrator in writing that an alternative formula was used.
(f)(1) A facility could, because of its location, reasonably be expected to cause substantial harm to the environment by discharging oil into or on the navigable waters or adjoining shorelines pursuant to paragraph (a)(2) of this section, if it meets any of the following criteria applied in accordance with the flowchart contained in Attachment C-I to Appendix C to this part:
(i) The facility transfers oil over water to or from vessels and has a total oil storage capacity greater than or equal to 42,000 gallons; or
(ii) The facility's total oil storage capacity is greater than or equal to 1 million gallons, and one of the following is true:
(A) The facility does not have secondary containment for each aboveground storage area sufficiently large to contain the capacity of the largest aboveground oil storage tank within each storage area plus sufficient freeboard to allow for precipitation;
(B) The facility is located at a distance (as calculated using the appropriate formula in Appendix C to this part or a comparable formula) such that a discharge from the facility could cause injury to fish and wildlife and sensitive environments. For further description of fish and wildlife and sensitive environments, see Appendices I, II, and III of the “Guidance for Facility and Vessel Response Plans: Fish and Wildlife and Sensitive Environments” (see Appendix E to this part, section 13, for availability) and the applicable Area Contingency Plan prepared pursuant to section 311(j)(4) of the Clean Water Act;
(C) The facility is located at a distance (as calculated using the appropriate formula in Appendix C to this part or a comparable formula) such
(D) The facility has had a reportable oil discharge in an amount greater than or equal to 10,000 gallons within the last 5 years.
(2)(i) To determine whether a facility could, because of its location, reasonably be expected to cause substantial harm to the environment by discharging oil into or on the navigable waters or adjoining shorelines pursuant to paragraph (b) of this section, the Regional Administrator shall consider the following:
(A) Type of transfer operation;
(B) Oil storage capacity;
(C) Lack of secondary containment;
(D) Proximity to fish and wildlife and sensitive environments and other areas determined by the Regional Administrator to possess ecological value;
(E) Proximity to drinking water intakes;
(F) Spill history; and
(G) Other site-specific characteristics and environmental factors that the Regional Administrator determines to be relevant to protecting the environment from harm by discharges of oil into or on navigable waters or adjoining shorelines.
(ii) Any person, including a member of the public or any representative from a Federal, State, or local agency who believes that a facility subject to this section could, because of its location, reasonably be expected to cause substantial harm to the environment by discharging oil into or on the navigable waters or adjoining shorelines may petition the Regional Administrator to determine whether the facility meets the criteria in paragraph (f)(2)(i) of this section. Such petition shall include a discussion of how the factors in paragraph (f)(2)(i) of this section apply to the facility in question. The RA shall consider such petitions and respond in an appropriate amount of time.
(3) To determine whether a facility could, because of its location, reasonably be expected to cause significant and substantial harm to the environment by discharging oil into or on the navigable waters or adjoining shorelines, the Regional Administrator may consider the factors in paragraph (f)(2) of this section as well as the following:
(i) Frequency of past discharges;
(ii) Proximity to navigable waters;
(iii) Age of oil storage tanks; and
(iv) Other facility-specific and Region-specific information, including local impacts on public health.
(g)(1) All facility response plans shall be consistent with the requirements of the National Oil and Hazardous Substance Pollution Contingency Plan (40 CFR part 300) and applicable Area Contingency Plans prepared pursuant to section 311(j)(4) of the Clean Water Act. The facility response plan should be coordinated with the local emergency response plan developed by the local emergency planning committee under section 303 of Title III of the Superfund Amendments and Reauthorization Act of 1986 (42 U.S.C. 11001 et seq.). Upon request, the owner or operator should provide a copy of the facility response plan to the local emergency planning committee or State emergency response commission.
(2) The owner or operator shall review relevant portions of the National Oil and Hazardous Substances Pollution Contingency Plan and applicable Area Contingency Plan annually and, if necessary, revise the facility response plan to ensure consistency with these plans.
(3) The owner or operator shall review and update the facility response plan periodically to reflect changes at the facility.
(h) A response plan shall follow the format of the model facility-specific response plan included in Appendix F to this part, unless you have prepared an equivalent response plan acceptable to the Regional Administrator to meet State or other Federal requirements. A response plan that does not follow the specified format in Appendix F to this part shall have an emergency response action plan as specified in paragraphs (h)(1) of this section and be supplemented with a cross-reference section to identify the location of the elements listed in paragraphs (h)(2) through (h)(10) of this section. To meet the requirements of this part, a response plan shall address the following elements, as further described in Appendix F to this part:
(1)
(i) The identity and telephone number of a qualified individual having full authority, including contracting authority, to implement removal actions;
(ii) The identity of individuals or organizations to be contacted in the event of a discharge so that immediate communications between the qualified individual identified in paragraph (h)(1) of this section and the appropriate Federal officials and the persons providing response personnel and equipment can be ensured;
(iii) A description of information to pass to response personnel in the event of a reportable discharge;
(iv) A description of the facility's response equipment and its location;
(v) A description of response personnel capabilities, including the duties of persons at the facility during a response action and their response times and qualifications;
(vi) Plans for evacuation of the facility and a reference to community evacuation plans, as appropriate;
(vii) A description of immediate measures to secure the source of the discharge, and to provide adequate containment and drainage of discharged oil; and
(viii) A diagram of the facility.
(2)
(3)
(i) The identity of private personnel and equipment necessary to remove to the maximum extent practicable a worst case discharge and other discharges of oil described in paragraph (h)(5) of this section, and to mitigate or prevent a substantial threat of a worst case discharge (To identify response resources to meet the facility response plan requirements of this section, owners or operators shall follow Appendix E to this part or, where not appropriate, shall clearly demonstrate in the response plan why use of Appendix E of this part is not appropriate at the facility and make comparable arrangements for response resources);
(ii) Evidence of contracts or other approved means for ensuring the availability of such personnel and equipment;
(iii) The identity and the telephone number of individuals or organizations to be contacted in the event of a discharge so that immediate communications between the qualified individual identified in paragraph (h)(1) of this section and the appropriate Federal official and the persons providing response personnel and equipment can be ensured;
(iv) A description of information to pass to response personnel in the event of a reportable discharge;
(v) A description of response personnel capabilities, including the duties of persons at the facility during a response action and their response times and qualifications;
(vi) A description of the facility's response equipment, the location of the equipment, and equipment testing;
(vii) Plans for evacuation of the facility and a reference to community evacuation plans, as appropriate;
(viii) A diagram of evacuation routes; and
(ix) A description of the duties of the qualified individual identified in paragraph (h)(1) of this section, that include:
(A) Activate internal alarms and hazard communication systems to notify all facility personnel;
(B) Notify all response personnel, as needed;
(C) Identify the character, exact source, amount, and extent of the release, as well as the other items needed for notification;
(D) Notify and provide necessary information to the appropriate Federal, State, and local authorities with designated response roles, including the National Response Center, State Emergency Response Commission, and Local Emergency Planning Committee;
(E) Assess the interaction of the discharged substance with water and/or other substances stored at the facility and notify response personnel at the scene of that assessment;
(F) Assess the possible hazards to human health and the environment due to the release. This assessment must consider both the direct and indirect effects of the release (i.e., the effects of any toxic, irritating, or asphyxiating gases that may be generated, or the effects of any hazardous surface water runoffs from water or chemical agents used to control fire and heat-induced explosion);
(G) Assess and implement prompt removal actions to contain and remove the substance released;
(H) Coordinate rescue and response actions as previously arranged with all response personnel;
(I) Use authority to immediately access company funding to initiate cleanup activities; and
(J) Direct cleanup activities until properly relieved of this responsibility.
(4)
(5)
(i) A worst case discharge, as calculated using the appropriate worksheet in Appendix D to this part. In cases where the Regional Administrator determines that the worst case discharge volume calculated by the facility is not appropriate, the Regional Administrator may specify the worst case discharge amount to be used for response planning at the facility. For complexes, the worst case planning quantity shall be the larger of the amounts calculated for each component of the facility;
(ii) A discharge of 2,100 gallons or less, provided that this amount is less than the worst case discharge amount. For complexes, this planning quantity shall be the larger of the amounts calculated for each component of the facility; and
(iii) A discharge greater than 2,100 gallons and less than or equal to 36,000 gallons or 10 percent of the capacity of the largest tank at the facility, whichever is less, provided that this amount is less than the worst case discharge amount. For complexes, this planning quantity shall be the larger of the amounts calculated for each component of the facility.
(6)
(7)
(i) Response actions to be carried out by facility personnel or contracted personnel under the response plan to ensure the safety of the facility and to mitigate or prevent discharges described in paragraph (h)(5) of this section or the substantial threat of such discharges;
(ii) A description of the equipment to be used for each scenario;
(iii) Plans to dispose of contaminated cleanup materials; and
(iv) Measures to provide adequate containment and drainage of discharged oil.
(8)
(i) A checklist and record of inspections for tanks, secondary containment, and response equipment;
(ii) A description of the drill/exercise program to be carried out under the response plan as described in § 112.21;
(iii) A description of the training program to be carried out under the response plan as described in § 112.21; and
(iv) Logs of discharge prevention meetings, training sessions, and drills/
(9)
(10)
(11)
(i)(1) In the event the owner or operator of a facility does not agree with the Regional Administrator's determination that the facility could, because of its location, reasonably be expected to cause substantial harm or significant and substantial harm to the environment by discharging oil into or on the navigable waters or adjoining shorelines, or that amendments to the facility response plan are necessary prior to approval, such as changes to the worst case discharge planning volume, the owner or operator may submit a request for reconsideration to the Regional Administrator and provide additional information and data in writing to support the request. The request and accompanying information must be submitted to the Regional Administrator within 60 days of receipt of notice of the Regional Administrator's original decision. The Regional Administrator shall consider the request and render a decision as rapidly as practicable.
(2) In the event the owner or operator of a facility believes a change in the facility's classification status is warranted because of an unplanned event or change in the facility's characteristics (i.e., substantial harm or significant and substantial harm), the owner or operator may submit a request for reconsideration to the Regional Administrator and provide additional information and data in writing to support the request. The Regional Administrator shall consider the request and render a decision as rapidly as practicable.
(3) After a request for reconsideration under paragraph (i)(1) or (i)(2) of this section has been denied by the Regional Administrator, an owner or operator may appeal a determination made by the Regional Administrator. The appeal shall be made to the EPA Administrator and shall be made in writing within 60 days of receipt of the decision from the Regional Administrator that the request for reconsideration was denied. A complete copy of the appeal must be sent to the Regional Administrator at the time the appeal is made. The appeal shall contain a clear and concise statement of the issues and points of fact in the case. It also may contain additional information from the owner or operator, or from any other person. The EPA Administrator may request additional information from the owner or operator, or from any other person. The EPA Administrator shall render a decision as rapidly as practicable and shall notify the owner or operator of the decision.
(a) The owner or operator of any facility required to prepare a facility response plan under § 112.20 shall develop and implement a facility response training program and a drill/exercise program that satisfy the requirements of this section. The owner or operator shall describe the programs in the response plan as provided in § 112.20(h)(8).
(b) The facility owner or operator shall develop a facility response training program to train those personnel involved in oil spill response activities. It is recommended that the training program be based on the USCG's Training Elements for Oil Spill Response, as applicable to facility operations. An alternative program can also be acceptable subject to approval by the Regional Administrator.
(1) The owner or operator shall be responsible for the proper instruction of facility personnel in the procedures to respond to discharges of oil and in applicable oil spill response laws, rules, and regulations.
(2) Training shall be functional in nature according to job tasks for both supervisory and non-supervisory operational personnel.
(3) Trainers shall develop specific lesson plans on subject areas relevant to
(c) The facility owner or operator shall develop a program of facility response drills/exercises, including evaluation procedures. A program that follows the National Preparedness for Response Exercise Program (PREP) (see Appendix E to this part, section 13, for availability) will be deemed satisfactory for purposes of this section. An alternative program can also be acceptable subject to approval by the Regional Administrator.
The Environmental Protection Agency and the Department of Transportation agree that for the purposes of Executive Order 11548, the term:
(1)
(A) Fixed onshore and offshore oil well drilling facilities including all equipment and appurtenances related thereto used in drilling operations for exploratory or development wells, but excluding any terminal facility, unit or process integrally associated with the handling or transferring of oil in bulk to or from a vessel.
(B) Mobile onshore and offshore oil well drilling platforms, barges, trucks, or other mobile facilities including all equipment and appurtenances related thereto when such mobile facilities are fixed in position for the purpose of drilling operations for exploratory or development wells, but excluding any terminal facility, unit or process integrally associated with the handling or transferring of oil in bulk to or from a vessel.
(C) Fixed onshore and offshore oil production structures, platforms, derricks, and rigs including all equipment and appurtenances related thereto, as well as completed wells and the wellhead separators, oil separators, and storage facilities used in the production of oil, but excluding any terminal facility, unit or process integrally associated with the handling or transferring of oil in bulk to or from a vessel.
(D) Mobile onshore and offshore oil production facilities including all equipment and appurtenances related thereto as well as completed wells and wellhead equipment, piping from wellheads to oil separators, oil separators, and storage facilities used in the production of oil when such mobile facilities are fixed in position for the purpose of oil production operations, but excluding any terminal facility, unit or process integrally associated with the handling or transferring of oil in bulk to or from a vessel.
(E) Oil refining facilities including all equipment and appurtenances related thereto as well as in-plant processing units, storage units, piping, drainage systems and waste treatment units used in the refining of oil, but excluding any terminal facility, unit or process integrally associated with the handling or transferring of oil in bulk to or from a vessel.
(F) Oil storage facilities including all equipment and appurtenances related thereto as well as fixed bulk plant storage, terminal oil storage facilities, consumer storage, pumps and drainage systems used in the storage of oil, but excluding inline or breakout storage tanks needed for the continuous operation of a pipeline system and any terminal facility, unit or process integrally associated with the handling or transferring of oil in bulk to or from a vessel.
(G) Industrial, commercial, agricultural or public facilities which use and store oil, but excluding any terminal facility, unit or process integrally associated with the handling or transferring of oil in bulk to or from a vessel.
(H) Waste treatment facilities including in-plant pipelines, effluent discharge lines, and storage tanks, but excluding waste treatment facilities located on vessels and terminal storage tanks and appurtenances for the reception of oily ballast water or tank washings from vessels and associated systems used for off-loading vessels.
(I) Loading racks, transfer hoses, loading arms and other equipment which are appurtenant to a nontransportation-related facility or terminal facility and which are used to transfer oil in bulk to or from highway vehicles or railroad cars.
(J) Highway vehicles and railroad cars which are used for the transport of oil exclusively within the confines of a nontransportation-related facility and which are not intended to transport oil in interstate or intrastate commerce.
(K) Pipeline systems which are used for the transport of oil exclusively within the confines of a nontransportation-related facility or terminal facility and which are not intended to transport oil in interstate or intrastate commerce, but excluding pipeline systems used to transfer oil in bulk to or from a vessel.
(2)
(A) Onshore and offshore terminal facilities including transfer hoses, loading arms and other equipment and appurtenances used for the purpose of handling or transferring
(B) Transfer hoses, loading arms and other equipment appurtenant to a non-transportation-related facility which is used to transfer oil in bulk to or from a vessel.
(C) Interstate and intrastate onshore and offshore pipeline systems including pumps and appurtenances related thereto as well as in-line or breakout storage tanks needed for the continuous operation of a pipeline system, and pipelines from onshore and offshore oil production facilities, but excluding onshore and offshore piping from wellheads to oil separators and pipelines which are used for the transport of oil exclusively within the confines of a nontransportation-related facility or terminal facility and which are not intended to transport oil in interstate or intrastate commerce or to transfer oil in bulk to or from a vessel.
(D) Highway vehicles and railroad cars which are used for the transport of oil in interstate or intrastate commerce and the equipment and appurtenances related thereto, and equipment used for the fueling of locomotive units, as well as the rights-of-way on which they operate. Excluded are highway vehicles and railroad cars and motive power used exclusively within the confines of a nontransportation-related facility or terminal facility and which are not intended for use in interstate or intrastate commerce.
This Memorandum of Understanding (MOU) establishes the jurisdictional responsibilities for offshore facilities, including pipelines, pursuant to section 311 (j)(1)(c), (j)(5), and (j)(6)(A) of the Clean Water Act (CWA), as amended by the Oil Pollution Act of 1990 (Public Law 101-380). The Secretary of the Department of the Interior (DOI), Secretary of the Department of Transportation (DOT), and Administrator of the Environmental Protection Agency (EPA) agree to the division of responsibilities set forth below for spill prevention and control, response planning, and equipment inspection activities pursuant to those provisions.
Executive Order (E.O.) 12777 (56 FR 54757) delegates to DOI, DOT, and EPA various responsibilities identified in section 311(j) of the CWA. Sections 2(b)(3), 2(d)(3), and 2(e)(3) of E.O. 12777 assigned to DOI spill prevention and control, contingency planning, and equipment inspection activities associated with offshore facilities. Section 311(a)(11) defines the term “offshore facility” to include facilities of any kind located in, on, or under navigable waters of the United States. By using this definition, the traditional DOI role of regulating facilities on the Outer Continental Shelf is expanded by E.O. 12777 to include inland lakes, rivers, streams, and any other inland waters.
Pursuant to section 2(i) of E.O. 12777, DOI redelegates, and EPA and DOT agree to assume, the functions vested in DOI by sections 2(b)(3), 2(d)(3), and 2(e)(3) of E.O. 12777 as set forth below. For purposes of this MOU, the term “coast line” shall be defined as in the Submerged Lands Act (43 U.S.C. 1301(c)) to mean “the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.”
1. To EPA, DOI redelegates responsibility for non-transportation-related offshore facilities located landward of the coast line.
2. To DOT, DOI redelegates responsibility for transportation-related facilities, including pipelines, located landward of the coast line. The DOT retains jurisdiction for deepwater ports and their associated seaward pipelines, as delegated by E.O. 12777.
3. The DOI retains jurisdiction over facilities, including pipelines, located seaward of the coast line, except for deepwater ports and associated seaward pipelines delegated by E.O. 12777 to DOT.
This MOU is effective on the date of the final execution by the indicated signatories.
1. The DOI, DOT, and EPA may agree in writing to exceptions to this MOU on a facility-specific basis. Affected parties will receive notification of the exceptions.
2. Nothing in this MOU is intended to replace, supersede, or modify any existing agreements between or among DOI, DOT, or EPA.
Any party to this agreement may propose modifications by submitting them in writing to the heads of the other agency/department. No modification may be adopted except with the consent of all parties. All parties shall indicate their consent to or disagreement with any proposed modification within 60 days of receipt. Upon the request of any party, representatives of all parties shall
Dated: November 8, 1993.
Dated: December 14, 1993.
Dated: February 3, 1994.
The flowchart provided in Attachment C-I to this appendix shows the decision tree with the criteria to identify whether a facility “could reasonably be expected to cause substantial harm to the environment by discharging into or on the navigable waters or adjoining shorelines.” In addition, the Regional Administrator has the discretion to identify facilities that must prepare and submit facility-specific response plans to EPA.
1.1.1
1.1.2Higher Volume Port Areas include
(1) Boston, MA;
(2) New York, NY;
(3) Delaware Bay and River to Philadelphia, PA;
(4) St. Croix, VI;
(5) Pascagoula, MS;
(6) Mississippi River from Southwest Pass, LA to Baton Rouge, LA;
(7) Louisiana Offshore Oil Port (LOOP), LA;
(8) Lake Charles, LA;
(9) Sabine-Neches River, TX;
(10) Galveston Bay and Houston Ship Channel, TX;
(11) Corpus Christi, TX;
(12) Los Angeles/Long Beach Harbor, CA;
(13) San Francisco Bay, San Pablo Bay, Carquinez Strait, and Suisun Bay to Antioch, CA;
(14) Straits of Juan de Fuca from Port Angeles, WA to and including Puget Sound, WA;
(15) Prince William Sound, AK; and
(16) Others as specified by the Regional Administrator for any EPA Region.
1.1.3
1.1.4
A facility that has the potential to cause substantial harm to the environment in the event of a discharge must prepare and submit a facility-specific response plan to EPA in accordance with Appendix F to this part. A description of the screening criteria for the substantial harm flowchart is provided below:
2.1
2.2
2.3
2.4
2.5
If the facility does not meet the substantial harm criteria listed in Attachment C-I to this appendix, the owner or operator shall complete and maintain at the facility the certification form contained in Attachment C-II to this appendix. In the event an alternative formula that is comparable to the one in this appendix is used to evaluate the substantial harm criteria, the owner or operator shall attach documentation to the certification form that demonstrates the reliability and analytical soundness of the comparable formula and shall notify the Regional Administrator in writing that an alternative formula was used.
Chow, V.T. 1959. Open Channel Hydraulics. McGraw Hill.
USCG IFR (58 FR 7353, February 5, 1993). This document is available through EPA's rulemaking docket as noted in Appendix E to this part, section 13.
1. Does the facility transfer oil over water to or from vessels and does the facility have a total oil storage capacity greater than or equal to 42,000 gallons?
Yes ___No ___
2. Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and does the facility lack secondary containment that is sufficiently large to contain the capacity of the largest aboveground oil storage tank plus sufficient freeboard to allow for precipitation within any aboveground oil storage tank area?
Yes ___No ___
3. Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and is the facility located at a distance (as calculated using the appropriate formula in Attachment C-III to this appendix or a comparable formula
Yes ___No ___
4. Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and is the facility located at a distance (as calculated using the appropriate formula in Attachment C-III to this appendix or a comparable formula
Yes ___No ___
5. Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and has the facility experienced a reportable oil discharge in an amount greater than or equal to 10,000 gallons within the last 5 years?
Yes ___No ___
I certify under penalty of law that I have personally examined and am familiar with the information submitted in this document, and that based on my inquiry of those individuals responsible for obtaining this information, I believe that the submitted information is true, accurate, and complete.
1.1The facility owner or operator must evaluate whether the facility is located at a distance such that a discharge from the facility could cause injury to fish and wildlife and sensitive environments or disrupt operations at a public drinking water intake. To quantify that distance, EPA considered oil transport mechanisms over land and on still, tidal influence, and moving navigable waters. EPA has determined that the primary concern for calculation of a planning distance is the transport of oil in navigable waters during adverse weather conditions. Therefore, two formulas have been developed to determine distances for planning purposes from the point of discharge at the facility to the potential site of impact on moving and still waters, respectively. The formula for oil transport on moving navigable water is based on the velocity of the water body and the time interval for arrival of response resources. The still water formula accounts for the spread of discharged oil over the surface of the water. The method to determine oil transport on tidal influence areas is based on the type of oil discharged and the distance down current during ebb tide and up current during flood tide to the point of maximum tidal influence.
1.2EPA's formulas were designed to be simple to use. However, facility owners or operators may calculate planning distances using more sophisticated formulas, which take into account broader scientific or engineering principles, or local conditions. Such comparable formulas may result in different planning distances than EPA's formulas. In the event that an alternative formula that is comparable to one contained in this appendix is used to evaluate the criterion in 40 CFR 112.20(f)(1)(ii)(B) or (f)(1)(ii)(C), the owner or operator shall attach documentation to the response plan cover sheet contained in Appendix F to this part that demonstrates the reliability and analytical soundness of the alternative formula and shall notify the Regional Administrator in
1.3A regulated facility may meet the criteria for the potential to cause substantial harm to the environment without having to perform a planning distance calculation. For facilities that meet the substantial harm criteria because of inadequate secondary containment or oil spill history, as listed in the flowchart in Attachment C-I to this appendix, calculation of the planning distance is unnecessary. For facilities that do not meet the substantial harm criteria for secondary containment or oil spill history as listed in the flowchart, calculation of a planning distance for proximity to fish and wildlife and sensitive environments and public drinking water intakes is required, unless it is clear without performing the calculation (e.g., the facility is located in a wetland) that these areas would be impacted.
1.4A facility owner or operator who must perform a planning distance calculation on navigable water is only required to do so for the type of navigable water conditions (i.e., moving water, still water, or tidal- influenced water) applicable to the facility. If a facility owner or operator determines that more than one type of navigable water condition applies, then the facility owner or operator is required to perform a planning distance calculation for each navigable water type to determine the greatest single distance that oil may be transported. As a result, the final planning distance for oil transport on water shall be the greatest individual distance rather than a summation of each calculated planning distance.
1.5The planning distance formula for transport on moving waterways contains three variables: the velocity of the navigable water (v), the response time interval (t), and a conversion factor (c). The velocity, v, is determined by using the Chezy-Manning equation, which, in this case, models the flood flow rate of water in open channels. The Chezy-Manning equation contains three variables which must be determined by facility owners or operators. Manning's Roughness Coefficient (for flood flow rates), n, can be determined from Table 1 of this attachment. The hydraulic radius, r, can be estimated using the average mid-channel depth from charts provided by the sources listed in Table 2 of this attachment. The average slope of the river, s, can be determined using topographic maps that can be ordered from the U.S. Geological Survey, as listed in Table 2 of this attachment.
1.6Table 3 of this attachment contains specified time intervals for estimating the arrival of response resources at the scene of a discharge. Assuming no prior planning, response resources should be able to arrive at the discharge site within 12 hours of the discovery of any oil discharge in Higher Volume Port Areas and within 24 hours in Great Lakes and all other river, canal, inland, and nearshore areas. The specified time intervals in Table 3 of Appendix C are to be used only to aid in the identification of whether a facility could cause substantial harm to the environment. Once it is determined that a plan must be developed for the facility, the owner or operator shall reference Appendix E to this part to determine appropriate resource levels and response times. The specified time intervals of this appendix include a 3-hour time period for deployment of boom and other response equipment. The Regional Administrator may identify additional areas as appropriate.
2.1The facility owner or operator must use the following formula or a comparable formula as described in § 112.20(a)(3) to calculate the planning distance for oil transport on moving navigable water:
2.2 Chezy-Manning's equation is used to determine velocity:
2.3The average slope of the river (s) can be determined from the topographic maps using the following steps:
(1) Locate the facility on the map.
(2) Find the Normal Pool Elevation at the point of discharge from the facility into the water (A).
(3) Find the Normal Pool Elevation of the public drinking water intake or fish and wildlife and sensitive environment located downstream (B) (Note: The owner or operator should use a minimum of 20 miles downstream as a cutoff to obtain the average slope if the location of a specific public drinking water intake or fish and wildlife and sensitive environment is unknown).
(4) If the Normal Pool Elevation is not available, the elevation contours can be used to find the slope. Determine elevation of the water at the point of discharge from the facility (A). Determine the elevation of the
(5) Determine the distance (in miles) between the facility and the public drinking water intake or fish and wildlife and sensitive environments (C).
(6) Use the following formula to find the slope, which will be a unitless value: Average Slope=[(A−B) (ft)/C (miles)] × [1 mile/5280 feet]
2.4If it is not feasible to determine the slope and mid-channel depth by the Chezy-Manning equation, then the river velocity can be approximated on- site. A specific length, such as 100 feet, can be marked off along the shoreline. A float can be dropped into the stream above the mark, and the time required for the float to travel the distance can be used to determine the velocity in feet per second. However, this method will not yield an average velocity for the length of the stream, but a velocity only for the specific location of measurement. In addition, the flow rate will vary depending on weather conditions such as wind and rainfall. It is recommended that facility owners or operators repeat the measurement under a variety of conditions to obtain the most accurate estimate of the surface water velocity under adverse weather conditions.
2.5The planning distance calculations for moving and still navigable waters are based on worst case discharges of persistent oils. Persistent oils are of concern because they can remain in the water for significant periods of time and can potentially exist in large quantities downstream. Owners or operators of facilities that store persistent as well as non-persistent oils may use a comparable formula. The volume of oil discharged is not included as part of the planning distance calculation for moving navigable waters. Facilities that will meet this substantial harm criterion are those with facility capacities greater than or equal to 1 million gallons. It is assumed that these facilities are capable of having an oil discharge of sufficient quantity to cause injury to fish and wildlife and sensitive environments or shut down a public drinking water intake. While owners or operators of transfer facilities that store greater than or equal to 42,000 gallons are not required to use a planning distance formula for purposes of the substantial harm criteria, they should use a planning distance calculation in the development of facility-specific response plans.
2.6
(1) Solve for v by evaluating n, r, and s for the Chezy-Manning equation:
Find the roughness coefficient, n, on Table 1 of this attachment for a regular section of a major stream with a top width greater than 100 feet. The top width of the river can be found from the topographic map.
The average mid-channel depth is found by averaging the mid-channel depth for each mile along the length of the river between the facility and the public drinking water intake or the fish or wildlife or sensitive environment (or 20 miles downstream if applicable). This value is multiplied by 0.667 to obtain the hydraulic radius. The mid-channel depth is found by obtaining values for r and s from the sources shown in Table 2 for the Monongahela River.
(2) Find t from Table 3 of this attachment. The Monongahela River's resource response time is 27 hours.
(3) Solve for planning distance, d:
3.1For bodies of water including lakes or ponds that do not have a measurable velocity, the spreading of the oil over the surface must be considered. Owners or operators of facilities located next to still water bodies may use a comparable means of calculating
3.2
(1) The surface area in square feet covered by an oil discharge on still water, A1, can be determined by the following formula,
(2) The spreading formula is based on the theoretical condition that the oil will spread uniformly in all directions forming a circle. In reality, the outfall of the discharge will direct the oil to the surface of the water where it intersects the shoreline. Although the oil will not spread uniformly in all directions, it is assumed that the discharge will spread from the shoreline into a semi-circle (this assumption does not account for winds or wave action).
(3) The area of a circle=† r
(4) To account for the assumption that oil will spread in a semi-circular shape, the area of a circle is divided by 2 and is designated as A
(5) To estimate the distance that the oil will travel, use the times required for response resources to arrive at different geographic locations as shown in Table 3 of this attachment.
(6) The total distance that the oil will travel from the point of discharge, including the distance due to spreading, is calculated as follows:
4.1The planning distance method for tidal influence navigable water is based on worst case discharges of persistent and non-persistent oils. Persistent oils are of primary concern because they can potentially cause harm over a greater distance. For persistent oils discharged into tidal waters, the planning distance is 15 miles from the facility down current during ebb tide and to the point of maximum tidal influence or 15 miles, whichever is less, during flood tide.
4.2For non-persistent oils discharged into tidal waters, the planning distance is 5 miles from the facility down current during ebb tide and to the point of maximum tidal influence or 5 miles, whichever is less, during flood tide.
4.3
(1) Facility X stores persistent oil and is located downstream from locks along a slow moving river which is affected by tides. The river velocity, v, is determined to be 0.5 feet/second from the Chezy-Manning equation used to calculate oil transport on moving navigable waters. The specified time interval, t, obtained from Table 3 of this attachment for river areas is 27 hours. Therefore, solving for the planning distance, d:
(2) However, the planning distance for maximum tidal influence down current during ebb tide is 15 miles, which is greater than the calculated 9.18 miles. Therefore, 15 miles downstream is the appropriate planning distance for this facility.
5.1Facility owners or operators must evaluate the potential for oil to be transported over land to navigable waters of the United States. The owner or operator must evaluate the likelihood that portions of a worst case discharge would reach navigable
5.2As discharged oil travels over land, it may enter a storm drain or open concrete channel intended for drainage. It is assumed that once oil reaches such an inlet, it will flow into the receiving navigable water. During a storm event, it is highly probable that the oil will either flow into the drainage structures or follow the natural contours of the land and flow into the navigable water. Expected minimum and maximum velocities are provided as examples of open concrete channel and pipe flow. The ranges listed below reflect minimum and maximum velocities used as design criteria.
5.3Assuming a length of 0.5 mile from the point of discharge through an open concrete channel or concrete storm drain to a navigable water, the travel times (distance/velocity) are:
5.4The distances that shall be considered to determine the planning distance are illustrated in Figure C-I of this attachment. The relevant distances can be described as follows:
5.5A facility owner or operator whose nearest opportunity for discharge is located within 0.5 mile of a navigable water must complete the planning distance calculation (D3) for the type of navigable water near the facility or use a comparable formula.
5.6A facility that is located at a distance greater than 0.5 mile from a navigable water must also calculate a planning distance (D3) if it is in close proximity (i.e., D1 is less than 0.5 mile and other factors are conducive to oil travel over land) to storm drains that flow to navigable waters. Factors to be considered in assessing oil transport over land to storm drains shall include the topography of the surrounding area, drainage patterns, man-made barriers (excluding secondary containment structures), and soil distribution and porosity. Storm drains or concrete drainage channels that are located in close proximity to the facility can provide a direct pathway to navigable waters, regardless of the length of the drainage pipe. If D1 is less than or equal to 0.5 mile, a discharge from the facility could pose substantial harm because the time to travel the distance from the storm drain to the navigable water (D2) is virtually instantaneous.
5.7A facility's proximity to fish and wildlife and sensitive environments not bordering a navigable water, as depicted as D4 in Figure C-I of this attachment, must also be considered, regardless of the distance from the facility to navigable waters. Factors to be considered in assessing oil transport over land to fish and wildlife and sensitive environments should include the topography of the surrounding area, drainage patterns, man-made barriers (excluding secondary containment structures), and soil distribution and porosity.
5.8If a facility is not found to pose substantial harm to fish and wildlife and sensitive environments not bordering navigable waters via oil transport on land, then supporting documentation should be maintained at the facility. However, such documentation should be submitted with the response plan if a facility is found to pose substantial harm.
1.1An owner or operator is required to complete this worksheet if the facility meets the criteria, as presented in Appendix C to this part, or it is determined by the RA that the facility could cause substantial harm to the environment. The calculation of a worst case discharge planning volume is used for emergency planning purposes, and is required in 40 CFR 112.20 for facility owners or operators who must prepare a response plan. When planning for the amount of resources and equipment necessary to respond to the worst case discharge planning volume, adverse weather conditions must be taken into consideration. An owner or operator is required to determine the facility's worst case discharge planning volume from either part A of this appendix for an onshore storage facility, or part B of this appendix for an onshore production facility. The worksheet considers the provision of adequate secondary containment at a facility.
1.2For onshore storage facilities and production facilities, permanently manifolded oil storage tanks are defined as tanks that are designed, installed, and/or operated in such a manner that the multiple tanks function as one storage unit (i.e., multiple tank volumes are equalized). In a worst case discharge scenario, a single failure could cause the discharge of the contents of more than one tank. The owner or operator must provide evidence in the response plan that tanks with common piping or piping systems are not operated as one unit. If such evidence is provided and is acceptable to the RA, the worst case discharge planning volume would be based on the capacity of the largest oil storage tank within a common secondary containment area or the largest oil storage tank within a single secondary containment area, whichever is greater. For permanently manifolded tanks that function as one oil storage unit, the worst case discharge planning volume would be based on the combined oil storage capacity of all manifolded tanks or the capacity of the largest single oil storage tank within a secondary containment area, whichever is greater. For purposes of this rule, permanently manifolded tanks that are separated by internal divisions for each tank are considered to be single tanks and individual manifolded tank volumes are not combined.
1.3For production facilities, the presence of exploratory wells, production wells, and oil storage tanks must be considered in the calculation. Part B of this appendix takes these additional factors into consideration and provides steps for their inclusion in the total worst case discharge planning volume. Onshore oil production facilities may include all wells, flowlines, separation equipment, storage facilities, gathering lines, and auxiliary non-transportation-related equipment and facilities in a single geographical oil or gas field operated by a single operator. Although a potential worst case discharge planning volume is calculated within each section of the worksheet, the final worst case amount depends on the risk parameter that results in the greatest volume.
1.4Marine transportation-related transfer facilities that contain fixed aboveground onshore structures used for bulk oil storage are jointly regulated by EPA and the U.S. Coast Guard (USCG), and are termed “complexes.” Because the USCG also requires response plans from transportation-related facilities to address a worst case discharge of oil, a separate calculation for the worst case discharge planning volume for USCG-related facilities is included in the USCG IFR (see Appendix E to this part, section 13, for availability). All complexes that are jointly regulated by EPA and the USCG must compare both calculations for worst case discharge planning volume derived by using the EPA and USCG methodologies and plan for whichever volume is greater.
Part A of this worksheet is to be completed by the owner or operator of an SPCC-regulated facility (excluding oil production facilities) if the facility meets the criteria as presented in Appendix C to this part, or if it is determined by the RA that the facility could cause substantial harm to the environment. If you are the owner or operator of a production facility, please proceed to part B of this worksheet.
For facilities containing only one aboveground oil storage tank, the worst case discharge planning volume equals the capacity of the oil storage tank. If adequate secondary containment (sufficiently large to contain the capacity of the aboveground oil storage tank plus sufficient freeboard to allow for precipitation) exists for the oil storage tank, multiply the capacity of the tank by 0.8.
(1) FINAL WORST CASE VOLUME: ____ GAL
(2) Do not proceed further.
Are
A.2.1If the answer is yes, the final worst case discharge planning volume equals the
(1) FINAL WORST CASE VOLUME: ____ GAL
(2) Do not proceed further.
A.2.2If the answer is no, calculate the total aboveground oil storage capacity of tanks without adequate secondary containment. If
A.2.3Calculate the capacity of the largest single aboveground oil storage tank within an adequate secondary containment area or the combined capacity of a group of aboveground oil storage tanks permanently manifolded together, whichever is greater, PLUS THE VOLUME FROM QUESTION A.2.2.
FINAL WORST CASE VOLUME:
Part B of this worksheet is to be completed by the owner or operator of an SPCC-regulated oil production facility if the facility meets the criteria presented in Appendix C to this part, or if it is determined by the RA that the facility could cause substantial harm. A production facility consists of all wells (producing and exploratory) and related equipment in a single geographical oil or gas field operated by a single operator.
B.1.1For facilities containing only one aboveground oil storage tank, the worst case discharge planning volume equals the capacity of the aboveground oil storage tank plus the production volume of the well with the highest output at the facility. If adequate secondary containment (sufficiently large to contain the capacity of the aboveground oil storage tank plus sufficient freeboard to allow for precipitation) exists for the storage tank, multiply the capacity of the tank by 0.8.
B.1.2For facilities with production wells producing by pumping, if the rate of the well with the highest output is known and the number of days the facility is unattended can be predicted, then the production volume is equal to the pumping rate of the well multiplied by the greatest number of days the facility is unattended.
B.1.3If the pumping rate of the well with the highest output is estimated or the maximum number of days the facility is unattended is estimated, then the production volume is determined from the pumping rate of the well multiplied by 1.5 times the greatest number of days that the facility has been or is expected to be unattended.
B.1.4Attachment D-1 to this appendix provides methods for calculating the production volume for exploratory wells and production wells producing under pressure.
(1) FINAL WORST CASE VOLUME: ____ GAL
(2) Do not proceed further.
Are
B.2.1If the answer is yes, the final worst case volume equals the total aboveground oil storage capacity without adequate secondary containment plus the production volume of the well with the highest output at the facility.
(1) For facilities with production wells producing by pumping, if the rate of the well with the highest output is known and the number of days the facility is unattended can be predicted, then the production volume is equal to the pumping rate of the well multiplied by the greatest number of days the facility is unattended.
(2) If the pumping rate of the well with the highest output is estimated or the maximum number of days the facility is unattended is estimated, then the production volume is determined from the pumping rate of the well multiplied by 1.5 times the greatest number of days that the facility has been or is expected to be unattended.
(3) Attachment D-1 to this appendix provides methods for calculating the production volumes for exploratory wells and production wells producing under pressure.
(A) FINAL WORST CASE VOLUME: ____ GAL
(B) Do not proceed further.
B.2.2If the answer is no, calculate the total aboveground oil storage capacity of tanks without adequate secondary containment. If
B.2.3Calculate the capacity of the largest single aboveground oil storage tank within an adequate secondary containment area or the combined capacity of a group of aboveground oil storage tanks permanently manifolded together, whichever is greater, plus the production volume of the well with the highest output, PLUS THE VOLUME FROM QUESTION B.2.2. Attachment D-1 provides methods for calculating the production volumes for exploratory wells and production wells producing under pressure.
(1) FINAL WORST CASE VOLUME:
(2) Do not proceed further.
The owner or operator of a production facility with exploratory wells or production wells producing under pressure shall compare the well rate of the highest output well (rate of well), in barrels per day, to the ability of response equipment and personnel to recover the volume of oil that could be discharged (rate of recovery), in barrels per day. The result of this comparison will determine the method used to calculate the production volume for the production facility. This production volume is to be used to calculate the worst case discharge planning volume in part B of this appendix.
2.1Method A
If the well rate would overwhelm the response efforts (i.e., rate of well/rate of recovery ≥1), then the production volume would be the 30-day forecasted well rate for a well 10,000 feet deep or less, or the 45-day forecasted well rate for a well deeper than 10,000 feet.
(1) For wells 10,000 feet deep or less:
(2) For wells deeper than 10,000 feet:
2.2Method B
2.2.1If the rate of recovery would be greater than the well rate (i.e., rate of well/rate of recovery <1), then the production volume would equal the sum of two terms:
2.2.2The first term represents the volume of the oil discharged from the well between the time of the blowout and the time the response resources are on scene and recovering oil (discharge volume
2.2.3The second term represents the volume of oil discharged from the well after the response resources begin operating until the discharge is stopped, adjusted for the recovery rate of the response resources (discharge volume
(1) For wells 10,000 feet deep or less:
(2) For wells deeper than 10,000 feet:
3.1A facility consists of two production wells producing under pressure, which are both less than 10,000 feet deep. The well rate of well A is 5 barrels per day, and the well rate of well B is 10 barrels per day. The facility is unattended for a maximum of 7 days. The facility operator estimates that it will take 2 days to have response equipment and personnel on scene and responding to a blowout, and that the projected rate of recovery will be 20 barrels per day.
(1) First, the facility operator determines that the highest output well is well B. The facility operator calculates the ratio of the rate of well to the rate of recovery:
(2) The first term of the equation is:
(3) The second term of the equation is:
(4) Therefore, the production volume is:
3.2If the recovery rate was 5 barrels per day, the ratio of rate of well to rate of recovery would be 2, so the facility operator would use Method A. The production volume would have been:
1.1The purpose of this appendix is to describe the procedures to identify response resources to meet the requirements of § 112.20. To identify response resources to meet the facility response plan requirements of 40 CFR 112.20(h), owners or operators shall follow this appendix or, where not appropriate, shall clearly demonstrate in the response plan why use of this appendix is not appropriate at the facility and make comparable arrangements for response resources.
1.2Definitions.
1.2.1
(1) Group A—specific gravity less than 0.8.
(2) Group B—specific gravity equal to or greater than 0.8 and less than 1.0.
(3) Group C—specific gravity equal to or greater than 1.0.
1.2.2
1.2.3
(1) A petroleum-based oil that, at the time of shipment, consists of hydrocarbon fractions:
(A) At least 50 percent of which by volume, distill at a temperature of 340 degrees C (645 degrees F); and
(B) At least 95 percent of which by volume, distill at a temperature of 370 degrees C (700 degrees F); and
(2) A non-petroleum oil, other than an animal fat or vegetable oil, with a specific gravity less than 0.8.
1.2.4
1.2.5
1.2.6
1.2.7
1.2.8
(1) A petroleum-based oil that does not meet the distillation criteria for a non-persistent oil. Persistent oils are further classified based on specific gravity as follows:
(A) Group 2—specific gravity less than 0.85;
(B) Group 3—specific gravity equal to or greater than 0.85 and less than 0.95;
(C) Group 4—specific gravity equal to or greater than 0.95 and less than 1.0; or
(D) Group 5—specific gravity equal to or greater than 1.0.
(2) A non-petroleum oil, other than an animal fat or vegetable oil, with a specific gravity of 0.8 or greater. These oils are further classified based on specific gravity as follows:
(A) Group 2—specific gravity equal to or greater than 0.8 and less than 0.85;
(B) Group 3—specific gravity equal to or greater than 0.85 and less than 0.95;
(C) Group 4—specific gravity equal to or greater than 0.95 and less than 1.0; or
(D) Group 5—specific gravity equal to or greater than 1.0.
1.2.9
(1) Group A—specific gravity less than 0.8.
(2) Group B—specific gravity equal to or greater than 0.8 and less than 1.0.
(3) Group C—specific gravity equal to or greater than 1.0.
1.2.10 Other definitions are included in § 112.2, section 1.1 of Appendix C, and section 3.0 of Appendix F.
2.1All equipment identified in a response plan must be designed to operate in the conditions expected in the facility's geographic area (i.e., operating environment). These conditions vary widely based on location and season. Therefore, it is difficult to identify a single stockpile of response equipment that will function effectively in each geographic location (i.e., operating area).
2.2Facilities handling, storing, or transporting oil in more than one operating environment as indicated in Table 1 of this appendix must identify equipment capable of successfully functioning in each operating environment.
2.3When identifying equipment for the response plan (based on the use of this appendix), a facility owner or operator must consider the inherent limitations of the operability of equipment components and response systems. The criteria in Table 1 of this appendix shall be used to evaluate the operability in a given environment. These criteria reflect the general conditions in certain operating environments.
2.3.1The Regional Administrator may require documentation that the boom identified in a facility response plan meets the criteria in Table 1 of this appendix. Absent acceptable documentation, the Regional Administrator may require that the boom be tested to demonstrate that it meets the criteria in Table 1 of this appendix. Testing must be in accordance with ASTM F 715, ASTM F 989, or other tests approved by EPA as deemed appropriate (see Appendix E to this part, section 13, for general availability of documents).
2.4Table 1 of this appendix lists criteria for oil recovery devices and boom. All other equipment necessary to sustain or support response operations in an operating environment must be designed to function in the same conditions. For example, boats that deploy or support skimmers or boom must be capable of being safely operated in the significant wave heights listed for the applicable operating environment.
2.5A facility owner or operator shall refer to the applicable Area Contingency Plan (ACP), where available, to determine if ice, debris, and weather-related visibility are significant factors to evaluate the operability of equipment. The ACP may also identify the average temperature ranges expected in the facility's operating area. All equipment identified in a response plan must be designed to operate within those conditions or ranges.
2.6This appendix provides information on response resource mobilization and response times. The distance of the facility from the storage location of the response resources must be used to determine whether the resources can arrive on-scene within the stated time. A facility owner or operator shall include the time for notification, mobilization, and travel of resources identified to meet the medium and Tier 1 worst case discharge requirements identified in sections 4.3 and 9.3 of this appendix (for medium discharges) and section 5.3 of this appendix (for worst case discharges). The facility owner or operator must plan for notification and mobilization of Tier 2 and 3 response resources as necessary to meet the requirements for arrival on-scene in accordance with section 5.3 of this appendix. An on-water speed of 5 knots and a land speed of 35 miles per hour is assumed, unless the facility owner or operator can demonstrate otherwise.
2.7In identifying equipment, the facility owner or operator shall list the storage location, quantity, and manufacturer's make and model. For oil recovery devices, the effective daily recovery capacity, as determined using section 6 of this appendix, must be included. For boom, the overall boom height (draft and freeboard) shall be included. A facility owner or operator is responsible for ensuring that the identified boom has compatible connectors.
3.1A facility owner or operator shall identify sufficient response resources available, by contract or other approved means as described in § 112.2, to respond to a small discharge. A small discharge is defined as any discharge volume less than or equal to 2,100 gallons, but not to exceed the calculated worst case discharge. The equipment must be designed to function in the operating environment at the point of expected use.
3.2Complexes that are regulated by EPA and the United States Coast Guard (USCG) must also consider planning quantities for the transportation-related transfer portion of the facility.
3.2.1
3.2.2
3.3The response resources shall, as appropriate, include:
3.3.1One thousand feet of containment boom (or, for complexes with marine transfer components, 1,000 feet of containment boom or two times the length of the largest vessel that regularly conducts oil transfers to or from the facility, whichever is greater), and a means of deploying it within 1 hour of the discovery of a discharge;
3.3.2Oil recovery devices with an effective daily recovery capacity equal to the amount of oil discharged in a small discharge or greater which is available at the
3.3.3Oil storage capacity for recovered oily material indicated in section 12.2 of this appendix.
4.1A facility owner or operator shall identify sufficient response resources available, by contract or other approved means as described in § 112.2, to respond to a medium discharge of oil for that facility. This will require response resources capable of containing and collecting up to 36,000 gallons of oil or 10 percent of the worst case discharge, whichever is less. All equipment identified must be designed to operate in the applicable operating environment specified in Table 1 of this appendix.
4.2Complexes that are regulated by EPA and the USCG must also consider planning quantities for the transportation-related transfer portion of the facility.
4.2.1
4.2.2
4.3Oil recovery devices identified to meet the applicable medium discharge volume planning criteria must be located such that they are capable of arriving on-scene within 6 hours in higher volume port areas and the Great Lakes and within 12 hours in all other areas. Higher volume port areas and Great Lakes areas are defined in section 1.1 of Appendix C to this part.
4.4Because rapid control, containment, and removal of oil are critical to reduce discharge impact, the owner or operator must determine response resources using an effective daily recovery capacity for oil recovery devices equal to 50 percent of the planning volume applicable for the facility as determined in section 4.1 of this appendix. The effective daily recovery capacity for oil recovery devices identified in the plan must be determined using the criteria in section 6 of this appendix.
4.5In addition to oil recovery capacity, the plan shall, as appropriate, identify sufficient quantity of containment boom available, by contract or other approved means as described in § 112.2, to arrive within the required response times for oil collection and containment and for protection of fish and wildlife and sensitive environments. For further description of fish and wildlife and sensitive environments, see Appendices I, II, and III to DOC/NOAA's “Guidance for Facility and Vessel Response Plans: Fish and Wildlife and Sensitive Environments” (see Appendix E to this part, section 13, for availability) and the applicable ACP. Although 40 CFR part 112 does not set required quantities of boom for oil collection and containment, the response plan shall identify and ensure, by contract or other approved means as described in § 112.2, the availability of the quantity of boom identified in the plan for this purpose.
4.6The plan must indicate the availability of temporary storage capacity to meet section 12.2 of this appendix. If available storage capacity is insufficient to meet this level, then the effective daily recovery capacity must be derated (downgraded) to the limits of the available storage capacity.
4.7The following is an example of a medium discharge volume planning calculation for equipment identification in a higher volume port area: The facility's largest aboveground storage tank volume is 840,000 gallons. Ten percent of this capacity is 84,000 gallons. Because 10 percent of the facility's largest tank, or 84,000 gallons, is greater than 36,000 gallons, 36,000 gallons is used as the planning volume. The effective daily recovery capacity is 50 percent of the planning volume, or 18,000 gallons per day. The ability of oil recovery devices to meet this capacity must be calculated using the procedures in section 6 of this appendix. Temporary storage capacity available on-scene must equal twice the daily recovery capacity as indicated in section 12.2 of this appendix, or 36,000 gallons per day. This is the information the facility owner or operator must use to identify and ensure the availability of the required response resources, by contract or other approved means as described in § 112.2. The facility owner shall also identify how much boom is available for use.
5.1A facility owner or operator shall identify and ensure the availability of, by
5.1A facility owner or operator shall identify and ensure the availability of, by contract or other approved means as described in § 112.2, sufficient response resources to respond to the worst case discharge of oil to the maximum extent practicable. Sections 7 and 10 of this appendix describe the method to determine the necessary response resources. Worksheets are provided as Attachments E-1 and E-2 at the end of this appendix to simplify the procedures involved in calculating the planning volume for response resources for the worst case discharge.
5.2Complexes that are regulated by EPA and the USCG must also consider planning for the worst case discharge at the transportation-related portion of the facility. The USCG requires that transportation-related facility owners or operators use a different calculation for the worst case discharge in the revisions to 33 CFR part 154. Owners or operators of complex facilities that are regulated by EPA and the USCG must compare both calculations of worst case discharge derived by EPA and the USCG and plan for whichever volume is greater.
5.3Oil discharge response resources identified in the response plan and available, by contract or other approved means as described in § 112.2, to meet the applicable worst case discharge planning volume must be located such that they are capable of arriving at the scene of a discharge within the times specified for the applicable response tier listed as follows
The three levels of response tiers apply to the amount of time in which facility owners or operators must plan for response resources to arrive at the scene of a discharge to respond to the worst case discharge planning volume. For example, at a worst case discharge in an inland area, the first tier of response resources (
5.4The effective daily recovery capacity for oil recovery devices identified in the response plan must be determined using the criteria in section 6 of this appendix. A facility owner or operator shall identify the storage locations of all response resources used for each tier. The owner or operator of a facility whose required daily recovery capacity exceeds the applicable contracting caps in Table 5 of this appendix shall, as appropriate, identify sources of additional equipment, their location, and the arrangements made to obtain this equipment during a response. The owner or operator of a facility whose calculated planning volume exceeds the applicable contracting caps in Table 5 of this appendix shall, as appropriate, identify sources of additional equipment equal to twice the cap listed in Tier 3 or the amount necessary to reach the calculated planning volume, whichever is lower. The resources identified above the cap shall be capable of arriving on-scene not later than the Tier 3 response times in section 5.3 of this appendix. No contract is required. While general listings of available response equipment may be used to identify additional sources (i.e., “public” resources vs. “private” resources), the response plan shall identify the specific sources, locations, and quantities of equipment that a facility owner or operator has considered in his or her planning. When listing USCG-classified oil spill removal organization(s) that have sufficient removal capacity to recover the volume above the response capacity cap for the specific facility, as specified in Table 5 of this appendix, it is not necessary to list specific quantities of equipment.
5.5A facility owner or operator shall identify the availability of temporary storage capacity to meet section 12.2 of this appendix. If available storage capacity is insufficient, then the effective daily recovery capacity must be derated (downgraded) to the limits of the available storage capacity.
5.6When selecting response resources necessary to meet the response plan requirements, the facility owner or operator shall, as appropriate, ensure that a portion of
5.7In addition to oil spill recovery devices, a facility owner or operator shall identify sufficient quantities of boom that are available, by contract or other approved means as described in § 112.2, to arrive on-scene within the specified response times for oil containment and collection. The specific quantity of boom required for collection and containment will depend on the facility-specific information and response strategies employed. A facility owner or operator shall, as appropriate, also identify sufficient quantities of oil containment boom to protect fish and wildlife and sensitive environments. For further description of fish and wildlife and sensitive environments, see Appendices I, II, and III to DOC/NOAA's “Guidance for Facility and Vessel Response Plans: Fish and Wildlife and Sensitive Environments” (see Appendix E to this part, section 13, for availability), and the applicable ACP. Refer to this guidance document for the number of days and geographic areas (
5.8A facility owner or operator shall also identify, by contract or other approved means as described in § 112.2, the availability of an oil spill removal organization(s) (as described in § 112.2) capable of responding to a shoreline cleanup operation involving the calculated volume of oil and emulsified oil that might impact the affected shoreline. The volume of oil that shall, as appropriate, be planned for is calculated through the application of factors contained in Tables 2, 3, 6, and 7 of this appendix. The volume calculated from these tables is intended to assist the facility owner or operator to identify an oil spill removal organization with sufficient resources and expertise.
6.1Oil recovery devices identified by a facility owner or operator must be identified by the manufacturer, model, and effective daily recovery capacity. These capacities must be used to determine whether there is sufficient capacity to meet the applicable planning criteria for a small discharge, a medium discharge, and a worst case discharge to the maximum extent practicable.
6.2To determine the effective daily recovery capacity of oil recovery devices, the formula listed in section 6.2.1 of this appendix shall be used. This formula considers potential limitations due to available daylight, weather, sea state, and percentage of emulsified oil in the recovered material. The RA may assign a lower efficiency factor to equipment listed in a response plan if it is determined that such a reduction is warranted.
6.2.1The following formula shall be used to calculate the effective daily recovery capacity:
6.2.2For those devices in which the pump limits the throughput of liquid, throughput rate shall be calculated using the pump capacity.
6.2.3For belt or moptype devices, the throughput rate shall be calculated using the speed of the belt or mop through the device, assumed thickness of oil adhering to or collected by the device, and surface area of the belt or mop. For purposes of this calculation, the assumed thickness of oil will be
6.2.4Facility owners or operators that include oil recovery devices whose throughput is not measurable using a pump capacity or belt/mop speed may provide information to support an alternative method of calculation. This information must be submitted following the procedures in section 6.3.2 of this appendix.
6.3As an alternative to section 6.2 of this appendix, a facility owner or operator may submit adequate evidence that a different effective daily recovery capacity should be applied for a specific oil recovery device. Adequate evidence is actual verified performance data in discharge conditions or tests using American Society of Testing and Materials (ASTM) Standard F 631-99, F 808-83 (1999), or an equivalent test approved by EPA as deemed appropriate (see Appendix E to this part, section 13, for general availability of documents).
6.3.1The following formula must be used to calculate the effective daily recovery capacity under this alternative:
6.3.2A facility owner or operator submitting a response plan shall provide data that supports the effective daily recovery capacities for the oil recovery devices listed. The following is an example of these calculations:
(1) A weir skimmer identified in a response plan has a manufacturer's rated throughput at the pump of 267 gallons per minute (gpm).
(2) After testing using ASTM procedures, the skimmer's oil recovery rate is determined to be 220 gpm. The facility owner or operator identifies sufficient resources available to support operations for 12 hours per day.
(3) The facility owner or operator will be able to use the higher capacity if sufficient temporary oil storage capacity is available. Determination of alternative efficiency factors under section 6.2 of this appendix or the acceptability of an alternative effective daily recovery capacity under section 6.3 of this appendix will be made by the Regional Administrator as deemed appropriate.
7.1A facility owner or operator shall plan for a response to the facility's worst case discharge. The planning for on-water oil recovery must take into account a loss of some oil to the environment due to evaporative and natural dissipation, potential increases in volume due to emulsification, and the potential for deposition of oil on the shoreline. The procedures for non-petroleum oils other than animal fats and vegetable oils are discussed in section 7.7 of this appendix.
7.2The following procedures must be used by a facility owner or operator in determining the required on-water oil recovery capacity:
7.2.1The following must be determined: the worst case discharge volume of oil in the facility; the appropriate group(s) for the types of oil handled, stored, or transported at the facility [persistent (Groups 2, 3, 4, 5) or non-persistent (Group 1)]; and the facility's specific operating area. See sections 1.2.3 and 1.2.8 of this appendix for the definitions of non-persistent and persistent oils, respectively. Facilities that handle, store, or transport oil from different oil groups must calculate each group separately, unless the oil group constitutes 10 percent or less by volume of the facility's total oil storage capacity. This information is to be used with Table 2 of this appendix to determine the percentages of the total volume to be used for removal capacity planning. Table 2 of this appendix divides the volume into three categories: oil lost to the environment; oil deposited on the shoreline; and oil available for on-water recovery.
7.2.2The on-water oil recovery volume shall, as appropriate, be adjusted using the appropriate emulsification factor found in Table 3 of this appendix. Facilities that handle, store, or transport oil from different petroleum groups must compare the on-water recovery volume for each oil group (unless the oil group constitutes 10 percent or less by volume of the facility's total storage capacity) and use the calculation that results in the largest on-water oil recovery volume to plan for the amount of response resources for a worst case discharge.
7.2.3The adjusted volume is multiplied by the on-water oil recovery resource mobilization factor found in Table 4 of this appendix from the appropriate operating area and response tier to determine the total on-water oil recovery capacity in barrels per day that must be identified or contracted to arrive on-scene within the applicable time for each response tier. Three tiers are specified. For higher volume port areas, the contracted tiers of resources must be located such that they are capable of arriving on-scene within 6 hours for Tier 1, 30 hours for Tier 2, and 54 hours for Tier 3 of the discovery of an oil discharge. For all other rivers and canals, inland, nearshore areas, and the Great Lakes, these tiers are 12, 36, and 60 hours.
7.2.4The resulting on-water oil recovery capacity in barrels per day for each tier is used to identify response resources necessary to sustain operations in the applicable operating area. The equipment shall be capable of sustaining operations for the time period specified in Table 2 of this appendix. The facility owner or operator shall identify and ensure the availability, by contract or other approved means as described in § 112.2, of sufficient oil spill recovery devices to provide the effective daily oil recovery capacity required. If the required capacity exceeds the applicable cap specified in Table 5 of this appendix, then a facility owner or operator shall ensure, by contract or other approved means as described in § 112.2, only for the quantity of resources required to meet the cap, but shall identify sources of additional resources as indicated in section 5.4 of this appendix. The owner or operator of a facility whose planning volume exceeded the cap in 1993 must make arrangements to identify and ensure the availability, by contract or other approved means as described in § 112.2, for additional capacity to be under contract by 1998 or 2003, as appropriate. For a facility that handles multiple groups of oil, the required effective daily recovery capacity for each oil group is calculated before applying the cap. The oil group calculation resulting in the largest on-water recovery volume
7.3The procedures discussed in sections 7.3.1-7.3.3 of this appendix must be used to calculate the planning volume for identifying shoreline cleanup capacity (for Group 1 through Group 4 oils).
7.3.1The following must be determined: the worst case discharge volume of oil for the facility; the appropriate group(s) for the types of oil handled, stored, or transported at the facility [persistent (Groups 2, 3, or 4) or non-persistent (Group 1)]; and the geographic area(s) in which the facility operates (
7.3.2The shoreline cleanup planning volume must be adjusted to reflect an emulsification factor using the same procedure as described in section 7.2.2 of this appendix.
7.3.3The resulting volume shall be used to identify an oil spill removal organization with the appropriate shoreline cleanup capability.
7.4A response plan must identify response resources with fire fighting capability. The owner or operator of a facility that handles, stores, or transports Group 1 through Group 4 oils that does not have adequate fire fighting resources located at the facility or that cannot rely on sufficient local fire fighting resources must identify adequate fire fighting resources. The facility owner or operator shall ensure, by contract or other approved means as described in § 112.2, the availability of these resources. The response plan must also identify an individual located at the facility to work with the fire department for Group 1 through Group 4 oil fires. This individual shall also verify that sufficient well-trained fire fighting resources are available within a reasonable response time to a worst case scenario. The individual may be the qualified individual identified in the response plan or another appropriate individual located at the facility.
7.5The following is an example of the procedure described above in sections 7.2 and 7.3 of this appendix: A facility with a 270,000 barrel (11.3 million gallons) capacity for #6 oil (specific gravity 0.96) is located in a higher volume port area. The facility is on a peninsula and has docks on both the ocean and bay sides. The facility has four aboveground oil storage tanks with a combined total capacity of 80,000 barrels (3.36 million gallons) and no secondary containment. The remaining facility tanks are inside secondary containment structures. The largest aboveground oil storage tank (90,000 barrels or 3.78 million gallons) has its own secondary containment. Two 50,000 barrel (2.1 million gallon) tanks (that are not connected by a manifold) are within a common secondary containment tank area, which is capable of holding 100,000 barrels (4.2 million gallons) plus sufficient freeboard.
7.5.1The worst case discharge for the facility is calculated by adding the capacity of all aboveground oil storage tanks without secondary containment (80,000 barrels) plus the capacity of the largest aboveground oil storage tank inside secondary containment. The resulting worst case discharge volume is 170,000 barrels or 7.14 million gallons.
7.5.2Because the requirements for Tiers 1, 2, and 3 for inland and nearshore exceed the caps identified in Table 5 of this appendix, the facility owner will contract for a response to 10,000 barrels per day (bpd) for Tier 1, 20,000 bpd for Tier 2, and 40,000 bpd for Tier 3. Resources for the remaining 7,850 bpd for Tier 1, 9,750 bpd for Tier 2, and 7,600 bpd for Tier 3 shall be identified but need not be contracted for in advance. The facility owner or operator shall, as appropriate, also identify or contract for quantities of boom identified in their response plan for the protection of fish and wildlife and sensitive environments within the area potentially impacted by a worst case discharge from the facility. For further description of fish and wildlife and sensitive environments, see Appendices I, II, and III to DOC/NOAA's “Guidance for Facility and Vessel Response Plans: Fish and Wildlife and Sensitive Environments,” (see Appendix E to this part, section 13, for availability) and the applicable ACP. Attachment C-III to Appendix C provides a method for calculating a planning distance to fish and wildlife and sensitive environments and public drinking water intakes that may be impacted in the event of a worst case discharge.
7.6The procedures discussed in sections 7.6.1-7.6.3 of this appendix must be used to determine appropriate response resources for facilities with Group 5 oils.
7.6.1The owner or operator of a facility that handles, stores, or transports Group 5 oils shall, as appropriate, identify the response resources available by contract or other approved means, as described in § 112.2. The equipment identified in a response plan shall, as appropriate, include:
(1) Sonar, sampling equipment, or other methods for locating the oil on the bottom or suspended in the water column;
(2) Containment boom, sorbent boom, silt curtains, or other methods for containing the oil that may remain floating on the surface or to reduce spreading on the bottom;
(3) Dredges, pumps, or other equipment necessary to recover oil from the bottom and shoreline;
(4) Equipment necessary to assess the impact of such discharges; and
(5) Other appropriate equipment necessary to respond to a discharge involving the type of oil handled, stored,, or transported.
7.6.2Response resources identified in a response plan for a facility that handles, stores, or transports Group 5 oils under section 7.6.1 of this appendix shall be capable of being deployed (on site) within 24 hours of discovery of a discharge to the area where the facility is operating.
7.6.3A response plan must identify response resources with fire fighting capability. The owner or operator of a facility that handles, stores, or transports Group 5 oils that does not have adequate fire fighting resources located at the facility or that cannot rely on sufficient local fire fighting resources must identify adequate fire fighting resources. The facility owner or operator shall ensure, by contract or other approved means as described in § 112.2, the availability of these resources. The response plan shall also identify an individual located at the facility to work with the fire department for Group 5 oil fires. This individual shall also verify that sufficient well-trained fire fighting resources are available within a reasonable response time to respond to a worst case discharge. The individual may be the qualified individual identified in the response plan or another appropriate individual located at the facility.
7.7
7.7.1An owner or operator of a facility that handles, stores, or transports non-petroleum oils other than animal fats and vegetable oils must provide information in his or her plan that identifies:
(1) Procedures and strategies for responding to a worst case discharge to the maximum extent practicable; and
(2) Sources of the equipment and supplies necessary to locate, recover, and mitigate such a discharge.
7.7.2An owner or operator of a facility that handles, stores, or transports non-petroleum oils other than animal fats and vegetable oils must ensure that any equipment identified in a response plan is capable of operating in the conditions expected in the geographic area(s) (
(1) Ice conditions;
(2) Debris;
(3) Temperature ranges; and
(4) Weather-related visibility.
7.7.3The owner or operator of a facility that handles, stores, or transports non-petroleum oils other than animal fats and vegetable oils must identify the response resources that are available by contract or other approved means, as described in § 112.2. The equipment described in the response plan shall, as appropriate, include:
(1) Containment boom, sorbent boom, or other methods for containing oil floating on the surface or to protect shorelines from impact;
(2) Oil recovery devices appropriate for the type of non-petroleum oil carried; and
(3) Other appropriate equipment necessary to respond to a discharge involving the type of oil carried.
7.7.4Response resources identified in a response plan according to section 7.7.3 of this appendix must be capable of commencing an effective on-scene response within the applicable tier response times in section 5.3 of this appendix.
7.7.5A response plan must identify response resources with fire fighting capability. The owner or operator of a facility that handles, stores, or transports non-petroleum oils other than animal fats and vegetable oils that does not have adequate fire fighting resources located at the facility or that cannot rely on sufficient local fire fighting resources must identify adequate fire fighting resources. The owner or operator shall ensure, by contract or other approved means as described in § 112.2, the availability of these resources. The response plan must also identify an individual located at the facility to work with the fire department for fires of these oils. This individual shall also verify that sufficient well-trained fire fighting resources are available within a reasonable response time to a worst case scenario. The individual may be the qualified individual identified in the response plan or another appropriate individual located at the facility.
8.1A facility owner or operator shall identify sufficient response resources available, by contract or other approved means as described in § 112.2, to respond to a small discharge of animal fats or vegetable oils. A small discharge is defined as any discharge volume less than or equal to 2,100 gallons, but not to exceed the calculated worst case discharge. The equipment must be designed to function in the operating environment at the point of expected use.
8.2Complexes that are regulated by EPA and the USCG must also consider planning quantities for the marine transportation-related portion of the facility.
8.2.1The USCG planning level that corresponds to EPA's “small discharge” is termed “the average most probable discharge.” A USCG rule found at 33 CFR 154.1020 defines “the average most probable discharge” as the lesser of 50 barrels (2,100 gallons) or 1 percent of the volume of the worst case discharge. Owners or operators of complexes that handle, store, or transport animal fats and vegetable oils must compare oil discharge volumes for a small discharge and an average most probable discharge, and plan for whichever quantity is greater.
8.3The response resources shall, as appropriate, include:
8.3.1One thousand feet of containment boom (or, for complexes with marine transfer components, 1,000 feet of containment boom or two times the length of the largest vessel that regularly conducts oil transfers to or from the facility, whichever is greater), and a means of deploying it within 1 hour of the discovery of a discharge;
8.3.2Oil recovery devices with an effective daily recovery capacity equal to the amount of oil discharged in a small discharge or greater which is available at the facility within 2 hours of the detection of a discharge; and
8.3.3Oil storage capacity for recovered oily material indicated in section 12.2 of this appendix.
9.1A facility owner or operator shall identify sufficient response resources available, by contract or other approved means as described in § 112.2, to respond to a medium discharge of animal fats or vegetable oils for that facility. This will require response resources capable of containing and collecting up to 36,000 gallons of oil or 10 percent of the worst case discharge, whichever is less. All equipment identified must be designed to operate in the applicable operating environment specified in Table 1 of this appendix.
9.2Complexes that are regulated by EPA and the USCG must also consider planning quantities for the transportation-related transfer portion of the facility. Owners or operators of complexes that handle, store, or transport animal fats or vegetable oils must plan for oil discharge volumes for a medium discharge. For non-petroleum oils, there is no USCG planning level that directly corresponds to EPA's “medium discharge.” Although the USCG does not have planning requirements for medium discharges, they do have requirements (at 33 CFR 154.545) to identify equipment to contain oil resulting from an operational discharge.
9.3Oil recovery devices identified to meet the applicable medium discharge volume planning criteria must be located such that they are capable of arriving on-scene within 6 hours in higher volume port areas and the Great Lakes and within 12 hours in all other areas. Higher volume port areas and Great Lakes areas are defined in section 1.1 of Appendix C to this part.
9.4Because rapid control, containment, and removal of oil are critical to reduce discharge impact, the owner or operator must determine response resources using an effective daily recovery capacity for oil recovery devices equal to 50 percent of the planning volume applicable for the facility as determined in section 9.1 of this appendix. The effective daily recovery capacity for oil recovery devices identified in the plan must be determined using the criteria in section 6 of this appendix.
9.5In addition to oil recovery capacity, the plan shall, as appropriate, identify sufficient quantity of containment boom available, by contract or other approved means as described in § 112.2, to arrive within the required response times for oil collection and containment and for protection of fish and wildlife and sensitive environments. For further description of fish and wildlife and sensitive environments, see Appendices I, II, and III to DOC/NOAA's “Guidance for Facility and Vessel Response Plans: Fish and Wildlife and Sensitive Environments” (59 FR 14713-22, March 29, 1994) and the applicable ACP. Although 40 CFR part 112 does not set required quantities of boom for oil collection and containment, the response plan shall identify and ensure, by contract or other approved means as described in § 112.2, the availability of the quantity of boom identified in the plan for this purpose.
9.6The plan must indicate the availability of temporary storage capacity to meet section 12.2 of this appendix. If available storage capacity is insufficient to meet this level, then the effective daily recovery capacity must be derated (downgraded) to the limits of the available storage capacity.
9.7The following is an example of a medium discharge volume planning calculation for equipment identification in a higher volume port area:
The facility's largest aboveground storage tank volume is 840,000 gallons. Ten percent of this capacity is 84,000 gallons. Because 10 percent of the facility's largest tank, or 84,000 gallons, is greater than 36,000 gallons, 36,000 gallons is used as the planning volume. The effective daily recovery capacity is 50 percent of the planning volume, or 18,000 gallons per day. The ability of oil recovery devices to meet this capacity must be calculated using the procedures in section 6 of this appendix. Temporary storage capacity available on-scene must equal twice the
10.1A facility owner or operator shall plan for a response to the facility's worst case discharge. The planning for on-water oil recovery must take into account a loss of some oil to the environment due to physical, chemical, and biological processes, potential increases in volume due to emulsification, and the potential for deposition of oil on the shoreline or on sediments. The response planning procedures for animal fats and vegetable oils are discussed in section 10.7 of this appendix. You may use alternate response planning procedures for animal fats and vegetable oils if those procedures result in environmental protection equivalent to that provided by the procedures in section 10.7 of this appendix.
10.2The following procedures must be used by a facility owner or operator in determining the required on-water oil recovery capacity:
10.2.1The following must be determined: the worst case discharge volume of oil in the facility; the appropriate group(s) for the types of oil handled, stored, or transported at the facility (Groups A, B, C); and the facility's specific operating area. See sections 1.2.1 and 1.2.9 of this appendix for the definitions of animal fats and vegetable oils and groups thereof. Facilities that handle, store, or transport oil from different oil groups must calculate each group separately, unless the oil group constitutes 10 percent or less by volume of the facility's total oil storage capacity. This information is to be used with Table 6 of this appendix to determine the percentages of the total volume to be used for removal capacity planning. Table 6 of this appendix divides the volume into three categories: oil lost to the environment; oil deposited on the shoreline; and oil available for on-water recovery.
10.2.2The on-water oil recovery volume shall, as appropriate, be adjusted using the appropriate emulsification factor found in Table 7 of this appendix. Facilities that handle, store, or transport oil from different groups must compare the on-water recovery volume for each oil group (unless the oil group constitutes 10 percent or less by volume of the facility's total storage capacity) and use the calculation that results in the largest on-water oil recovery volume to plan for the amount of response resources for a worst case discharge.
10.2.3The adjusted volume is multiplied by the on-water oil recovery resource mobilization factor found in Table 4 of this appendix from the appropriate operating area and response tier to determine the total on-water oil recovery capacity in barrels per day that must be identified or contracted to arrive on-scene within the applicable time for each response tier. Three tiers are specified. For higher volume port areas, the contracted tiers of resources must be located such that they are capable of arriving on-scene within 6 hours for Tier 1, 30 hours for Tier 2, and 54 hours for Tier 3 of the discovery of a discharge. For all other rivers and canals, inland, nearshore areas, and the Great Lakes, these tiers are 12, 36, and 60 hours.
10.2.4The resulting on-water oil recovery capacity in barrels per day for each tier is used to identify response resources necessary to sustain operations in the applicable operating area. The equipment shall be capable of sustaining operations for the time period specified in Table 6 of this appendix. The facility owner or operator shall identify and ensure, by contract or other approved means as described in § 112.2, the availability of sufficient oil spill recovery devices to provide the effective daily oil recovery capacity required. If the required capacity exceeds the applicable cap specified in Table 5 of this appendix, then a facility owner or operator shall ensure, by contract or other approved means as described in § 112.2, only for the quantity of resources required to meet the cap, but shall identify sources of additional resources as indicated in section 5.4 of this appendix. The owner or operator of a facility whose planning volume exceeded the cap in 1998 must make arrangements to identify and ensure, by contract or other approved means as described in § 112.2, the availability of additional capacity to be under contract by 2003, as appropriate. For a facility that handles multiple groups of oil, the required effective daily recovery capacity for each oil group is calculated before applying the cap. The oil group calculation resulting in the largest on-water recovery volume must be used to plan for the amount of response resources for a worst case discharge, unless the oil group comprises 10 percent or less by volume of the facility's oil storage capacity.
10.3The procedures discussed in sections 10.3.1 through 10.3.3 of this appendix must be used to calculate the planning volume for identifying shoreline cleanup capacity (for Groups A and B oils).
10.3.1The following must be determined: the worst case discharge volume of oil for the facility; the appropriate group(s) for the types of oil handled, stored, or transported at the facility (Groups A or B); and the geographic area(s) in which the facility operates
10.3.2The shoreline cleanup planning volume must be adjusted to reflect an emulsification factor using the same procedure as described in section 10.2.2 of this appendix.
10.3.3The resulting volume shall be used to identify an oil spill removal organization with the appropriate shoreline cleanup capability.
10.4A response plan must identify response resources with fire fighting capability appropriate for the risk of fire and explosion at the facility from the discharge or threat of discharge of oil. The owner or operator of a facility that handles, stores, or transports Group A or B oils that does not have adequate fire fighting resources located at the facility or that cannot rely on sufficient local fire fighting resources must identify adequate fire fighting resources. The facility owner or operator shall ensure, by contract or other approved means as described in § 112.2, the availability of these resources. The response plan must also identify an individual to work with the fire department for Group A or B oil fires. This individual shall also verify that sufficient well-trained fire fighting resources are available within a reasonable response time to a worst case scenario. The individual may be the qualified individual identified in the response plan or another appropriate individual located at the facility.
10.5The following is an example of the procedure described in sections 10.2 and 10.3 of this appendix. A facility with a 37.04 million gallon (881,904 barrel) capacity of several types of vegetable oils is located in the Inland Operating Area. The vegetable oil with the highest specific gravity stored at the facility is soybean oil (specific gravity 0.922, Group B vegetable oil). The facility has ten aboveground oil storage tanks with a combined total capacity of 18 million gallons (428,571 barrels) and without secondary containment. The remaining facility tanks are inside secondary containment structures. The largest aboveground oil storage tank (3 million gallons or 71,428 barrels) has its own secondary containment. Two 2.1 million gallon (50,000 barrel) tanks (that are not connected by a manifold) are within a common secondary containment tank area, which is capable of holding 4.2 million gallons (100,000 barrels) plus sufficient freeboard.
10.5.1The worst case discharge for the facility is calculated by adding the capacity of all aboveground vegetable oil storage tanks without secondary containment (18.0 million gallons) plus the capacity of the largest aboveground storage tank inside secondary containment (3.0 million gallons). The resulting worst case discharge is 21 million gallons or 500,000 barrels.
10.5.2With a specific worst case discharge identified, the planning volume for on-water recovery can be identified as follows:
10.5.3Because the requirements for On-Water Recovery Resources for Tiers 1, 2, and 3 for Inland Operating Area exceed the caps identified in Table 5 of this appendix, the facility owner will contract for a response of 12,500 barrels per day (bpd) for Tier 1, 25,000 bpd for Tier 2, and 50,000 bpd for Tier 3. Resources for the remaining 17,500 bpd for Tier 1, 25,000 bpd for Tier 2, and 30,000 bpd for Tier 3 shall be identified but need not be contracted for in advance.
10.5.4With the specific worst case discharge identified, the planning volume of onshore recovery can be identified as follows:
10.5.5The facility owner or operator shall, as appropriate, also identify or contract for quantities of boom identified in the response plan for the protection of fish and wildlife
10.6The procedures discussed in sections 10.6.1 through 10.6.3 of this appendix must be used to determine appropriate response resources for facilities with Group C oils.
10.6.1The owner or operator of a facility that handles, stores, or transports Group C oils shall, as appropriate, identify the response resources available by contract or other approved means, as described in § 112.2. The equipment identified in a response plan shall, as appropriate, include:
(1) Sonar, sampling equipment, or other methods for locating the oil on the bottom or suspended in the water column;
(2) Containment boom, sorbent boom, silt curtains, or other methods for containing the oil that may remain floating on the surface or to reduce spreading on the bottom;
(3) Dredges, pumps, or other equipment necessary to recover oil from the bottom and shoreline;
(4) Equipment necessary to assess the impact of such discharges; and
(5) Other appropriate equipment necessary to respond to a discharge involving the type of oil handled, stored, or transported.
10.6.2Response resources identified in a response plan for a facility that handles, stores, or transports Group C oils under section 10.6.1 of this appendix shall be capable of being deployed on scene within 24 hours of discovery of a discharge.
10.6.3A response plan must identify response resources with fire fighting capability. The owner or operator of a facility that handles, stores, or transports Group C oils that does not have adequate fire fighting resources located at the facility or that cannot rely on sufficient local fire fighting resources must identify adequate fire fighting resources. The owner or operator shall ensure, by contract or other approved means as described in § 112.2, the availability of these resources. The response plan shall also identify an individual located at the facility to work with the fire department for Group C oil fires. This individual shall also verify that sufficient well-trained fire fighting resources are available within a reasonable response time to respond to a worst case discharge. The individual may be the qualified individual identified in the response plan or another appropriate individual located at the facility.
10.7The procedures described in sections 10.7.1 through 10.7.5 of this appendix must be used to determine appropriate response plan development and evaluation criteria for facilities that handle, store, or transport animal fats and vegetable oils. Refer to section 11 of this appendix for information on the limitations on the use of chemical agents for inland and nearshore areas.
10.7.1An owner or operator of a facility that handles, stores, or transports animal fats and vegetable oils must provide information in the response plan that identifies:
(1)Procedures and strategies for responding to a worst case discharge of animal fats and vegetable oils to the maximum extent practicable; and
(2)Sources of the equipment and supplies necessary to locate, recover, and mitigate such a discharge.
10.7.2An owner or operator of a facility that handles, stores, or transports animal fats and vegetable oils must ensure that any equipment identified in a response plan is capable of operating in the geographic area(s) (
(1) Ice conditions;
(2) Debris;
(3) Temperature ranges; and
(4) Weather-related visibility.
10.7.3.The owner or operator of a facility that handles, stores, or transports animal fats and vegetable oils must identify the response resources that are available by contract or other approved means, as described in § 112.2. The equipment described in the response plan shall, as appropriate, include:
(1) Containment boom, sorbent boom, or other methods for containing oil floating on the surface or to protect shorelines from impact;
(2) Oil recovery devices appropriate for the type of animal fat or vegetable oil carried; and
(3) Other appropriate equipment necessary to respond to a discharge involving the type of oil carried.
10.7.4Response resources identified in a response plan according to section 10.7.3 of this appendix must be capable of commencing an effective on-scene response within the applicable tier response times in section 5.3 of this appendix.
10.7.5A response plan must identify response resources with fire fighting capability. The owner or operator of a facility that handles, stores, or transports animal fats and vegetable oils that does not have adequate fire fighting resources located at
11.1For chemical agents to be identified in a response plan, they must be on the NCP Product Schedule that is maintained by EPA. (Some States have a list of approved dispersants for use within State waters. Not all of these State-approved dispersants are listed on the NCP Product Schedule.)
11.2Identification of chemical agents in the plan does not imply that their use will be authorized. Actual authorization will be governed by the provisions of the NCP and the applicable ACP.
12.1A facility owner or operator shall identify sufficient response resources available, by contract or other approved means as described in § 112.2, to respond to a medium discharge of animal fats or vegetables oils for that facility. This will require response resources capable of containing and collecting up to 36,000 gallons of oil or 10 percent of the worst case discharge, whichever is less. All equipment identified must be designed to operate in the applicable operating environment specified in Table 1 of this appendix.
12.2A facility owner or operator shall evaluate the availability of adequate temporary storage capacity to sustain the effective daily recovery capacities from equipment identified in the plan. Because of the inefficiencies of oil spill recovery devices, response plans must identify daily storage capacity equivalent to twice the effective daily recovery capacity required on-scene. This temporary storage capacity may be reduced if a facility owner or operator can demonstrate by waste stream analysis that the efficiencies of the oil recovery devices, ability to decant waste, or the availability of alternative temporary storage or disposal locations will reduce the overall volume of oily material storage.
12.3A facility owner or operator shall ensure that response planning includes the capability to arrange for disposal of recovered oil products. Specific disposal procedures will be addressed in the applicable ACP.
13.1All materials listed in this section are part of EPA's rulemaking docket and are located in the Superfund Docket, 1235 Jefferson Davis Highway, Crystal Gateway 1, Arlington, Virginia 22202, Suite 105 (Docket Numbers SPCC-2P, SPCC-3P, and SPCC-9P). The docket is available for inspection between 9 a.m. and 4 p.m., Monday through Friday, excluding Federal holidays.
Appointments to review the docket can be made by calling 703-603-9232. Docket hours are subject to change. As provided in 40 CFR part 2, a reasonable fee may be charged for copying services.
13.2The docket will mail copies of materials to requestors who are outside the Washington, DC metropolitan area. Materials may be available from other sources, as noted in this section. As provided in 40 CFR part 2, a reasonable fee may be charged for copying services. The RCRA/Superfund Hotline at 800-424-9346 may also provide additional information on where to obtain documents. To contact the RCRA/Superfund Hotline in the Washington, DC metropolitan area, dial 703-412-9810. The Telecommunications Device for the Deaf (TDD) Hotline number is 800-553-7672, or, in the Washington, DC metropolitan area, 703-412-3323.
(1) National Preparedness for Response Exercise Program (PREP). The PREP draft guidelines are available from United States Coast Guard Headquarters (G-MEP-4), 2100 Second Street, SW., Washington, DC 20593. (See 58 FR 53990-91, October 19, 1993, Notice of Availability of PREP Guidelines).
(2) “Guidance for Facility and Vessel Response Plans: Fish and Wildlife and Sensitive Environments (published in the Federal Register by DOC/NOAA at 59 FR 14713-22, March 29, 1994.). The guidance is available in the Superfund Docket (see sections 13.1 and 13.2 of this appendix).
(3) ASTM Standards. ASTM F 715, ASTM F 989, ASTM F 631-99, ASTM F 808-83 (1999). The ASTM standards are available from the American Society for Testing and Materials, 100 Barr Harbor Drive, West Conshohocken, PA 19428-2959.
(4) Response Plans for Marine Transportation-Related Facilities, Interim Final Rule. Published by USCG, DOT at 58 FR 7330-76, February 5, 1993.
(A) Owners or operators of facilities regulated under this part which pose a threat of substantial harm to the environment by discharging oil into or on navigable waters or adjoining shorelines are required to prepare and submit facility-specific response plans to EPA in accordance with the provisions in this appendix. This appendix further describes the required elements in § 112.20(h).
(B) Response plans must be sent to the appropriate EPA Regional office. Figure F-1 of this Appendix lists each EPA Regional office and the address where owners or operators must submit their response plans. Those facilities deemed by the Regional Administrator (RA) to pose a threat of significant and substantial harm to the environment will have their plans reviewed and approved by EPA. In certain cases, information required in the model response plan is similar to information currently maintained in the facility's Spill Prevention, Control, and Countermeasures (SPCC) Plan as required by 40 CFR 112.3. In these cases, owners or operators may reproduce the information and include a photocopy in the response plan.
(C) A complex may develop a single response plan with a set of core elements for all regulating agencies and separate sections for the non-transportation-related and transportation-related components, as described in § 112.20(h). Owners or operators of large facilities that handle, store, or transport oil at more than one geographically distinct location (e.g., oil storage areas at opposite ends of a single, continuous parcel of property) shall, as appropriate, develop separate sections of the response plan for each storage area.
Several sections of the response plan shall be co-located for easy access by response personnel during an actual emergency or oil discharge. This collection of sections shall be called the Emergency Response Action Plan. The Agency intends that the Action Plan contain only as much information as is necessary to combat the discharge and be arranged so response actions are not delayed. The Action Plan may be arranged in a number of ways. For example, the sections of the Emergency Response Action Plan may be photocopies or condensed versions of the
The facility information form is designed to provide an overview of the site and a description of past activities at the facility. Much of the information required by this section may be obtained from the facility's existing SPCC Plan.
1.2.1
1.2.2
1.2.3
1.2.4
1.2.5
1.2.6
1.2.7
1.2.8
(if different from Facility Address)
(A) The information provided in this section shall describe what will be needed in an actual emergency involving the discharge of oil or a combination of hazardous substances and oil discharge. The Emergency Response Information section of the plan must include the following components:
(1) The information provided in the Emergency Notification Phone List in section 1.3.1 identifies and prioritizes the names and phone numbers of the organizations and personnel that need to be notified immediately in the event of an emergency. This section shall include all the appropriate phone numbers for the facility. These numbers must be verified each time the plan is updated. The contact list must be accessible to all facility employees to ensure that, in case of a discharge, any employee on site could immediately notify the appropriate parties.
(2) The Spill Response Notification Form in section 1.3.1 creates a checklist of information that shall be provided to the National Response Center (NRC) and other response personnel. All information on this checklist must be known at the time of notification, or be in the process of being collected. This notification form is based on a similar form used by the NRC. Note: Do not delay spill notification to collect the information on the list.
(3) Section 1.3.2 provides a description of the facility's list of emergency response equipment and location of the response equipment. When appropriate, the amount of oil that emergency response equipment can handle and any limitations (e.g., launching sites) must be described.
(4) Section 1.3.3 provides information regarding response equipment tests and deployment drills. Response equipment deployment exercises shall be conducted to ensure that response equipment is operational and the personnel who would operate the equipment in a spill response are capable of deploying and operating it. Only a representative sample of each type of response equipment needs to be deployed and operated, as long as the remainder is properly maintained. If appropriate, testing of response equipment may be conducted while it is being deployed. Facilities without facility-owned response equipment must ensure that the oil spill removal organization that is identified in the response plan to provide this response equipment certifies that the deployment exercises have been met. Refer to the National Preparedness for Response Exercise Program (PREP) Guidelines (see Appendix E to this part, section 13, for availability), which satisfy Oil Pollution Act (OPA) response exercise requirements.
(5) Section 1.3.4 lists the facility response personnel, including those employed by the facility and those under contract to the facility for response activities, the amount of time needed for personnel to respond, their responsibility in the case of an emergency, and their level of response training. Three different forms are included in this section. The Emergency Response Personnel List shall be composed of all personnel employed by the facility whose duties involve responding to emergencies, including oil discharges, even when they are not physically present at the site. An example of this type of person would be the Building Engineer-in-Charge or Plant Fire Chief. The second form is a list of the Emergency Response Contractors (both primary and secondary) retained by the facility. Any changes in contractor status must be reflected in updates to the response plan. Evidence of contracts with response contractors shall be included in this section so that the availability of resources can be verified. The last form is the Facility Response Team List, which shall be composed of both emergency response personnel (referenced by job title/position) and emergency response contractors, included in one of the two lists described above, that will respond immediately upon discovery of an oil discharge or other emergency (i.e., the first people to respond). These are to be persons normally on the facility premises or primary response contractors. Examples of these personnel would be the Facility Hazardous Materials (HAZMAT) Spill Team 1, Facility Fire Engine Company 1, Production Supervisor, or Transfer Supervisor. Company personnel must be able to respond immediately and adequately if contractor support is not available.
(6) Section 1.3.5 lists factors that must, as appropriate, be considered when preparing an evacuation plan.
(7) Section 1.3.6 references the responsibilities of the qualified individual for the facility in the event of an emergency.
(B) The information provided in the emergency response section will aid in the assessment of the facility's ability to respond to a worst case discharge and will identify additional assistance that may be needed. In addition, the facility owner or operator may want to produce a wallet-size card containing a checklist of the immediate response and notification steps to be taken in the event of an oil discharge.
Date of Last Update:___
3. Chemicals Stored (Dispersants listed on EPA's NCP Product Schedule)
Were appropriate procedures used to receive approval for use of dispersants in accordance with the NCP (40 CFR 300.910) and the Area Contingency Plan (ACP), where applicable?___ (Y/N).
Name and State of On-Scene Coordinator (OSC) authorizing use: ___ .
Date Authorized: ___ .
4. Dispersant Dispensing Equipment—Operational Status: ___ .
7. Communication Equipment (include operating frequency and channel and/or cellular phone numbers)—Operational Status: ___
8. Fire Fighting and Personnel Protective Equipment—Operational Status: ___
9. Other (e.g., Heavy Equipment, Boats and Motors)—Operational Status: ___
Date of Last Update:____
Date of Last Update:____
1.3.5.1Based on the analysis of the facility, as discussed elsewhere in the plan, a facility-wide evacuation plan shall be developed. In addition, plans to evacuate parts of the facility that are at a high risk of exposure in the event of a discharge or other release must be developed. Evacuation routes must be shown on a diagram of the facility (see section 1.9 of this appendix). When developing evacuation plans, consideration must be given to the following factors, as appropriate:
(1) Location of stored materials;
(2) Hazard imposed by discharged material;
(3) Discharge flow direction;
(4) Prevailing wind direction and speed;
(5) Water currents, tides, or wave conditions (if applicable);
(6) Arrival route of emergency response personnel and response equipment;
(7) Evacuation routes;
(8) Alternative routes of evacuation;
(9) Transportation of injured personnel to nearest emergency medical facility;
(10) Location of alarm/notification systems;
(11) The need for a centralized check-in area for evacuation validation (roll call);
(12) Selection of a mitigation command center; and
(13) Location of shelter at the facility as an alternative to evacuation.
1.3.5.2One resource that may be helpful to owners or operators in preparing this section of the response plan is The
1.3.5.3As specified in § 112.20(h)(1)(vi), the facility owner or operator must reference existing community evacuation plans, as appropriate.
The duties of the designated qualified individual are specified in § 112.20(h)(3)(ix). The qualified individual's duties must be described and be consistent with the minimum requirements in § 112.20(h)(3)(ix). In addition, the qualified individual must be identified with the Facility Information in section 1.2 of the response plan.
This section requires the facility owner or operator to examine the facility's operations closely and to predict where discharges could occur. Hazard evaluation is a widely used industry practice that allows facility owners or operators to develop a complete understanding of potential hazards and the response actions necessary to address these hazards.
The Tank and Surface Impoundment (SI) forms, or their equivalent, that are part of this section must be completed according to the directions below. (“Surface Impoundment” means a facility or part of a facility which is a natural topographic depression, man-made excavation, or diked area formed primarily of earthen materials (although it may be lined with man-made materials), which is designed to hold an accumulation of liquid wastes or wastes containing free liquids, and which is not an injection well or a seepage facility.) Similar worksheets, or their equivalent, must be developed for any other type of storage containers.
(1) List each tank at the facility with a separate and distinct identifier. Begin aboveground tank identifiers with an “A” and belowground tank identifiers with a “B”, or submit multiple sheets with the aboveground tanks and belowground tanks on separate sheets.
(2) Use gallons for the maximum capacity of a tank; and use square feet for the area.
(3) Using the appropriate identifiers and the following instructions, fill in the appropriate forms:
(a) Tank or SI number—Using the aforementioned identifiers (A or B) or multiple reporting sheets, identify each tank or SI at the facility that stores oil or hazardous materials.
(b) Substance Stored—For each tank or SI identified, record the material that is stored therein. If the tank or SI is used to store more than one material, list all of the stored materials.
(c) Quantity Stored—For each material stored in each tank or SI, report the average volume of material stored on any given day.
(d) Tank Type or Surface Area/Year—For each tank, report the type of tank (e.g., floating top), and the year the tank was originally installed. If the tank has been refabricated, the year that the latest refabrication was completed must be recorded in parentheses next to the year installed. For
(e) Maximum Capacity—Record the operational maximum capacity for each tank and SI. If the maximum capacity varies with the season, record the upper and lower limits.
(f) Failure/Cause—Record the cause and date of any tank or SI failure which has resulted in a loss of tank or SI contents.
(4) Using the numbers from the tank and SI forms, label a schematic drawing of the facility. This drawing shall be identical to any schematic drawings included in the SPCC Plan.
(5) Using knowledge of the facility and its operations, describe the following in writing:
(a) The loading and unloading of transportation vehicles that risk the discharge of oil or release of hazardous substances during transport processes. These operations may include loading and unloading of trucks, railroad cars, or vessels. Estimate the volume of material involved in transfer operations, if the exact volume cannot be determined.
(b) Day-to-day operations that may present a risk of discharging oil or releasing a hazardous substance. These activities include scheduled venting, piping repair or replacement, valve maintenance, transfer of tank contents from one tank to another, etc. (not including transportation-related activities). Estimate the volume of material involved in these operations, if the exact volume cannot be determined.
(c) The secondary containment volume associated with each tank and/or transfer point at the facility. The numbering scheme developed on the tables, or an equivalent system, must be used to identify each containment area. Capacities must be listed for each individual unit (tanks, slumps, drainage traps, and ponds), as well as the facility total.
(d) Normal daily throughput for the facility and any effect on potential discharge volumes that a negative or positive change in that throughput may cause.
The vulnerability analysis shall address the potential effects (i.e., to human health, property, or the environment) of an oil discharge. Attachment C-III to Appendix C to this part provides a method that owners or operators shall use to determine appropriate distances from the facility to fish and wildlife and sensitive environments. Owners or operators can use a comparable formula that is considered acceptable by the RA. If a comparable formula is used, documentation of the reliability and analytical soundness of the formula must be attached to the response plan cover sheet. This analysis must be prepared for each facility and, as appropriate, must discuss the vulnerability of:
(1) Water intakes (drinking, cooling, or other);
(2) Schools;
(3) Medical facilities;
(4) Residential areas;
(5) Businesses;
(6) Wetlands or other sensitive environments;
(7) Fish and wildlife;
(8) Lakes and streams;
(9) Endangered flora and fauna;
(10) Recreational areas;
(11) Transportation routes (air, land, and water);
(12) Utilities; and
(13) Other areas of economic importance (e.g., beaches, marinas) including terrestrially sensitive environments, aquatic environments, and unique habitats.
Each owner or operator shall analyze the probability of a discharge occurring at the facility. This analysis shall incorporate factors such as oil discharge history, horizontal range of a potential discharge, and vulnerability to natural disaster, and shall, as appropriate, incorporate other factors such as tank age. This analysis will provide information for developing discharge scenarios for a worst case discharge and small and medium discharges and aid in the development of techniques to reduce the size and frequency of discharges. The owner or operator may need to research the age of the tanks the oil discharge history at the facility.
Briefly describe the facility's reportable oil spill
(1) Date of discharge(s);
(2) List of discharge causes;
(3) Material(s) discharged;
(4) Amount discharged in gallons;
(5) Amount of discharge that reached navigable waters, if applicable;
(6) Effectiveness and capacity of secondary containment;
(7) Clean-up actions taken;
(8) Steps taken to reduce possibility of recurrence;
(9) Total oil storage capacity of the tank(s) or impoundment(s) from which the material discharged;
(10) Enforcement actions;
(11) Effectiveness of monitoring equipment; and
(12) Description(s) of how each oil discharge was detected.
In this section, the owner or operator is required to provide a description of the facility's worst case discharge, as well as a small and medium discharge, as appropriate. A multi-level planning approach has been chosen because the response actions to a discharge (
1.5.1.1To address multi-level planning requirements, the owner or operator must consider types of facility-specific discharge scenarios that may contribute to a small or medium discharge. The scenarios shall account for all the operations that take place at the facility, including but not limited to:
(1) Loading and unloading of surface transportation;
(2) Facility maintenance;
(3) Facility piping;
(4) Pumping stations and sumps;
(5) Oil storage tanks;
(6) Vehicle refueling; and
(7) Age and condition of facility and components.
1.5.1.2The scenarios shall also consider factors that affect the response efforts required by the facility. These include but are not limited to:
(1) Size of the discharge;
(2) Proximity to downgradient wells, waterways, and drinking water intakes;
(3) Proximity to fish and wildlife and sensitive environments;
(4) Likelihood that the discharge will travel offsite (
(5) Location of the material discharged (
(6) Material discharged;
(7) Weather or aquatic conditions (
(8) Available remediation equipment;
(9) Probability of a chain reaction of failures; and
(10) Direction of discharge pathway.
1.5.2.1In this section, the owner or operator must identify the worst case discharge volume at the facility. Worksheets for production and non-production facility owners or operators to use when calculating worst case discharge are presented in Appendix D to this part. When planning for the worst case discharge response, all of the aforementioned factors listed in the small and medium discharge section of the response plan shall be addressed.
1.5.2.2For onshore storage facilities and production facilities, permanently manifolded oil storage tanks are defined as tanks that are designed, installed, and/or operated in such a manner that the multiple tanks function as one storage unit (i.e., multiple tank volumes are equalized). In this section of the response plan, owners or operators must provide evidence that oil storage tanks with common piping or piping systems are not operated as one unit. If such evidence is provided and is acceptable to the RA, the worst case discharge volume shall be based on the combined oil storage capacity of all manifold tanks or the oil storage capacity of the largest single oil storage tank within the secondary containment area, whichever is greater. For permanently manifolded oil storage tanks that function as one storage unit, the worst case discharge shall be based on the combined oil storage capacity of all manifolded tanks or the oil storage capacity of the largest single tank within a secondary containment area, whichever is greater. For purposes of the worst case discharge calculation, permanently manifolded oil storage tanks that are separated by internal divisions for each tank are considered to be single tanks and individual manifolded tank volumes are not combined.
In this section, the facility owner or operator shall provide a detailed description of the procedures and equipment used to detect discharges. A section on discharge detection by personnel and a discussion of automated discharge detection, if applicable, shall be included for both regular operations and after hours operations. In addition, the facility owner or operator shall discuss how the reliability of any automated system will be checked and how frequently the system will be inspected.
In this section, facility owners or operators shall describe the procedures and personnel that will detect any discharge of oil or release of a hazardous substance. A thorough discussion of facility inspections must be included. In addition, a description of initial response actions shall be addressed. This section shall reference section 1.3.1 of the response plan for emergency response information.
In this section, facility owners or operators must describe any automated discharge detection equipment that the facility has in place. This section shall include a discussion of overfill alarms, secondary containment sensors, etc. A discussion of the plans to verify an automated alarm and the actions to be taken once verified must also be included.
In this section, facility owners or operators must explain in detail how to implement the facility's emergency response plan by describing response actions to be carried out under the plan to ensure the safety of the facility and to mitigate or prevent discharges described in section 1.5 of the response plan. This section shall include the identification of response resources for small, medium, and worst case discharges; disposal plans; and containment and drainage planning. A list of those personnel who would be involved in the cleanup shall be identified. Procedures that the facility will use, where appropriate or necessary, to update their plan after an oil discharge event and the time frame to update the plan must be described.
1.7.1.1Once the discharge scenarios have been identified in section 1.5 of the response plan, the facility owner or operator shall identify and describe implementation of the response actions. The facility owner or operator shall demonstrate accessibility to the proper response personnel and equipment to effectively respond to all of the identified discharge scenarios. The determination and demonstration of adequate response capability are presented in Appendix E to this part. In addition, steps to expedite the cleanup of oil discharges must be discussed. At a minimum, the following items must be addressed:
(1) Emergency plans for spill response;
(2) Additional response training;
(3) Additional contracted help;
(4) Access to additional response equipment/experts; and
(5) Ability to implement the plan including response training and practice drills.
1.7.1.2A recommended form detailing immediate actions follows.
1.7.2.1Facility owners or operators must describe how and where the facility intends to recover, reuse, decontaminate, or dispose of materials after a discharge has taken place. The appropriate permits required to transport or dispose of recovered materials according to local, State, and Federal requirements must be addressed. Materials that must be accounted for in the disposal plan, as appropriate, include:
(1) Recovered product;
(2) Contaminated soil;
(3) Contaminated equipment and materials, including drums, tank parts, valves, and shovels;
(4) Personnel protective equipment;
(5) Decontamination solutions;
(6) Adsorbents; and
(7) Spent chemicals.
1.7.2.2These plans must be prepared in accordance with Federal (e.g., the Resource Conservation and Recovery Act [RCRA]), State, and local regulations, where applicable. A copy of the disposal plans from the facility's SPCC Plan may be inserted with this section, including any diagrams in those plans.
A proper plan to contain and control a discharge through drainage may limit the threat of harm to human health and the environment. This section shall describe how to contain and control a discharge through drainage, including:
(1) The available volume of containment (use the information presented in section 1.4.1 of the response plan);
(2) The route of drainage from oil storage and transfer areas;
(3) The construction materials used in drainage troughs;
(4) The type and number of valves and separators used in the drainage system;
(5) Sump pump capacities;
(6) The containment capacity of weirs and booms that might be used and their location (see section 1.3.2 of this appendix); and
(7) Other cleanup materials.
In addition, a facility owner or operator must meet the inspection and monitoring requirements for drainage contained in 40 CFR part 112, subparts A through C. A copy of the containment and drainage plans that are required in 40 CFR part 112, subparts A through C may be inserted in this section, including any diagrams in those plans.
The general permit for stormwater drainage may contain additional requirements.
The owner or operator must develop programs for facility response training and for drills/exercises according to the requirements of 40 CFR 112.21. Logs must be kept for facility drills/exercises, personnel response training, and spill prevention meetings. Much of the recordkeeping information required by this section is also contained in the SPCC Plan required by 40 CFR 112.3. These logs may be included in the facility response plan or kept as an annex to the facility response plan.
Under 40 CFR 112.7(e), you must include the written procedures and records of inspections for each facility in the SPCC Plan. You must include the inspection records for each container, secondary containment, and item of response equipment at the facility. You must cross-reference the records of inspections of each container and secondary containment required by 40 CFR 112.7(e) in the facility response plan. The inspection record of response equipment is a new requirement in this plan. Facility self-inspection requires two-steps: (1) a checklist of things to inspect; and (2) a method of recording the actual inspection and its findings. You must note the date of each inspection. You must keep facility response plan records for five years. You must keep SPCC records for three years.
The tank inspection checklist presented below has been included as guidance during inspections and monitoring. Similar requirements exist in 40 CFR part 112, subparts A through C. Duplicate information from the SPCC Plan may be photocopied and inserted in this section. The inspection checklist consists of the following items:
Using the Emergency Response Equipment List provided in section 1.3.2 of the response plan, describe each type of response equipment, checking for the following:
1. Inventory (item and quantity);
2. Storage location;
3. Accessibility (time to access and respond);
4. Operational status/condition;
5. Actual use/testing (last test date and frequency of testing); and
6. Shelf life (present age, expected replacement date).
Inspect the secondary containment (as described in sections 1.4.1 and 1.7.2 of the response plan), checking the following:
(A) CWA section 311(j)(5), as amended by OPA, requires the response plan to contain a description of facility drills/exercises. According to 40 CFR 112.21(c), the facility owner or operator shall develop a program of facility response drills/exercises, including evaluation procedures. Following the PREP guidelines (see Appendix E to this part, section 13, for availability) would satisfy a facility's requirements for drills/exercises under this part. Alternately, under § 112.21(c), a facility owner or operator may develop a program that is not based on the PREP guidelines. Such a program is subject to approval by the Regional Administrator based on the description of the program provided in the response plan.
(B) The PREP Guidelines specify that the facility conduct internal and external drills/exercises. The internal exercises include: qualified individual notification drills, spill management team tabletop exercises, equipment deployment exercises, and unannounced exercises. External exercises include Area Exercises. Credit for an Area or Facility-specific Exercise will be given to the facility for an actual response to a discharge in the area if the plan was utilized for response to the discharge and the objectives of the Exercise were met and were properly evaluated, documented, and self-certified.
(C) Section 112.20(h)(8)(ii) requires the facility owner or operator to provide a description of the drill/exercise program to be carried out under the response plan. Qualified Individual Notification Drill and Spill Management Team Tabletop Drill logs shall be provided in sections 1.8.2.1 and 1.8.2.2, respectively. These logs may be included in the facility response plan or kept as an annex to the facility response plan. See section 1.3.3 of this appendix for Equipment Deployment Drill Logs.
Section 112.21(a) requires facility owners or operators to develop programs for facility response training. Facility owners or operators are required by § 112.20(h)(8)(iii) to provide a description of the response training program to be carried out under the response plan. A facility's training program can be based on the USCG's Training Elements for Oil Spill Response, to the extent applicable to facility operations, or another response training program acceptable to the RA. The training elements are available from the USCG Office of Response (G-MOR) at (202) 267-0518 or fax (202) 267-4085. Personnel response training logs and discharge prevention meeting logs shall be included in sections 1.8.3.1 and 1.8.3.2 of the response plan respectively. These logs may be included in the facility response plan or kept as an annex to the facility response plan.
The facility-specific response plan shall include the following diagrams. Additional diagrams that would aid in the development of response plan sections may also be included.
According to 40 CFR 112.7(g) facilities are required to maintain a certain level of security, as appropriate. In this section, a description of the facility security shall be provided and include, as appropriate:
A three-page form has been developed to be completed and submitted to the RA by owners or operators who are required to prepare and submit a facility-specific response plan. The cover sheet (Attachment F-1) must accompany the response plan to provide the Agency with basic information concerning the facility. This section will describe the Response Plan Cover Sheet and provide instructions for its completion.
(1)
(2)
(3)
(4)
(5)
(6) North American Industrial Classification System (NAICS) Code: Enter the facility's NAICS code as determined by the Office of Management and Budget (this information may be obtained from public library resources.)
(7)
(8)
(9)
(10)
(11)
Using the flowchart provided in Attachment C-I to Appendix C to this part, mark the appropriate answer to each question. Explanations of referenced terms can be found in Appendix C to this part. If a comparable formula to the ones described in Attachment C-III to Appendix C to this part is used to calculate the planning distance, documentation of the reliability and analytical soundness of the formula must be attached to the response plan cover sheet.
Complete this block after all other questions have been answered.
CONCAWE. 1982. Methodologies for Hazard Analysis and Risk Assessment in the Petroleum Refining and Storage Industry. Prepared by CONCAWE's Risk Assessment Ad-hoc Group.
U.S. Department of Housing and Urban Development. 1987. Siting of HUD-Assisted Projects Near Hazardous Facilities: Acceptable Separation Distances from Explosive and Flammable Hazards. Prepared by the Office of Environment and Energy, Environmental Planning Division, Department of Housing and Urban Development. Washington, DC.
U.S. DOT, FEMA and U.S. EPA. Handbook of Chemical Hazard Analysis Procedures.
U.S. DOT, FEMA and U.S. EPA. Technical Guidance for Hazards Analysis: Emergency
The National Response Team. 1987. Hazardous Materials Emergency Planning Guide. Washington, DC.
The National Response Team. 1990. Oil Spill Contingency Planning, National Status: A Report to the President. Washington, DC. U.S. Government Printing Office.
Offshore Inspection and Enforcement Division. 1988. Minerals Management Service, Offshore Inspection Program: National Potential Incident of Noncompliance (PINC) List. Reston, VA.
This cover sheet will provide EPA with basic information concerning the facility. It must accompany a submitted facility response plan. Explanations and detailed instructions can be found in Appendix F. Please type or write legibly in blue or black ink. Public reporting burden for the collection of this information is estimated to vary from 1 hour to 270 hours per response in the first year, with an average of 5 hours per response. This estimate includes time for reviewing instructions, searching existing data sources, gathering the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate of this information, including suggestions for reducing this burden to: Chief, Information Policy Branch, Mail Code: PM-2822, U.S. Environmental Protection Agency, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington D.C. 20503.
Does the facility transfer oil over-water
Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and, within any storage area, does the facility lack secondary containment
Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and is the facility located at a distance
Does the facility have a total oil storage capacity greater than or equal to 1 million gallons and has the facility experienced a reportable oil spill
I certify under penalty of law that I have personally examined and am familiar with the information submitted in this document, and that based on my inquiry of those individuals responsible for obtaining information, I believe that the submitted information is true, accurate, and complete.
Sec. 311(f)(2), 86 Stat. 867 (33 U.S.C. 1251 (1972)).
This subpart establishes size classifications and associated liability limits for small onshore oil storage facilities with fixed capacity of 1,000 barrels or less.
This subpart applies to all onshore oil storage facilities with fixed capacity of 1,000 barrels or less. When a discharge to the waters of the United States occurs from such facilities and when removal of said discharge is performed by the United States Government pursuant to the provisions of subsection 311(c)(1) of the Act, the liability of the owner or operator and the facility will be limited to the amounts specified in § 113.4.
As used in this subpart, the following terms shall have the meanings indicated below:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
Unless the United States can show that oil was discharged as a result of willful negligence or willful misconduct within the privity and knowledge of the owner or operator, the following limits of liability are established for fixed onshore facilities in the classes specified:
(a) Aboveground storage.
(b) Belowground storage.
This subpart does not apply to:
(a) Those facilities whose average daily oil throughout is more than their fixed oil storage capacity.
(b) Vehicles and rolling stock.
Nothing herein shall be construed to limit the liability of any facility under State or local law or under any Federal law other than section 311 of the Act, nor shall the liability of any facility for any charges or damages under State or local law reduce its liability to the Federal Government under section 311 of the Act, as limited by this subpart.
Secs. 311(b)(2)(A) and 501(a), Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).
This regulation designates hazardous substances under section 311(b)(2)(A) of the Federal Water Pollution Control Act (the Act). The regulation applies to discharges of substances designated in Table 116.4.
As used in this part, all terms shall have the meaning defined in the Act and as given below:
(1) All waters which are presently used, or were used in the past, or may be susceptible to use as a means to transport interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide, and including adjacent wetlands; the term
(2) Tributaries of navigable waters of the United States, including adjacent wetlands;
(3) Interstate waters, including wetlands; and
(4) All other waters of the United States such as intrastate lakes, rivers, streams, mudflats, sandflats and wetlands, the use, degradation or destruction of which affect interstate commerce including, but not limited to:
(i) Intrastate lakes, rivers, streams, and wetlands which are utilized by interstate travelers for recreational or other purposes; and
(ii) Intrastate lakes, rivers, streams, and wetlands from which fish or shellfish are or could be taken and sold in interstate commerce; and
(iii) Intrastate lakes, rivers, streams, and wetlands which are utilized for industrial purposes by industries in interstate commerce.
A discharge
The elements and compounds appearing in Tables 116.4 A and B are designated as hazardous substances in accordance with section 311(b)(2)(A) of the Act. This designation includes any isomers and hydrates, as well as any solutions and mixtures containing these substances. Synonyms and Chemical Abstract System (CAS) numbers have been added for convenience of the user only. In case of any disparity the common names shall be considered the designated substance.
Secs. 311 and 501(a), Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), (“the Act”) and Executive Order 11735, superseded by Executive Order 12777, 56 FR 54757.
As used in this part, all terms shall have the meanings stated in 40 CFR part 116.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(1) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(2) Interstate waters, including interstate wetlands;
(3) All other waters such as intrastate lakes, rivers, streams, (including intermittent streams), mudflats, sandflats, and wetlands, the use, degradation or destruction of which would affect or could affect interstate or foreign commerce including any such waters:
(i) Which are or could be used by interstate or foreign travelers for recreational or other purposes;
(ii) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce;
(iii) Which are used or could be used for industrial purposes by industries in interstate commerce;
(4) All impoundments of waters otherwise defined as navigable waters under this paragraph;
(5) Tributaries of waters identified in paragraphs (i) (1) through (4) of this section, including adjacent wetlands; and
(6) Wetlands adjacent to waters identified in paragraphs (i) (1) through (5) of this section (“Wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally included playa lakes, swamps, marshes, bogs, and similar areas such as sloughs, prairie potholes, wet meadows, prairie river overflows, mudflats, and natural ponds):
(j)
NPDES equals National Pollutant Discharge Elimination System. RQ equals reportable quantity.
Each substance in Table 117.3 that is listed in Table 302.4, 40 CFR part 302, is assigned the reportable quantity listed in Table 302.4 for that substance.
The first number under the column headed “RQ” is the reportable quantity in pounds. The number in parentheses is the metric equivalent in kilograms. For convenience, the table contains a column headed “Category” which lists the code letters “X”, “A”, “B”, “C”, and “D” associated with reportable quantities of 1, 10, 100, 1000, and 5000 pounds, respectively.
This regulation sets forth a determination of the reportable quantity for each substance designated as hazardous in 40 CFR part 116. The regulation applies to quantities of designated substances equal to or greater than the reportable quantities, when discharged into or upon the navigable waters of the United States, adjoining shorelines, into or upon the contiguous zone, or beyond the contiguous zone as provided in section 311(b)(3) of the Act, except to the extent that the owner or operator can show such that discharges are made:
(a) In compliance with a permit issued under the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1401
(b) In compliance with approved water treatment plant operations as specified by local or State regulations pertaining to safe drinking water;
(c) Pursuant to the label directions for application of a pesticide product registered under section 3 or section 24 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended (7 U.S.C. 136
(d) In compliance with the regulations issued under section 3004 or with permit conditions issued pursuant to section 3005 of the Resource Conservation and Recovery Act (90 Stat. 2795; 42 U.S.C. 6901);
(e) In compliance with instructions of the On-Scene Coordinator pursuant to 40 CFR part 1510 (the National Oil and Hazardous Substances Pollution Plan) or 33 CFR 153.10(e) (Pollution by Oil and Hazardous Substances) or in accordance with applicable removal regulations as required by section 311(j)(1)(A);
(f) In compliance with a permit issued under § 165.7 of Title 14 of the State of California Administrative Code;
(g) From a properly functioning inert gas system when used to provide inert gas to the cargo tanks of a vessel;
(h) From a permitted source and are excluded by § 117.12 of this regulation;
(i) To a POTW and are specifically excluded or reserved in § 117.13; or
(j) In compliance with a permit issued under section 404(a) of the Clean Water Act or when the discharges are exempt from such requirements by section 404(f) or 404(r) of the Act (33 U.S.C. 1344(a), (f), (r)).
(a) This regulation does not apply to:
(1) Discharges in compliance with a permit under section 402 of this Act;
(2) Discharges resulting from circumstances identified, reviewed and made a part of the public record with respect to a permit issued or modified under section 402 of this Act, and subject to a condition in such permit;
(3) Continuous or anticipated intermittent discharges from a point source, identified in a permit or permit application under section 402 of this Act, which are caused by events occurring within the scope of the relevant operating or treatment systems; or
(b) A discharge is “in compliance with a permit issued under section 402 of this Act” if the permit contains an effluent limitation specifically applicable to the substance discharged or an effluent limitation applicable to another waste parameter which has been specifically identified in the permit as intended to limit such substance, and the discharge is in compliance with the effluent limitation.
(c) A discharge results “from circumstances identified, reviewed and made a part of the public record with respect to a permit issued or modified under section 402 of the Act, and subject to a condition in such permit,” whether or not the discharge is in compliance with the permit, where:
(1) The permit application, the permit, or another portion of the public record contains documents that specifically identify:
(i) The substance and the amount of the substance; and
(ii) The origin and source of the substance; and
(iii) The treatment which is to be provided for the discharge either by:
(A) An on-site treatment system separate from any treatment system treating the permittee's normal discharge; or
(B) A treatment system designed to treat the permittee's normal discharge and which is additionally capable of treating the identified amount of the identified substance; or
(C) Any combination of the above; and
(2) The permit contains a requirement that the substance and amounts of the substance, as identified in § 117.12(c)(1)(i) and § 117.12(c)(1)(ii) be treated pursuant to § 117.12(c)(1)(iii) in the event of an on-site release; and
(3) The treatment to be provided is in place.
(d) A discharge is a “continuous or anticipated intermittent discharge from a point source, identified in a permit or permit application under section 402 of this Act, and caused by events occurring within the scope of the relevant operating or treatment systems,” whether or not the discharge is in compliance with the permit, if:
(1) The hazardous substance is discharged from a point source for which a valid permit exists or for which a permit application has been submitted; and
(2) The discharge of the hazardous substance results from:
(i) The contamination of noncontact cooling water or storm water, provided that such cooling water or storm water is not contaminated by an on-site spill of a hazardous substance; or
(ii) A continuous or anticipated intermittent discharge of process waste water, and the discharge originates within the manufacturing or treatment systems; or
(iii) An upset or failure of a treatment system or of a process producing a continuous or anticipated intermittent discharge where the upset or failure results from a control problem, an operator error, a system failure or malfunction, an equipment or system startup or shutdown, an equipment wash, or a production schedule change, provided that such upset or failure is not caused by an on-site spill of a hazardous substance.
(a) [Reserved]
(b) These regulations apply to all discharges of reportable quantities to a POTW, where the discharge originates from a mobile source, except where such source has contracted with, or otherwise received written permission from the owners or operators of the POTW to discharge that quantity, and the mobile source can show that prior to accepting the substance from an industrial discharger, the substance had been treated to comply with any effluent limitation under sections 301, 302 or 306 or pretreatment standard under section 307 applicable to that facility.
Notwithstanding any other provision of this part, the Administrator of the Environmental Protection Agency may, on a case-by-case basis, allow the discharge of designated hazardous substances in connection with research or demonstration projects relating to the prevention, control, or abatement of hazardous substance pollution. The Administrator will allow such a discharge only where he determines that the expected environmental benefit from such a discharge will outweigh the potential hazard associated with the discharge.
Any person in charge of a vessel or an onshore or an offshore facility shall, as soon as he has knowledge of any discharge of a designated hazardous substance from such vessel or facility in quantities equal to or exceeding in any 24-hour period the reportable quantity determined by this part, immediately notify the appropriate agency of the United States Government of such discharge. Notice shall be given in accordance with such procedures as the Secretary of Transportation has set forth in 33 CFR 153.203. This provision applies to all discharges not specifically excluded or reserved by another section of these regulations.
In any case where a substance designated as hazardous in 40 CFR part 116 is discharged from any vessel or onshore or offshore facility in a quantity equal to or exceeding the reportable quantity determined by this part, the owner, operator or person in charge will be liable, pursuant to section 311 (f) and (g) of the Act, to the United States Government for the actual costs incurred in the removal of such substance, subject only to the defenses and monetary limitations enumerated in section 311 (f) and (g) of the Act.
Sec. 21 (b) and (c), 84 Stat. 91 (33 U.S.C. 1171(b) (1970)); Reorganization Plan No. 3 of 1970.
As used in this part, the following terms shall have the meanings indicated below:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a) A certification made by a certifying agency shall include the following:
(1) The name and address of the applicant;
(2) A statement that the certifying agency has either (i) examined the application made by the applicant to the licensing or permitting agency (specifically identifying the number or code affixed to such application) and bases its certification upon an evaluation of the information contained in such application which is relevant to water quality considerations, or (ii) examined other information furnished by the applicant sufficient to permit the certifying agency to make the statement described in paragraph (a)(3) of this section;
(3) A statement that there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards;
(4) A statement of any conditions which the certifying agency deems necessary or desirable with respect to the discharge of the activity; and
(5) Such other information as the certifying agency may determine to be appropriate.
(b) The certifying agency may modify the certification in such manner as may be agreed upon by the certifying agency, the licensing or permitting agency, and the Regional Administrator.
A licensing or permitting agency shall require an applicant for a license or permit to include in the form of application such information relating to water quality considerations as may be agreed upon by the licensing or permitting agency and the Administrator.
(a) Upon receipt from an applicant of an application for a license or permit without an accompanying certification, the licensing or permitting agency shall either: (1) Forward one copy of the application to the appropriate certifying agency and two copies to the Regional Administrator, or (2) forward three copies of the application to the Regional Administrator, pursuant to an agreement between the licensing or permitting agency and the Administrator that the Regional Administrator will transmit a copy of the application to the appropriate certifying agency. Upon subsequent receipt from an applicant of a certification, the licensing or permitting agency shall forward a copy of such certification to the Regional Administrator, unless such certification shall have been made by the Regional Administrator pursuant to § 121.24.
(b) Upon receipt from an applicant of an application for a license or permit with an accompanying certification, the licensing or permitting agency shall forward two copies of the application and certification to the Regional Administrator.
(c) Only those portions of the application which relate to water quality considerations shall be forwarded to the Regional Administrator.
If the documents forwarded to the Regional Administrator by the licensing or permitting agency pursuant to § 121.11 do not contain sufficient information for the Regional Administrator to make the determination provided for in § 121.13, the Regional Administrator may request, and the licensing or permitting agency shall obtain from the applicant and forward to the Regional Administrator, any supplemental information as may be required to make such determination.
The Regional Administrator shall review the application, certification, and any supplemental information provided in accordance with §§ 121.11 and 121.12 and if the Regional Administrator determines there is reason to believe that a discharge may affect the quality of the waters of any State or States other than the State in which the discharge originates, the Regional Administrator
The Regional Administrator shall forward to each affected State a copy of the material provided in accordance with § 121.11.
When a licensing or permitting agency holds a public hearing on the objection of an affected State, notice of such objection, including the grounds for such objection, shall be forwarded to the Regional Administrator by the licensing or permitting agency no later than 30 days prior to such hearing. The Regional Administrator shall at such hearing submit his evaluation with respect to such objection and his recommendations as to whether and under what conditions the license or permit should be issued.
The certification requirement with respect to an application for a license or permit shall be waived upon:
(a) Written notification from the State or interstate agency concerned that it expressly waives its authority to act on a request for certification; or
(b) Written notification from the licensing or permitting agency to the Regional Administrator of the failure of the State or interstate agency concerned to act on such request for certification within a reasonable period of time after receipt of such request, as determined by the licensing or permitting agency (which period shall generally be considered to be 6 months, but in any event shall not exceed 1 year).
Certification by the Administrator that the discharge resulting from an activity requiring a license or permit will not violate applicable water quality standards will be required where:
(a) Standards have been promulgated, in whole or in part, by the Administrator pursuant to section 10(c)(2) of the Act:
(b) Water quality standards have been established, but no State or interstate agency has authority to give such a certification.
An applicant for certification from the Administrator shall submit to the Regional Administrator a complete description of the discharge involved in the activity for which certification is sought, with a request for certification signed by the applicant. Such description shall include the following:
(a) The name and address of the applicant;
(b) A description of the facility or activity, and of any discharge into navigable waters which may result from the conduct of any activity including, but not limited to, the construction or operation of the facility, including the biological, chemical, thermal, and other characteristics of the discharge, and the location or locations at which such discharge may enter navigable waters;
(c) A description of the function and operation of equipment or facilities to treat wastes or other effluents which may be discharged, including specification of the degree of treatment expected to be attained;
(d) The date or dates on which the activity will begin and end, if known, and the date or dates on which the discharge will take place;
(e) A description of the methods and means being used or proposed to monitor the quality and characteristics of the discharge and the operation of equipment or facilities employed in the treatment or control of wastes or other effluents.
The Regional Administrator will provide public notice of each request for certification by mailing to State, County, and municipal authorities, heads of State agencies responsible for water quality improvement, and other parties known to be interested in the matter, including adjacent property owners and conservation organizations, or may provide such notice in a newspaper of general circulation in the area in which the activity is proposed to be conducted if the Regional Administrator deems mailed notice to be impracticable. Interested parties shall be provided an opportunity to comment on such request in such manner as the Regional Administrator deems appropriate. All interested and affected parties will be given reasonable opportunity to present evidence and testimony at a public hearing on the question whether to grant or deny certification if the Regional Administrator determines that such a hearing is necessary or appropriate.
If, after considering the complete description, the record of a hearing, if any, held pursuant to § 121.23, and such other information and data as the Regional Administrator deems relevant, the Regional Administrator determines that there is reasonable assurance that the proposed activity will not result in a violation of applicable water quality standards, he shall so certify. If the Regional Administrator determines that no water quality standards are applicable to the waters which might be affected by the proposed activity, he shall so notify the applicant and the licensing or permitting agency in writing and shall provide the licensing or permitting agency with advice, suggestions, and recommendations with respect to conditions to be incorporated in any license or permit to achieve compliance with the purpose of this Act. In such case, no certification shall be required.
(a) In any case where:
(1) A license or permit was issued without certification due to the absence of applicable water quality standards; and
(2) Water quality standards applicable to the waters into which the licensed or permitted activity may discharge are subsequently established; and
(3) The Administrator is the certifying agency because:
(i) No State or interstate agency has authority to certify; or
(ii) Such new standards were promulgated by the Administrator pursuant to section 10(c)(2) of the Act; and
(4) The Regional Administrator determines that such uncertified activity is violating water quality standards;
(b) Where a license or permit is suspended pursuant to paragraph (a) of this section, and where the licensee or permittee subsequently takes action which in the Regional Administrator's opinion will result in compliance with applicable water quality standards, the Regional Administrator shall then notify the licensing or permitting agency that there is reasonable assurance that the licensed or permitted activity will comply with applicable water quality standards.
Where any facility or activity has received certification pursuant to § 121.24 in connection with the issuance of a license or permit for construction, and where such facility or activity is not required to obtain an operating license or permit, the Regional Administrator or his representative, prior to the initial operation of such facility or activity, shall be afforded the opportunity to inspect such facility or activity for the purpose of determining if the manner in which such facility or activity will be operated or conducted will violate applicable water quality standards.
If the Regional Administrator, after an inspection pursuant to § 121.26, determines that operation of the proposed facility or activity will violate applicable water quality standards, he shall so notify the applicant and the licensing or permitting agency, including his recommendations as to remedial measures necessary to bring the operation of the proposed facility into compliance with such standards.
Where a licensing or permitting agency, following a public hearing, suspends a license or permit after receiving the Regional Administrator's notice and recommendation pursuant to § 121.27, the applicant may submit evidence to the Regional Administrator that the facility or activity or the operation or conduct thereof has been modified so as not to violate water quality standards. If the Regional Administrator determines that water quality standards will not be violated, he shall so notify the licensing or permitting agency.
The Regional Administrator may, and upon request shall, provide licensing and permitting agencies with determinations, definitions and interpretations with respect to the meaning and content of water quality standards where they have been federally approved under section 10 of the Act, and findings with respect to the application of all applicable water quality standards in particular cases and in specific circumstances relative to an activity for which a license or permit is sought. The Regional Administrator may, and upon request shall, also advise licensing and permitting agencies as to the status of compliance by dischargers with the conditions and requirements of applicable water quality standards. In cases where an activity for which a license or permit is sought will affect water quality, but for which there are no applicable water quality standards, the Regional Administrator may advise licensing or permitting agencies with respect to conditions of such license or permit to achieve compliance with the purpose of the Act.
The Clean Water Act, 33 U.S.C. 1251
(a)
(2) These provisions cover basic EPA permitting requirements (this part 122), what a State must do to obtain approval to operate its program in lieu of a Federal program and minimum requirements for administering the approved State program (part 123 of this
(3) These provisions also establish the requirements for public participation in EPA and State permit issuance and enforcement and related variance proceedings, and in the approval of State NPDES programs. These provisions carry out the purposes of the public participation requirements of part 25 of this chapter, and supersede the requirements of that part as they apply to actions covered under this part and parts 123, and 124 of this chapter.
(4) Regulatory provisions in Parts 125, 129, 133, 136 of this chapter and 40 CFR subchapter N and subchapter O of this chapter also implement the NPDES permit program.
(5) Certain requirements set forth in parts 122 and 124 of this chapter are made applicable to approved State programs by reference in part 123 of this chapter. These references are set forth in § 123.25 of this chapter. If a section or paragraph of part 122 or 124 of this chapter is applicable to States, through reference in § 123.25 of this chapter, that fact is signaled by the following words at the end of the section or paragraph heading: (Applicable to State programs, see § 123.25 of this chapter). If these words are absent, the section (or paragraph) applies only to EPA administered permits. Nothing in this part and parts 123, or 124 of this chapter precludes more stringent State regulation of any activity covered by the regulations in 40 CFR parts 122, 123, and 124, whether or not under an approved State program.
(b)
(2) The permit program established under this part also applies to owners or operators of any treatment works treating domestic sewage, whether or not the treatment works is otherwise required to obtain an NPDES permit, unless all requirements implementing section 405(d) of the CWA applicable to the treatment works treating domestic sewage are included in a permit issued under the appropriate provisions of subtitle C of the Solid Waste Disposal Act, Part C of the Safe Drinking Water Act, the Marine Protection, Research, and Sanctuaries Act of 1972, or the Clean Air Act, or under State permit programs approved by the Administrator as adequate to assure compliance with section 405 of the CWA.
(3) The Regional Administrator may designate any person subject to the standards for sewage sludge use and disposal as a “treatment works treating domestic sewage” as defined in § 122.2, where the Regional Administrator finds that a permit is necessary to protect public health and the environment from the adverse effects of sewage sludge or to ensure compliance with the technical standards for sludge use and disposal developed under CWA section 405(d). Any person designated as a “treatment works treating domestic sewage” shall submit an application for a permit under § 122.21 within 180 days of being notified by the Regional Administrator that a permit is required. The Regional Administrator's decision to designate a person as a “treatment works treating domestic sewage” under this paragraph shall be stated in the fact sheet or statement of basis for the permit.
Information concerning the NPDES program and its regulations can be obtained by contacting the Water Permits Division(4203), Office of Wastewater Management, U.S.E.P.A., Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 at (202) 260-9545 and by visiting the homepage at
The following definitions apply to parts 122, 123, and 124. Terms not defined in this section have the meaning given by CWA. When a defined term appears in a definition, the defined term is sometimes placed in quotation marks as an aid to readers.
(a) Any addition of any “pollutant” or combination of pollutants to “waters of the United States” from any “point source,” or
(b) Any addition of any pollutant or combination of pollutants to the waters of the “contiguous zone” or the ocean from any point source other than a vessel or other floating craft which is being used as a means of transportation.
(1) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation;
(2) All dependent Indian communities with the borders of the United States whether within the originally or subsequently acquired territory thereof, and whether within or without the limits of a state; and
(3) All Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
(a) From which there is or may be a “discharge of pollutants;”
(b) That did not commence the “discharge of pollutants” at a particular “site” prior to August 13, 1979;
(c) Which is not a “new source;” and
(d) Which has never received a finally effective NDPES permit for discharges at that “site.”
(a) After promulgation of standards of performance under section 306 of CWA which are applicable to such source, or
(b) After proposal of standards of performance in accordance with section 306 of CWA which are applicable to such source, but only if the standards are promulgated in accordance with section 306 within 120 days of their proposal.
(a) Sewage from vessels; or
(b) Water, gas, or other material which is injected into a well to facilitate production of oil or gas, or water derived in association with oil and gas production and disposed of in a well, if the well used either to facilitate production or for disposal purposes is approved by authority of the State in which the well is located, and if the State determines that the injection or disposal will not result in the degradation of ground or surface water resources.
Radioactive materials covered by the Atomic Energy Act are those encompassed in its definition of source, byproduct, or special nuclear materials. Examples of materials not covered include radium and accelerator-produced isotopes. See
(a) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(b) All interstate waters, including interstate “wetlands;”
(c) All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, “wetlands,” sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:
(1) Which are or could be used by interstate or foreign travelers for recreational or other purposes;
(2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
(3) Which are used or could be used for industrial purposes by industries in interstate commerce;
(d) All impoundments of waters otherwise defined as waters of the United States under this definition;
(e) Tributaries of waters identified in paragraphs (a) through (d) of this definition;
(f) The territorial sea; and
(g) “Wetlands” adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) through (f) of this definition.
At 45 FR 48620, July 21, 1980, the Environmental Protection Agency suspended until further notice in § 122.2, the last sentence, beginning “This exclusion applies . . .” in the definition of “Waters of the United States.” This revision continues that suspension.
The following discharges do not require NPDES permits:
(a) Any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel. This exclusion does not apply to rubbish, trash, garbage, or other such materials discharged overboard; nor to other discharges when the vessel is operating in a capacity other than as a means of transportation such as when used as an energy or mining facility, a storage facility or a seafood processing facility, or when secured to a storage facility or a seafood processing facility, or when secured to the bed of the ocean, contiguous zone or waters of the United States for the purpose of mineral or oil exploration or development.
(b) Discharges of dredged or fill material into waters of the United States which are regulated under section 404 of CWA.
(c) The introduction of sewage, industrial wastes or other pollutants into publicly owned treatment works by indirect dischargers. Plans or agreements to switch to this method of disposal in the future do not relieve dischargers of the obligation to have and comply with permits until all discharges of pollutants to waters of the United States are eliminated. (See also § 122.47(b)). This exclusion does not apply to the introduction of pollutants to privately owned treatment works or to other discharges through pipes, sewers, or other conveyances owned by a State, municipality, or other party not leading to treatment works.
(d) Any discharge in compliance with the instructions of an On-Scene Coordinator pursuant to 40 CFR part 300 (The National Oil and Hazardous Substances Pollution Contingency Plan) or 33 CFR 153.10(e) (Pollution by Oil and Hazardous Substances).
(e) Any introduction of pollutants from non point-source agricultural and silvicultural activities, including storm water runoff from orchards, cultivated crops, pastures, range lands, and forest lands, but not discharges from concentrated animal feeding operations as defined in § 122.23, discharges from concentrated aquatic animal production facilities as defined in § 122.24, discharges to aquaculture projects as defined in § 122.25, and discharges from silvicultural point sources as defined in § 122.27.
(f) Return flows from irrigated agriculture.
(g) Discharges into a privately owned treatment works, except as the Director may otherwise require under § 122.44(m).
(h) The application of pesticides consistent with all relevant requirements under FIFRA (i.e., those relevant to protecting water quality), in the following two circumstances:
(1) The application of pesticides directly to waters of the United States in order to control pests. Examples of such applications include applications to control mosquito larvae, aquatic weeds, or other pests that are present in waters of the United States.
(2) The application of pesticides to control pests that are present over waters of the United States, including near such waters, where a portion of the pesticides will unavoidably be deposited to waters of the United States in order to target the pests effectively; for example, when insecticides are aerially applied to a forest canopy where
No permit may be issued:
(a) When the conditions of the permit do not provide for compliance with the applicable requirements of CWA, or regulations promulgated under CWA;
(b) When the applicant is required to obtain a State or other appropriate certification under section 401 of CWA and § 124.53 and that certification has not been obtained or waived;
(c) By the State Director where the Regional Administrator has objected to issuance of the permit under § 123.44;
(d) When the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected States;
(e) When, in the judgment of the Secretary, anchorage and navigation in or on any of the waters of the United States would be substantially impaired by the discharge;
(f) For the discharge of any radiological, chemical, or biological warfare agent or high-level radioactive waste;
(g) For any discharge inconsistent with a plan or plan amendment approved under section 208(b) of CWA;
(h) For any discharge to the territorial sea, the waters of the contiguous zone, or the oceans in the following circumstances:
(1) Before the promulgation of guidelines under section 403(c) of CWA (for determining degradation of the waters of the territorial seas, the contiguous zone, and the oceans) unless the Director determines permit issuance to be in the public interest; or
(2) After promulgation of guidelines under section 403(c) of CWA, when insufficient information exists to make a reasonable judgment whether the discharge complies with them.
(i) To a new source or a new discharger, if the discharge from its construction or operation will cause or contribute to the violation of water quality standards. The owner or operator of a new source or new discharger proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for which the State or interstate agency has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the close of the public comment period, that:
(1) There are sufficient remaining pollutant load allocations to allow for the discharge; and
(2) The existing dischargers into that segment are subject to compliance schedules designed to bring the segment into compliance with applicable water quality standards. The Director may waive the submission of information by the new source or new discharger required by paragraph (i) of this section if the Director determines that the Director already has adequate information to evaluate the request. An explanation of the development of limitations to meet the criteria of this paragraph (i)(2) is to be included in the fact sheet to the permit under § 124.56(b)(1) of this chapter.
(a)
(2) Compliance with a permit condition which implements a particular “standard for sewage sludge use or disposal” shall be an affirmative defense in any enforcement action brought for
(b)
(c) The issuance of a permit does not authorize any injury to persons or property or invasion of other private rights, or any infringement of State or local law or regulations.
(a)
(1) The permittee has submitted a timely application under § 122.21 which is a complete (under § 122.21(e)) application for a new permit; and
(2) The Regional Administrator, through no fault of the permittee does not issue a new permit with an effective date under § 124.15 on or before the expiration date of the previous permit (for example, when issuance is impracticable due to time or resource constraints).
(b)
(c)
(1) Initiate enforcement action based upon the permit which has been continued;
(2) Issue a notice of intent to deny the new permit under § 124.6. If the permit is denied, the owner or operator would then be required to cease the activities authorized by the continued permit or be subject to enforcement action for operating without a permit;
(3) Issue a new permit under part 124 with appropriate conditions; or
(4) Take other actions authorized by these regulations.
(d)
(a) In accordance with 40 CFR part 2, any information submitted to EPA pursuant to these regulations may be claimed as confidential by the submitter. Any such claim must be asserted at the time of submission in the manner prescribed on the application form or instructions or, in the case of other submissions, by stamping the words “confidential business information” on each page containing such information. If no claim is made at the time of submission, EPA may make the information available to the public without further notice. If a claim is asserted, the information will be treated in accordance with the procedures in 40 CFR part 2 (Public Information).
(b)
(1) The name and address of any permit applicant or permittee;
(2) Permit applications, permits, and effluent data.
(c)
(a)
(2)
(A) All applicants, other than POTWs and TWTDS, must submit Form 1.
(B) Applicants for new and existing POTWs must submit the information contained in paragraph (j) of this section using Form 2A or other form provided by the director.
(C) Applicants for concentrated animal feeding operations or aquatic animal production facilities must submit Form 2B.
(D) Applicants for existing industrial facilities (including manufacturing facilities, commercial facilities, mining activities, and silvicultural activities), must submit Form 2C.
(E) Applicants for new industrial facilities that discharge process wastewater must submit Form 2D.
(F) Applicants for new and existing industrial facilities that discharge only nonprocess wastewater must submit Form 2E.
(G) Applicants for new and existing facilities whose discharge is composed entirely of storm water associated with industrial activity must submit Form 2F, unless exempted by § 122.26(c)(1)(ii). If the discharge is composed of storm water and non-storm water, the applicant must also submit, Forms 2C, 2D, and/or 2E, as appropriate (in addition to Form 2F).
(H) Applicants for new and existing TWTDS, subject to paragraph (c)(2)(i) of this section must submit the application information required by paragraph (q) of this section, using Form 2S or other form provided by the director.
(ii) The application information required by paragraph (a)(2)(i) of this section may be electronically submitted if such method of submittal is approved by EPA or the Director.
(iii) Applicants can obtain copies of these forms by contacting the Water Management Divisions (or equivalent division which contains the NPDES permitting function) of the EPA Regional Offices. The Regional Offices' addresses can be found at § 1.7 of this chapter.
(iv) Applicants for State-issued permits must use State forms which must require at a minimum the information listed in the appropriate paragraphs of this section.
(b)
(c)
(2)
(i) A TWTDS with a currently effective NPDES permit must submit a permit application at the time of its next NPDES permit renewal application. Such information must be submitted in accordance with paragraph (d) of this section.
(ii) Any other TWTDS not addressed under paragraph (c)(2)(i) of this section must submit the information listed in paragraphs (c)(2)(ii)(A) through (E) of this section to the Director within 1 year after publication of a standard applicable to its sewage sludge use or disposal practice(s), using Form 2S or another form provided by the Director. The Director will determine when such TWTDS must submit a full permit application.
(A) The TWTDS's name, mailing address, location, and status as federal, State, private, public or other entity;
(B) The applicant's name, address, telephone number, and ownership status;
(C) A description of the sewage sludge use or disposal practices. Unless the sewage sludge meets the requirements of paragraph (q)(8)(iv) of this section, the description must include the name and address of any facility where sewage sludge is sent for treatment or disposal, and the location of any land application sites;
(D) Annual amount of sewage sludge generated, treated, used or disposed (estimated dry weight basis); and
(E) The most recent data the TWTDS may have on the quality of the sewage sludge.
(iii) Notwithstanding paragraphs (c)(2)(i) or (ii) of this section, the Director may require permit applications from any TWTDS at any time if the Director determines that a permit is necessary to protect public health and the environment from any potential adverse effects that may occur from toxic pollutants in sewage sludge.
(iv) Any TWTDS that commences operations after promulgation of an applicable “standard for sewage sludge use or disposal” must submit an application to the Director at least 180 days prior to the date proposed for commencing operations.
(d)
(2) All other permittees with currently effective permits shall submit a new application 180 days before the existing permit expires, except that:
(i) The Regional Administrator may grant permission to submit an application later than the deadline for submission otherwise applicable, but no later than the permit expiration date; and
(3) [Reserved]
(e)
(2) A permit application shall not be considered complete if a permitting authority has waived application requirements under paragraphs (j) or (q) of
(f)
(1) The activities conducted by the applicant which require it to obtain an NPDES permit.
(2) Name, mailing address, and location of the facility for which the application is submitted.
(3) Up to four SIC codes which best reflect the principal products or services provided by the facility.
(4) The operator's name, address, telephone number, ownership status, and status as Federal, State, private, public, or other entity.
(5) Whether the facility is located on Indian lands.
(6) A listing of all permits or construction approvals received or applied for under any of the following programs:
(i) Hazardous Waste Management program under RCRA.
(ii) UIC program under SDWA.
(iii) NPDES program under CWA.
(iv) Prevention of Significant Deterioration (PSD) program under the Clean Air Act.
(v) Nonattainment program under the Clean Air Act.
(vi) National Emission Standards for Hazardous Pollutants (NESHAPS) preconstruction approval under the Clean Air Act.
(vii) Ocean dumping permits under the Marine Protection Research and Sanctuaries Act.
(viii) Dredge or fill permits under section 404 of CWA.
(ix) Other relevant environmental permits, including State permits.
(7) A topographic map (or other map if a topographic map is unavailable) extending one mile beyond the property boundaries of the source, depicting the facility and each of its intake and discharge structures; each of its hazardous waste treatment, storage, or disposal facilities; each well where fluids from the facility are injected underground; and those wells, springs, other surface water bodies, and drinking water wells listed in public records or otherwise known to the applicant in the map area.
(8) A brief description of the nature of the business.
(g)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(ii)
(iii)
Biochemical Oxygen Demand (BOD5)
Chemical Oxygen Demand
Total Organic Carbon
Total Suspended Solids
Ammonia (as N)
Temperature (both winter and summer)
pH
(iv) The Director may waive the reporting requirements for individual point sources or for a particular industry category for one or more of the pollutants listed in paragraph (g)(7)(iii) of this section if the applicant has demonstrated that such a waiver is appropriate because information adequate to support issuance of a permit can be obtained with less stringent requirements.
(v) Each applicant with processes in one or more primary industry category (see appendix A of this part) contributing to a discharge must report quantitative data for the following pollutants in each outfall containing process wastewater:
(A) The organic toxic pollutants in the fractions designated in table I of appendix D of this part for the applicant's industrial category or categories unless the applicant qualifies as a small business under paragraph (g)(8) of this section. Table II of appendix D of this part lists the organic toxic pollutants in each fraction. The fractions result from the sample preparation required by the analytical procedure which uses gas chromatography/mass spectrometry. A determination that an
(B) The pollutants listed in table III of appendix D of this part (the toxic metals, cyanide, and total phenols).
(vi)(A) Each applicant must indicate whether it knows or has reason to believe that any of the pollutants in table IV of appendix D of this part (certain conventional and nonconventional pollutants) is discharged from each outfall. If an applicable effluent limitations guideline either directly limits the pollutant or, by its express terms, indirectly limits the pollutant through limitations on an indicator, the applicant must report quantitative data. For every pollutant discharged which is not so limited in an effluent limitations guideline, the applicant must either report quantitative data or briefly describe the reasons the pollutant is expected to be discharged.
(B) Each applicant must indicate whether it knows or has reason to believe that any of the pollutants listed in table II or table III of appendix D of this part (the toxic pollutants and total phenols) for which quantitative data are not otherwise required under paragraph (g)(7)(v) of this section are discharged from each outfall. For every pollutant expected to be discharged in concentrations of 10 ppb or greater the applicant must report quantitative data. For acrolein, acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4, 6 dinitrophenol, where any of these four pollutants are expected to be discharged in concentrations of 100 ppb or greater the applicant must report quantitative data. For every pollutant expected to be discharged in concentrations less than 10 ppb, or in the case of acrolein, acrylonitrile, 2,4 dinitrophenol, and 2-methyl-4, 6 dinitrophenol, in concentrations less than 100 ppb, the applicant must either submit quantitative data or briefly describe the reasons the pollutant is expected to be discharged. An applicant qualifying as a small business under paragraph (g)(8) of this section is not required to analyze for pollutants listed in table II of appendix D of this part (the organic toxic pollutants).
(vii) Each applicant must indicate whether it knows or has reason to believe that any of the pollutants in table V of appendix D of this part (certain hazardous substances and asbestos) are discharged from each outfall. For every pollutant expected to be discharged, the applicant must briefly describe the reasons the pollutant is expected to be discharged, and report any quantitative data it has for any pollutant.
(viii) Each applicant must report qualitative data, generated using a screening procedure not calibrated with analytical standards, for 2,3,7,8-tetrachlorodibenzo-p-dioxin (TCDD) if it:
(A) Uses or manufactures 2,4,5-trichlorophenoxy acetic acid (2,4,5,-T); 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5,-TP); 2-(2,4,5-trichlorophenoxy) ethyl, 2,2-dichloropropionate (Erbon); O,O-dimethyl O-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel); 2,4,5-trichlorophenol (TCP); or hexachlorophene (HCP); or
(B) Knows or has reason to believe that TCDD is or may be present in an effluent.
(8)
(i) For coal mines, a probable total annual production of less than 100,000 tons per year.
(ii) For all other applicants, gross total annual sales averaging less than $100,000 per year (in second quarter 1980 dollars).
(9)
(10) [Reserved]
(11)
(12)
(13)
(h)
(1)
(2)
(3)
(4)
(A) Biochemical Oxygen Demand (BOD
(B) Total Suspended Solids (TSS).
(C) Fecal Coliform (if believed present or if sanitary waste is or will be discharged).
(D) Total Residual Chlorine (if chlorine is used).
(E) Oil and Grease.
(F) Chemical Oxygen Demand (COD) (if non-contact cooling water is or will be discharged).
(G) Total Organic Carbon (TOC) (if non-contact cooling water is or will be discharged).
(H) Ammonia (as N).
(I) Discharge Flow.
(J) pH.
(K) Temperature (Winter and Summer).
(ii) The Director may waive the testing and reporting requirements for any of the pollutants or flow listed in paragraph (h)(4)(i) of this section if the applicant submits a request for such a waiver before or with his application which demonstrates that information adequate to support issuance of a permit can be obtained through less stringent requirements.
(iii) If the applicant is a new discharger, he must complete and submit Item IV of Form 2e (see § 122.21(h)(4)) by providing quantitative data in accordance with that section no later than two years after commencement of discharge. However, the applicant need not complete those portions of Item IV requiring tests which he has already performed and reported under the discharge monitoring requirements of his NPDES permit.
(iv) The requirements of parts i and iii of this section that an applicant must provide quantitative data or estimates of certain pollutants do not apply to pollutants present in a discharge solely as a result of their presence in intake water. However, an applicant must report such pollutants as present. Net credit may be provided for the presence of pollutants in intake water if the requirements of § 122.45(g) are met.
(5)
(6)
(7)
(8)
(i)
(1) For concentrated animal feeding operations:
(i) The name of the owner or operator;
(ii) The facility location and mailing addresses;
(iii) Latitude and longitude of the production area (entrance to production area);
(iv) A topographic map of the geographic area in which the CAFO is located showing the specific location of the production area, in lieu of the requirements of paragraph (f)(7) of this section;
(v) Specific information about the number and type of animals, whether in open confinement or housed under roof (beef cattle, broilers, layers, swine weighing 55 pounds or more, swine weighing less than 55 pounds, mature dairy cows, dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys, other);
(vi) The type of containment and storage (anaerobic lagoon, roofed storage shed, storage ponds, underfloor pits, above ground storage tanks, below ground storage tanks, concrete pad, impervious soil pad, other) and total capacity for manure, litter, and process wastewater storage(tons/gallons);
(vii) The total number of acres under control of the applicant available for land application of manure, litter, or process wastewater;
(viii) Estimated amounts of manure, litter, and process wastewater generated per year (tons/gallons);
(ix) Estimated amounts of manure, litter and process wastewater transferred to other persons per year (tons/gallons); and
(x) For CAFOs that must seek coverage under a permit after July 31, 2007, certification that a nutrient management plan has been completed and will be implemented upon the date of permit coverage.
(2) For concentrated aquatic animal production facilities:
(i) The maximum daily and average monthly flow from each outfall.
(ii) The number of ponds, raceways, and similar structures.
(iii) The name of the receiving water and the source of intake water.
(iv) For each species of aquatic animals, the total yearly and maximum harvestable weight.
(v) The calendar month of maximum feeding and the total mass of food fed during that month.
(j)
(1)
(i)
(ii)
(iii)
(A) Hazardous Waste Management program under the Resource Conservation and Recovery Act (RCRA), Subpart C;
(B) Underground Injection Control program under the Safe Drinking Water Act (SDWA);
(C) NPDES program under Clean Water Act (CWA);
(D) Prevention of Significant Deterioration (PSD) program under the Clean Air Act;
(E) Nonattainment program under the Clean Air Act;
(F) National Emission Standards for Hazardous Air Pollutants (NESHAPS) preconstruction approval under the Clean Air Act;
(G) Ocean dumping permits under the Marine Protection Research and Sanctuaries Act;
(H) Dredge or fill permits under section 404 of the CWA; and
(I) Other relevant environmental permits, including State permits;
(iv)
(v)
(vi)
(vii)
(viii)
(A) For effluent discharges to waters of the United States, the total number and types of outfalls (e.g, treated effluent, combined sewer overflows, bypasses, constructed emergency overflows);
(B) For wastewater discharged to surface impoundments:
(
(
(
(C) For wastewater applied to the land:
(
(
(
(
(D) For effluent sent to another facility for treatment prior to discharge:
(
(
(
(
(E) For wastewater disposed of in a manner not included in paragraphs (j)(1)(viii)(A) through (D) of this section (e.g., underground percolation, underground injection):
(
(
(
(2)
(i)
(ii)
(A) Treatment plant area and unit processes;
(B) The major pipes or other structures through which wastewater enters the treatment plant and the pipes or other structures through which treated wastewater is discharged from the treatment plant. Include outfalls from bypass piping, if applicable;
(C) Each well where fluids from the treatment plant are injected underground;
(D) Wells, springs, and other surface water bodies listed in public records or otherwise known to the applicant within
(E) Sewage sludge management facilities (including on-site treatment, storage, and disposal sites); and
(F) Location at which waste classified as hazardous under RCRA enters the treatment plant by truck, rail, or dedicated pipe;
(iii)
(B) A narrative description of the diagram; and
(iv)
(A) The outfall number of each outfall affected;
(B) A narrative description of each required improvement;
(C) Scheduled or actual dates of completion for the following:
(
(
(
(
(D) A description of permits and clearances concerning other Federal and/or State requirements;
(3)
(i)
(A) Outfall number;
(B) State, county, and city or town in which outfall is located;
(C) Latitude and longitude, to the nearest second;
(D) Distance from shore and depth below surface;
(E) Average daily flow rate, in million gallons per day;
(F) The following information for each outfall with a seasonal or periodic discharge:
(
(
(
(
(G) Whether the outfall is equipped with a diffuser and the type (e.g., high-rate) of diffuser used;
(ii)
(A) Name of receiving water;
(B) Name of watershed/river/stream system and United States Soil Conservation Service 14-digit watershed code;
(C) Name of State Management/River Basin and United States Geological Survey 8-digit hydrologic cataloging unit code; and
(D) Critical flow of receiving stream and total hardness of receiving stream at critical low flow (if applicable);
(iii)
(A) The highest level of treatment (e.g., primary, equivalent to secondary, secondary, advanced, other) that is provided for the discharge for each outfall and:
(
(
(
(
(
(B) A description of the type of disinfection used, and whether the treatment plant dechlorinates (if disinfection is accomplished through chlorination);
(4)
(ii) All applicants must sample and analyze for the pollutants listed in Appendix J, Table 1A of this part;
(iii) All applicants with a design flow greater than or equal to 0.1 mgd must sample and analyze for the pollutants listed in Appendix J, Table 1 of this part. Facilities that do not use chlorine for disinfection, do not use chlorine elsewhere in the treatment process, and have no reasonable potential to discharge chlorine in their effluent may delete chlorine from Table 1;
(iv) The following applicants must sample and analyze for the pollutants listed in Appendix J, Table 2 of this part, and for any other pollutants for which the State or EPA have established water quality standards applicable to the receiving waters:
(A) All POTWs with a design flow rate equal to or greater than one million gallons per day;
(B) All POTWs with approved pretreatment programs or POTWs required to develop a pretreatment program;
(C) Other POTWs, as required by the Director;
(v) The Director should require sampling for additional pollutants, as appropriate, on a case-by-case basis;
(vi) Applicants must provide data from a minimum of three samples taken within four and one-half years prior to the date of the permit application. Samples must be representative of the seasonal variation in the discharge from each outfall. Existing data may be used, if available, in lieu of sampling done solely for the purpose of this application. The Director should require additional samples, as appropriate, on a case-by-case basis.
(vii) All existing data for pollutants specified in paragraphs (j)(4)(ii) through (v) of this section that is collected within four and one-half years of the application must be included in the pollutant data summary submitted by the applicant. If, however, the applicant samples for a specific pollutant on a monthly or more frequent basis, it is only necessary, for such pollutant, to summarize all data collected within one year of the application.
(viii) Applicants must collect samples of effluent and analyze such samples for pollutants in accordance with analytical methods approved under 40 CFR Part 136 unless an alternative is specified in the existing NPDES permit. When analysis of pH, temperature, cyanide, total phenols, residual chlorine, oil and grease, fecal coliform (including
(ix) The effluent monitoring data provided must include at least the following information for each parameter:
(A) Maximum daily discharge, expressed as concentration or mass, based upon actual sample values;
(B) Average daily discharge for all samples, expressed as concentration or mass, and the number of samples used to obtain this value;
(C) The analytical method used; and
(D) The threshold level (i.e., method detection limit, minimum level, or other designated method endpoints) for the analytical method used.
(x) Unless otherwise required by the Director, metals must be reported as total recoverable.
(5)
(ii) As provided in paragraphs (j)(5)(iii)-(ix) of this section, the following applicants must submit to the Director the results of valid whole effluent toxicity tests for acute or chronic toxicity for samples taken from each outfall through which effluent is discharged to surface waters, except for combined sewer overflows:
(A) All POTWs with design flow rates greater than or equal to one million gallons per day;
(B) All POTWs with approved pretreatment programs or POTWs required to develop a pretreatment program;
(C) Other POTWs, as required by the Director, based on consideration of the following factors:
(
(
(
(
(
(iii) Where the POTW has two or more outfalls with substantially identical effluent discharging to the same receiving stream segment, the Director may allow applicants to submit whole effluent toxicity data for only one outfall on a case-by-case basis. The Director may also allow applicants to composite samples from one or more outfalls that discharge into the same mixing zone.
(iv) Each applicant required to perform whole effluent toxicity testing pursuant to paragraph (j)(5)(ii) of this section must provide:
(A) Results of a minimum of four quarterly tests for a year, from the year preceding the permit application; or
(B) Results from four tests performed at least annually in the four and one half year period prior to the application, provided the results show no appreciable toxicity using a safety factor determined by the permitting authority.
(v) Applicants must conduct tests with multiple species (no less than two species; e.g., fish, invertebrate, plant), and test for acute or chronic toxicity, depending on the range of receiving water dilution. EPA recommends that applicants conduct acute or chronic testing based on the following dilutions:
(A) Acute toxicity testing if the dilution of the effluent is greater than 1000:1 at the edge of the mixing zone;
(B) Acute or chronic toxicity testing if the dilution of the effluent is between 100:1 and 1000:1 at the edge of the mixing zone. Acute testing may be more appropriate at the higher end of this range (1000:1), and chronic testing may be more appropriate at the lower end of this range (100:1); and
(C) Chronic testing if the dilution of the effluent is less than 100:1 at the edge of the mixing zone.
(vi) Each applicant required to perform whole effluent toxicity testing pursuant to paragraph (j)(5)(ii) of this section must provide the number of chronic or acute whole effluent toxicity tests that have been conducted since the last permit reissuance.
(vii) Applicants must provide the results using the form provided by the Director, or test summaries if available and comprehensive, for each whole effluent toxicity test conducted pursuant to paragraph (j)(5)(ii) of this section for which such information has not been reported previously to the Director.
(viii) Whole effluent toxicity testing conducted pursuant to paragraph (j)(5)(ii) of this section must be conducted using methods approved under 40 CFR part 136. West coast facilities in Washington, Oregon, California, Alaska, Hawaii, and the Pacific Territories are exempted from 40 CFR part 136 chronic methods and must use alternative guidance as directed by the permitting authority.
(ix) For whole effluent toxicity data submitted to the Director within four and one-half years prior to the date of the application, applicants must provide the dates on which the data were submitted and a summary of the results.
(x) Each POTW required to perform whole effluent toxicity testing pursuant to paragraph (j)(5)(ii) of this section must provide any information on the cause of toxicity and written details of any toxicity reduction evaluation conducted, if any whole effluent toxicity test conducted within the past four and one-half years revealed toxicity.
(6)
(i) Number of significant industrial users (SIUs) and categorical industrial users (CIUs) discharging to the POTW; and
(ii) POTWs with one or more SIUs shall provide the following information for each SIU, as defined at 40 CFR 403.3(v), that discharges to the POTW:
(A) Name and mailing address;
(B) Description of all industrial processes that affect or contribute to the SIU's discharge;
(C) Principal products and raw materials of the SIU that affect or contribute to the SIU's discharge;
(D) Average daily volume of wastewater discharged, indicating the
(E) Whether the SIU is subject to local limits;
(F) Whether the SIU is subject to categorical standards, and if so, under which category(ies) and subcategory(ies); and
(G) Whether any problems at the POTW (e.g., upsets, pass through, interference) have been attributed to the SIU in the past four and one-half years.
(iii) The information required in paragraphs (j)(6)(i) and (ii) of this section may be waived by the Director for POTWs with pretreatment programs if the applicant has submitted either of the following that contain information substantially identical to that required in paragraphs (j)(6)(i) and (ii) of this section.
(A) An annual report submitted within one year of the application; or
(B) A pretreatment program;
(7)
(i) If the POTW receives, or has been notified that it will receive, by truck, rail, or dedicated pipe any wastes that are regulated as RCRA hazardous wastes pursuant to 40 CFR part 261, the applicant must report the following:
(A) The method by which the waste is received (i.e., whether by truck, rail, or dedicated pipe); and
(B) The hazardous waste number and amount received annually of each hazardous waste;
(ii) If the POTW receives, or has been notified that it will receive, wastewaters that originate from remedial activities, including those undertaken pursuant to CERCLA and sections 3004(u) or 3008(h) of RCRA, the applicant must report the following:
(A) The identity and description of the site(s) or facility(ies) at which the wastewater originates;
(B) The identities of the wastewater's hazardous constituents, as listed in Appendix VIII of part 261 of this chapter; if known; and
(C) The extent of treatment, if any, the wastewater receives or will receive before entering the POTW;
(iii) Applicants are exempt from the requirements of paragraph (j)(7)(ii) of this section if they receive no more than fifteen kilograms per month of hazardous wastes, unless the wastes are acute hazardous wastes as specified in 40 CFR 261.30(d) and 261.33(e).
(8)
(i)
(A)
(
(
(
(B)
(
(
(
(
(
(ii)
(A)
(
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(
(
(C)
(
(
(
(D)
(9)
(10)
(k)
(1)
(2)
(3)
(ii)
(iii)
(4)
(5)
(i) Each applicant must report estimated daily maximum, daily average, and source of information for each outfall for the following pollutants or parameters. The Director may waive the reporting requirements for any of these pollutants and parameters if the applicant submits a request for such a waiver before or with his application which demonstrates that information adequate to support issuance of the permit can be obtained through less stringent reporting requirements.
(A) Biochemical Oxygen Demand (BOD).
(B) Chemical Oxygen Demand (COD).
(C) Total Organic Carbon (TOC).
(D) Total Suspended Solids (TSS).
(E) Flow.
(F) Ammonia (as N).
(G) Temperature (winter and summer).
(H) pH.
(ii) Each applicant must report estimated daily maximum, daily average, and source of information for each outfall for the following pollutants, if the applicant knows or has reason to believe they will be present or if they are limited by an effluent limitation guideline or new source performance standard either directly or indirectly through limitations on an indicator pollutant: all pollutants in table IV of appendix D of part 122 (certain conventional and nonconventional pollutants).
(iii) Each applicant must report estimated daily maximum, daily average and source of information for the following pollutants if he knows or has reason to believe that they will be present in the discharges from any outfall:
(A) The pollutants listed in table III of appendix D (the toxic metals, in the discharge from any outfall: Total cyanide, and total phenols);
(B) The organic toxic pollutants in table II of appendix D (except bis (chloromethyl) ether, dichlorofluoromethane and trichlorofluoromethane). This requirement is waived for applicants with expected gross sales of less than $100,000 per year for the next three years, and for coal mines with expected average production of less than 100,000 tons of coal per year.
(iv) The applicant is required to report that 2,3,7,8 Tetrachlorodibenzo-P-Dioxin (TCDD) may be discharged if he uses or manufactures one of the following compounds, or if he knows or has reason to believe that TCDD will or may be present in an effluent:
(A) 2,4,5-trichlorophenoxy acetic acid (2,4,5-T) (CAS #93-76-5);
(B) 2-(2,4,5-trichlorophenoxy) propanoic acid (Silvex, 2,4,5-TP) (CAS #93-72-1);
(C) 2-(2,4,5-trichlorophenoxy) ethyl 2,2-dichloropropionate (Erbon) (CAS #136-25-4);
(D) 0,0-dimethyl 0-(2,4,5-trichlorophenyl) phosphorothioate (Ronnel) (CAS #299-84-3);
(E) 2,4,5-trichlorophenol (TCP) (CAS #95-95-4); or
(F) Hexachlorophene (HCP) (CAS #70-30-4);
(v) Each applicant must report any pollutants listed in table V of appendix D (certain hazardous substances) if he believes they will be present in any outfall (no quantitative estimates are required unless they are already available).
(vi) No later than two years after the commencement of discharge from the proposed facility, the applicant is required to complete and submit Items V and VI of NPDES application Form 2c (see § 122.21(g)). However, the applicant need not complete those portions of Item V requiring tests which he has already performed and reported under the discharge monitoring requirements of his NPDES permit.
(6)
(7)
(8)
(l)
(2)(i) Before beginning any on-site construction as defined in § 122.29, the owner or operator of any facility which may be a new source must submit information to the Regional Administrator so that he or she can determine if the facility is a new source. The Regional Administrator may request any additional information needed to determine whether the facility is a new source.
(ii) The Regional Administrator shall make an initial determination whether the facility is a new source within 30 days of receiving all necessary information under paragraph (l)(2)(i) of this section.
(3) The Regional Administrator shall issue a public notice in accordance with § 124.10 of this chapter of the new source determination under paragraph (l)(2) of this section. If the Regional Administrator has determined that the facility is a new source, the notice shall state that the applicant must comply with the environmental review requirements of 40 CFR 6.600 through 6.607.
(4) Any interested party may challenge the Regional Administrator's initial new source determination by requesting review of the determination under § 124.19 of this chapter within 30 days of the public notice of the initial determination. If all interested parties agree, the Environmental Appeals Board may defer review until after a final permit decision is made, and consolidate review of the determination with any review of the permit decision.
(m)
(1)
(A) For a request from best practicable control technology currently available (BPT), by the close of the public comment period under § 124.10.
(B) For a request from best available technology economically achievable (BAT) and/or best conventional pollutant control technology (BCT), by no later than:
(
(
(ii) The request shall explain how the requirements of the applicable regulatory and/or statutory criteria have been met.
(2)
(i) For those requests for a variance from an effluent limitation based upon an effluent limitation guideline by:
(A) Submitting an initial request to the Regional Administrator, as well as to the State Director if applicable, stating the name of the discharger, the permit number, the outfall number(s), the applicable effluent guideline, and whether the discharger is requesting a section 301(c) or section 301(g) modification or both. This request must have been filed not later than:
(
(
(B) Submitting a completed request no later than the close of the public comment period under § 124.10 demonstrating that the requirements of § 124.13 and the applicable requirements of part 125 have been met. Notwithstanding this provision, the complete application for a request under section 301(g) shall be filed 180 days before EPA must make a decision (unless the Regional Division Director establishes a shorter or longer period).
(ii) For those requests for a variance from effluent limitations not based on effluent limitation guidelines, the request need only comply with paragraph (m)(2)(i)(B) of this section and need not be preceded by an initial request under paragraph (m)(2)(i)(A) of this section.
(3)-(4) [Reserved]
(5)
(6)
(n)
(1)
(2) [Reserved]
(3)
(o)
(2) A discharger who cannot file a timely complete request required under paragraph (m)(2)(i)(B) or (m)(2)(ii) of this section may request an extension. The extension may be granted or denied at the discretion of the Director. Extensions shall be no more than 6 months in duration.
(p)
(q)
(1)
(i) The name, mailing address, and location of the TWTDS for which the application is submitted;
(ii) Whether the facility is a Class I Sludge Management Facility;
(iii) The design flow rate (in million gallons per day);
(iv) The total population served; and
(v) The TWTDS's status as Federal, State, private, public, or other entity;
(2)
(i) The name, mailing address, and telephone number of the applicant; and
(ii) Indication whether the applicant is the owner, operator, or both;
(3)
(i) Hazardous Waste Management program under the Resource Conservation and Recovery Act (RCRA);
(ii) UIC program under the Safe Drinking Water Act (SDWA);
(iii) NPDES program under the Clean Water Act (CWA);
(iv) Prevention of Significant Deterioration (PSD) program under the Clean Air Act;
(v) Nonattainment program under the Clean Air Act;
(vi) National Emission Standards for Hazardous Air Pollutants (NESHAPS) preconstruction approval under the Clean Air Act;
(vii) Dredge or fill permits under section 404 of CWA;
(viii) Other relevant environmental permits, including State or local permits;
(4)
(5)
(i) All sewage sludge management facilities, including on-site treatment, storage, and disposal sites; and
(ii) Wells, springs, and other surface water bodies that are within
(6)
(7)
(i) The Director may require sampling for additional pollutants, as appropriate, on a case-by-case basis;
(ii) Applicants must provide data from a minimum of three samples taken within four and one-half years prior to the date of the permit application. Samples must be representative of the sewage sludge and should be taken at least one month apart. Existing data may be used in lieu of sampling done solely for the purpose of this application;
(iii) Applicants must collect and analyze samples in accordance with analytical methods approved under SW-846 unless an alternative has been specified in an existing sewage sludge permit;
(iv) The monitoring data provided must include at least the following information for each parameter:
(A) Average monthly concentration for all samples (mg/kg dry weight), based upon actual sample values;
(B) The analytical method used; and
(C) The method detection level.
(8)
(i) If the applicant's facility generates sewage sludge, the total dry metric tons per 365-day period generated at the facility;
(ii) If the applicant's facility receives sewage sludge from another facility, the following information for each facility from which sewage sludge is received:
(A) The name, mailing address, and location of the other facility;
(B) The total dry metric tons per 365-day period received from the other facility; and
(C) A description of any treatment processes occurring at the other facility, including blending activities and treatment to reduce pathogens or vector attraction characteristics;
(iii) If the applicant's facility changes the quality of sewage sludge through blending, treatment, or other activities, the following information:
(A) Whether the Class A pathogen reduction requirements in 40 CFR 503.32(a) or the Class B pathogen reduction requirements in 40 CFR 503.32(b) are met, and a description of any treatment processes used to reduce pathogens in sewage sludge;
(B) Whether any of the vector attraction reduction options of 40 CFR 503.33(b)(1) through (b)(8) are met, and a description of any treatment processes used to reduce vector attraction properties in sewage sludge; and
(C) A description of any other blending, treatment, or other activities that change the quality of sewage sludge;
(iv) If sewage sludge from the applicant's facility meets the ceiling concentrations in 40 CFR 503.13(b)(1), the pollutant concentrations in § 503.13(b)(3), the Class A pathogen requirements in § 503.32(a), and one of the vector attraction reduction requirements in § 503.33(b)(1) through (b)(8), and if the sewage sludge is applied to the land, the applicant must provide the total dry metric tons per 365-day period of sewage sludge subject to this paragraph that is applied to the land;
(v) If sewage sludge from the applicant's facility is sold or given away in a bag or other container for application to the land, and the sewage sludge is not subject to paragraph (q)(8)(iv) of this section, the applicant must provide the following information:
(A) The total dry metric tons per 365-day period of sewage sludge subject to this paragraph that is sold or given away in a bag or other container for application to the land; and
(B) A copy of all labels or notices that accompany the sewage sludge being sold or given away;
(vi) If sewage sludge from the applicant's facility is provided to another “person who prepares,” as defined at 40 CFR 503.9(r), and the sewage sludge is not subject to paragraph (q)(8)(iv) of this section, the applicant must provide the following information for each facility receiving the sewage sludge:
(A) The name and mailing address of the receiving facility;
(B) The total dry metric tons per 365-day period of sewage sludge subject to this paragraph that the applicant provides to the receiving facility;
(C) A description of any treatment processes occurring at the receiving facility, including blending activities and treatment to reduce pathogens or vector attraction characteristic;
(D) A copy of the notice and necessary information that the applicant is required to provide the receiving facility under 40 CFR 503.12(g); and
(E) If the receiving facility places sewage sludge in bags or containers for sale or give-away to application to the land, a copy of any labels or notices that accompany the sewage sludge;
(9)
(i) The total dry metric tons per 365-day period of sewage sludge subject to this paragraph that is applied to the land;
(ii) If any land application sites are located in States other than the State where the sewage sludge is prepared, a description of how the applicant will notify the permitting authority for the State(s) where the land application sites are located;
(iii) The following information for each land application site that has been identified at the time of permit application:
(A) The name (if any), and location for the land application site;
(B) The site's latitude and longitude to the nearest second, and method of determination;
(C) A topographic map (or other map if a topographic map is unavailable) that shows the site's location;
(D) The name, mailing address, and telephone number of the site owner, if different from the applicant;
(E) The name, mailing address, and telephone number of the person who applies sewage sludge to the site, if different from the applicant;
(F) Whether the site is agricultural land, forest, a public contact site, or a reclamation site, as such site types are defined under 40 CFR 503.11;
(G) The type of vegetation grown on the site, if known, and the nitrogen requirement for this vegetation;
(H) Whether either of the vector attraction reduction options of 40 CFR 503.33(b)(9) or (b)(10) is met at the site, and a description of any procedures employed at the time of use to reduce vector attraction properties in sewage sludge; and
(I) Other information that describes how the site will be managed, as specified by the permitting authority.
(iv) The following information for each land application site that has been identified at the time of permit application, if the applicant intends to apply bulk sewage sludge subject to the cumulative pollutant loading rates in 40 CFR 503.13(b)(2) to the site:
(A) Whether the applicant has contacted the permitting authority in the State where the bulk sewage sludge subject to § 503.13(b)(2) will be applied, to ascertain whether bulk sewage sludge subject to § 503.13(b)(2) has been applied to the site on or since July 20, 1993, and if so, the name of the permitting authority and the name and phone number of a contact person at the permitting authority;
(B) Identification of facilities other than the applicant's facility that have sent, or are sending, sewage sludge subject to the cumulative pollutant loading rates in § 503.13(b)(2) to the site since July 20, 1993, if, based on the inquiry in paragraph (q)(iv)(A), bulk sewage sludge subject to cumulative pollutant loading rates in § 503.13(b)(2) has been applied to the site since July 20, 1993;
(v) If not all land application sites have been identified at the time of permit application, the applicant must submit a land application plan that, at a minimum:
(A) Describes the geographical area covered by the plan;
(B) Identifies the site selection criteria;
(C) Describes how the site(s) will be managed;
(D) Provides for advance notice to the permit authority of specific land application sites and reasonable time for the permit authority to object prior to land application of the sewage sludge; and
(E) Provides for advance public notice of land application sites in the manner prescribed by State and local
(10)
(i) The total dry metric tons of sewage sludge from the applicant's facility that is placed on surface disposal sites per 365-day period;
(ii) The following information for each surface disposal site receiving sewage sludge from the applicant's facility that the applicant does
(A) The site name or number, contact person, mailing address, and telephone number for the surface disposal site; and
(B) The total dry metric tons from the applicant's facility per 365-day period placed on the surface disposal site;
(iii) The following information for each active sewage sludge unit at each surface disposal site that the applicant owns or operates:
(A) The name or number and the location of the active sewage sludge unit;
(B) The unit's latitude and longitude to the nearest second, and method of determination;
(C) If not already provided, a topographic map (or other map if a topographic map is unavailable) that shows the unit's location;
(D) The total dry metric tons placed on the active sewage sludge unit per 365-day period;
(E) The total dry metric tons placed on the active sewage sludge unit over the life of the unit;
(F) A description of any liner for the active sewage sludge unit, including whether it has a maximum permeability of 1 × 10
(G) A description of any leachate collection system for the active sewage sludge unit, including the method used for leachate disposal, and any Federal, State, and local permit number(s) for leachate disposal;
(H) If the active sewage sludge unit is less than 150 meters from the property line of the surface disposal site, the actual distance from the unit boundary to the site property line;
(I) The remaining capacity (dry metric tons) for the active sewage sludge unit;
(J) The date on which the active sewage sludge unit is expected to close, if such a date has been identified;
(K) The following information for any other facility that sends sewage sludge to the active sewage sludge unit:
(
(
(L) Whether any of the vector attraction reduction options of 40 CFR 503.33(b)(9) through (b)(11) is met at the active sewage sludge unit, and a description of any procedures employed at the time of disposal to reduce vector attraction properties in sewage sludge;
(M) The following information, as applicable to any ground-water monitoring occurring at the active sewage sludge unit:
(
(
(
(
(N) If site-specific pollutant limits are being sought for the sewage sludge placed on this active sewage sludge unit, information to support such a request;
(11)
(i) The total dry metric tons of sewage sludge from the applicant's facility that is fired in sewage sludge incinerators per 365-day period;
(ii) The following information for each sewage sludge incinerator firing the applicant's sewage sludge that the applicant does
(A) The name and/or number, contact person, mailing address, and telephone number of the sewage sludge incinerator; and
(B) The total dry metric tons from the applicant's facility per 365-day period fired in the sewage sludge incinerator;
(iii) The following information for each sewage sludge incinerator that the applicant owns or operates:
(A) The name and/or number and the location of the sewage sludge incinerator;
(B) The incinerator's latitude and longitude to the nearest second, and method of determination;
(C) The total dry metric tons per 365-day period fired in the sewage sludge incinerator;
(D) Information, test data, and documentation of ongoing operating parameters indicating that compliance with the National Emission Standard for Beryllium in 40 CFR part 61 will be achieved;
(E) Information, test data, and documentation of ongoing operating parameters indicating that compliance with the National Emission Standard for Mercury in 40 CFR part 61 will be achieved;
(F) The dispersion factor for the sewage sludge incinerator, as well as modeling results and supporting documentation;
(G) The control efficiency for parameters regulated in 40 CFR 503.43, as well as performance test results and supporting documentation;
(H) Information used to calculate the risk specific concentration (RSC) for chromium, including the results of incinerator stack tests for hexavalent and total chromium concentrations, if the applicant is requesting a chromium limit based on a site-specific RSC value;
(I) Whether the applicant monitors total hydrocarbons (THC) or Carbon Monoxide (CO) in the exit gas for the sewage sludge incinerator;
(J) The type of sewage sludge incinerator;
(K) The maximum performance test combustion temperature, as obtained during the performance test of the sewage sludge incinerator to determine pollutant control efficiencies;
(L) The following information on the sewage sludge feed rate used during the performance test:
(
(
(
(M) The incinerator stack height in meters for each stack, including identification of whether actual or creditable stack height was used;
(N) The operating parameters for the sewage sludge incinerator air pollution control device(s), as obtained during the performance test of the sewage sludge incinerator to determine pollutant control efficiencies;
(O) Identification of the monitoring equipment in place, including (but not limited to) equipment to monitor the following:
(
(
(
(
(P) A list of all air pollution control equipment used with this sewage sludge incinerator;
(12)
(i) The name, contact person, mailing address, location, and all applicable permit numbers of the MSWLF;
(ii) The total dry metric tons per 365-day period sent from this facility to the MSWLF;
(iii) A determination of whether the sewage sludge meets applicable requirements for disposal of sewage sludge in a MSWLF, including the results of the paint filter liquids test and any additional requirements that apply on a site-specific basis; and
(iv) Information, if known, indicating whether the MSWLF complies with criteria set forth in 40 CFR part 258;
(13)
(14)
(15)
[Note 1: At 46 FR 2046, Jan. 8, 1981, the Environmental Protection Agency suspended until further notice § 122.21(g)(7)(v)(A) and the corresponding portions of Item V-C of the NPDES application Form 2C as they apply to coal mines. This suspension continues in effect.]
[Note 2: At 46 FR 22585, Apr. 20, 1981, the Environmental Protection Agency suspended until further notice § 122.21(g)(7)(v)(A) and the corresponding portions of Item V-C of the NPDES application Form 2C as they apply to:
a. Testing and reporting for all four organic fractions in the Greige Mills Subcategory of the Textile Mills industry (subpart C—Low water use processing of 40 CFR part 410), and testing and reporting for the pesticide fraction in all other subcategories of this industrial category.
b. Testing and reporting for the volatile, base/neutral and pesticide fractions in the Base and Precious Metals Subcategory of the Ore Mining and Dressing industry (subpart B of 40 CFR part 440), and testing and reporting for all four fractions in all other subcategories of this industrial category.
c. Testing and reporting for all four GC/MS fractions in the Porcelain Enameling industry.
[Note 3: At 46 FR 35090, July 1, 1981, the Environmental Protection Agency suspended until further notice § 122.21(g)(7)(v)(A) and the corresponding portions of Item V-C of the NPDES application Form 2C as they apply to:
a. Testing and reporting for the pesticide fraction in the Tall Oil Rosin Subcategory (subpart D) and Rosin-Based Derivatives Subcategory (subpart F) of the Gum and Wood Chemicals industry (40 CFR part 454), and testing and reporting for the pesticide and base-neutral fractions in all other subcategories of this industrial category.
b. Testing and reporting for the pesticide fraction in the Leather Tanning and Finishing, Paint and Ink Formulation, and Photographic Supplies industrial categories.
c. Testing and reporting for the acid, base/neutral and pesticide fractions in the Petroleum Refining industrial category.
d. Testing and reporting for the pesticide fraction in the Papergrade Sulfite subcategories (subparts J and U) of the Pulp and Paper industry (40 CFR part 430); testing and reporting for the base/neutral and pesticide fractions in the following subcategories: Deink (subpart Q), Dissolving Kraft (subpart F), and Paperboard from Waste Paper (subpart E); testing and reporting for the volatile, base/neutral and pesticide fractions in the following subcategories: BCT Bleached Kraft (subpart H), Semi-Chemical (subparts B and C), and Nonintegrated-Fine Papers (subpart R); and testing and reporting for the acid, base/neutral, and pesticide fractions in the following subcategories: Fine Bleached Kraft (subpart I), Dissolving Sulfite Pulp (subpart K), Groundwood-Fine Papers (subpart O), Market Bleached Kraft (subpart G), Tissue from Wastepaper (subpart T), and Nonintegrated-Tissue Papers (subpart S).
e. Testing and reporting for the base/neutral fraction in the Once-Through Cooling Water, Fly Ash and Bottom Ash Transport Water process wastestreams of the Steam Electric Power Plant industrial category.
(r)
(ii)
(2)
(i) A narrative description and scaled drawings showing the physical configuration of all source water bodies used by your facility, including areal dimensions, depths, salinity and temperature regimes, and other documentation that supports your determination of the water body type where each cooling water intake structure is located;
(ii) Identification and characterization of the source waterbody's hydrological and geomorphological features, as well as the methods you used to conduct any physical studies to determine your intake's area of influence within the waterbody and the results of such studies;
(iii) Locational maps; and
(iv) For new offshore oil and gas facilities that are not fixed facilities, a narrative description and/or locational maps providing information on predicted locations within the waterbody during the permit term in sufficient detail for the Director to determine the appropriateness of additional impingement requirements under § 125.134(b)(4).
(3)
(i) A narrative description of the configuration of each of your cooling water intake structures and where it is located in the water body and in the water column;
(ii) Latitude and longitude in degrees, minutes, and seconds for each of your cooling water intake structures;
(iii) A narrative description of the operation of each of your cooling water intake structures, including design intake flows, daily hours of operation, number of days of the year in operation and seasonal changes, if applicable;
(iv) A flow distribution and water balance diagram that includes all sources of water to the facility, recirculating flows, and discharges; and
(v) Engineering drawings of the cooling water intake structure.
(4) Source water baseline biological characterization data. This information is required to characterize the biological community in the vicinity of the cooling water intake structure and to characterize the operation of the cooling water intake structures. The Director may also use this information in subsequent permit renewal proceedings to determine if your Design and Construction Technology Plan as required in § 125.86(b)(4) or § 125.136(b)(3) of this chapter should be revised. This supporting information must include existing data (if they are available). However, you may supplement the data using newly conducted field studies if you choose to do so. The information you submit must include:
(i) A list of the data in paragraphs (r)(4)(ii) through (vi) of this section that are not available and efforts made to identify sources of the data;
(ii) A list of species (or relevant taxa) for all life stages and their relative abundance in the vicinity of the cooling water intake structure;
(iii) Identification of the species and life stages that would be most susceptible to impingement and entrainment. Species evaluated should include the forage base as well as those most important in terms of significance to commercial and recreational fisheries;
(iv) Identification and evaluation of the primary period of reproduction, larval recruitment, and period of peak abundance for relevant taxa;
(v) Data representative of the seasonal and daily activities (e.g., feeding and water column migration) of biological organisms in the vicinity of the cooling water intake structure;
(vi) Identification of all threatened, endangered, and other protected species that might be susceptible to impingement and entrainment at your cooling water intake structures;
(vii) Documentation of any public participation or consultation with Federal or State agencies undertaken in development of the plan; and
(viii) If you supplement the information requested in paragraph (r)(4)(i) of this section with data collected using field studies, supporting documentation for the Source Water Baseline Biological Characterization must include a description of all methods and quality assurance procedures for sampling, and data analysis including a description of the study area; taxonomic identification of sampled and evaluated biological assemblages (including all life stages of fish and shellfish); and sampling and data analysis methods. The sampling and/or data analysis methods you use must be appropriate for a quantitative survey and based on consideration of methods used in other biological studies performed within the same source water body. The study area should include, at a minimum, the area of influence of the cooling water intake structure.
(5)
(i) A narrative description of the operation of the cooling water system, its relationship to cooling water intake structures, the proportion of the design intake flow that is used in the system, the number of days of the year the cooling water system is in operation and seasonal changes in the operation of the system, if applicable; and
(ii) Design and engineering calculations prepared by a qualified professional and supporting data to support the description required by paragraph (r)(5)(i) of this section.
(a)
(1)
EPA does not require specific assignments or delegations of authority to responsible corporate officers identified in § 122.22(a)(1)(i). The Agency will presume that these responsible corporate officers have the requisite authority to sign permit applications unless the corporation has notified the
(2)
(3)
(b) All reports required by permits, and other information requested by the Director shall be signed by a person described in paragraph (a) of this section, or by a duly authorized representative of that person. A person is a duly authorized representative only if:
(1) The authorization is made in writing by a person described in paragraph (a) of this section;
(2) The authorization specifies either an individual or a position having responsibility for the overall operation of the regulated facility or activity such as the position of plant manager, operator of a well or a well field, superintendent, position of equivalent responsibility, or an individual or position having overall responsibility for environmental matters for the company, (A duly authorized representative may thus be either a named individual or any individual occupying a named position.) and,
(3) The written authorization is submitted to the Director.
(c)
(d)
I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gather and evaluate the information submitted. Based on my inquiry of the person or persons who manage the system, or those persons directly responsible for gathering the information, the information submitted is, to the best of my knowledge and belief, true, accurate, and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.
(a)
(b) Definitions applicable to this section:
(1)
(i) Animals (other than aquatic animals) have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period, and
(ii) Crops, vegetation, forage growth, or post-harvest residues are not sustained in the normal growing season over any portion of the lot or facility.
(2)
(3) The term
(4)
(i) 700 mature dairy cows, whether milked or dry;
(ii) 1,000 veal calves;
(iii) 1,000 cattle other than mature dairy cows or veal calves. Cattle includes but is not limited to heifers, steers, bulls and cow/calf pairs;
(iv) 2,500 swine each weighing 55 pounds or more;
(v) 10,000 swine each weighing less than 55 pounds;
(vi) 500 horses;
(vii) 10,000 sheep or lambs;
(viii) 55,000 turkeys;
(ix) 30,000 laying hens or broilers, if the AFO uses a liquid manure handling system;
(x) 125,000 chickens (other than laying hens), if the AFO uses other than a liquid manure handling system;
(xi) 82,000 laying hens, if the AFO uses other than a liquid manure handling system;
(xii) 30,000 ducks (if the AFO uses other than a liquid manure handling system); or
(xiii) 5,000 ducks (if the AFO uses a liquid manure handling system).
(5) The term
(6)
(i) The type and number of animals that it stables or confines falls within any of the following ranges:
(A) 200 to 699 mature dairy cows, whether milked or dry;
(B) 300 to 999 veal calves;
(C) 300 to 999 cattle other than mature dairy cows or veal calves. Cattle includes but is not limited to heifers, steers, bulls and cow/calf pairs;
(D) 750 to 2,499 swine each weighing 55 pounds or more;
(E) 3,000 to 9,999 swine each weighing less than 55 pounds;
(F) 150 to 499 horses;
(G) 3,000 to 9,999 sheep or lambs;
(H) 16,500 to 54,999 turkeys;
(I) 9,000 to 29,999 laying hens or broilers, if the AFO uses a liquid manure handling system;
(J) 37,500 to 124,999 chickens (other than laying hens), if the AFO uses other than a liquid manure handling system;
(K) 25,000 to 81,999 laying hens, if the AFO uses other than a liquid manure handling system;
(L) 10,000 to 29,999 ducks (if the AFO uses other than a liquid manure handling system); or
(M) 1,500 to 4,999 ducks (if the AFO uses a liquid manure handling system); and
(ii) Either one of the following conditions are met:
(A) Pollutants are discharged into waters of the United States through a man-made ditch, flushing system, or other similar man-made device; or
(B) Pollutants are discharged directly into waters of the United States which originate outside of and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation.
(7)
(8)
(9)
(c)
(1)
(ii)
(2) In making this designation, the State Director or the Regional Administrator shall consider the following factors:
(i) The size of the AFO and the amount of wastes reaching waters of the United States;
(ii) The location of the AFO relative to waters of the United States;
(iii) The means of conveyance of animal wastes and process waste waters into waters of the United States;
(iv) The slope, vegetation, rainfall, and other factors affecting the likelihood or frequency of discharge of animal wastes manure and process waste waters into waters of the United States; and
(v) Other relevant factors.
(3) No AFO shall be designated under this paragraph unless the State Director or the Regional Administrator has conducted an on-site inspection of the operation and determined that the operation should and could be regulated under the permit program. In addition, no AFO with numbers of animals below those established in paragraph (b)(6) of this section may be designated as a CAFO unless:
(i) Pollutants are discharged into waters of the United States through a manmade ditch, flushing system, or other similar manmade device; or
(ii) Pollutants are discharged directly into waters of the United States which originate outside of the facility and pass over, across, or through the facility or otherwise come into direct contact with the animals confined in the operation.
(d)
(2)
(3)
(e)
(f)
(2)
(3)
(4)
(5)
(6)
(g)
(2)
(3)
(i) For newly constructed operations not subject to effluent limitations guidelines, 180 days prior to the time CAFO commences operation; or
(ii) For other operations (
(iii) If an operational change that makes the operation a CAFO would not have made it a CAFO prior to April 14, 2003, the operation has until July 31, 2007, or 90 days after becoming defined as a CAFO, whichever is later.
(4)
(5)
(6)
(h)
(1) The facility has ceased operation or is no longer a CAFO; and
(2) The permittee has demonstrated to the satisfaction of the Director that there is no remaining potential for a discharge of manure, litter or associated process wastewater that was generated while the operation was a CAFO, other than agricultural stormwater from land application areas.
(a)
(b)
(c)
(i) The location and quality of the receiving waters of the United States;
(ii) The holding, feeding, and production capacities of the facility;
(iii) The quantity and nature of the pollutants reaching waters of the United States; and
(iv) Other relevant factors.
(2) A permit application shall not be required from a concentrated aquatic animal production facility designated under this paragraph until the Director has conducted on-site inspection of the facility and has determined that the facility should and could be regulated under the permit program.
(a)
(b)
(2)
(a)
(i) A discharge with respect to which a permit has been issued prior to February 4, 1987;
(ii) A discharge associated with industrial activity (see § 122.26(a)(4));
(iii) A discharge from a large municipal separate storm sewer system;
(iv) A discharge from a medium municipal separate storm sewer system;
(v) A discharge which the Director, or in States with approved NPDES programs, either the Director or the EPA Regional Administrator, determines to contribute to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States. This designation may include a discharge from any conveyance or system of conveyances used for collecting and conveying storm water runoff or a system of discharges from municipal separate storm sewers, except for those discharges from conveyances which do not require a permit under paragraph (a)(2) of this section or agricultural storm water runoff which is exempted from the definition of point source at § 122.2.
(A) The location of the discharge with respect to waters of the United States as defined at 40 CFR 122.2.
(B) The size of the discharge;
(C) The quantity and nature of the pollutants discharged to waters of the United States; and
(D) Other relevant factors.
(2) The Director may not require a permit for discharges of storm water runoff from the following:
(i) Mining operations composed entirely of flows which are from conveyances or systems of conveyances (including but not limited to pipes, conduits, ditches, and channels) used for collecting and conveying precipitation runoff and which are not contaminated by contact with or that have not come into contact with, any overburden, raw material, intermediate products, finished product, byproduct, or waste products located on the site of such operations, except in accordance with paragraph (c)(1)(iv) of this section.
(ii) All field activities or operations associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities, including activities necessary to prepare a site for drilling and for the movement and placement of drilling equipment, whether or not such field activities or operations may be considered to be construction activities, except in accordance with paragraph (c)(1)(iii) of this section. Discharges of sediment from construction activities associated with oil and gas exploration, production, processing, or treatment operations or transmission facilities are not subject to the provisions of paragraph (c)(1)(iii)(C) of this section.
EPA encourages operators of oil and gas field activities or operations to implement and maintain Best Management Practices (BMPs) to minimize discharges of pollutants, including sediment, in storm water both during and after construction activities to help ensure protection of surface water quality during storm events. Appropriate controls would be those suitable to the site conditions and consistent with generally accepted engineering design criteria and manufacturer specifications. Selection of BMPs could also be affected by seasonal or climate conditions.
(3)
(ii) The Director may either issue one system-wide permit covering all discharges from municipal separate storm sewers within a large or medium municipal storm sewer system or issue distinct permits for appropriate categories of discharges within a large or medium municipal separate storm sewer system including, but not limited to: all discharges owned or operated by the same municipality; located within the same jurisdiction; all discharges within a system that discharge to the same watershed; discharges within a system that are similar in nature; or for individual discharges from municipal separate storm sewers within the system.
(iii) The operator of a discharge from a municipal separate storm sewer which is part of a large or medium municipal separate storm sewer system must either:
(A) Participate in a permit application (to be a permittee or a co-permittee) with one or more other operators of discharges from the large or medium municipal storm sewer system which covers all, or a portion of all, discharges from the municipal separate storm sewer system;
(B) Submit a distinct permit application which only covers discharges from the municipal separate storm sewers for which the operator is responsible; or
(C) A regional authority may be responsible for submitting a permit application under the following guidelines:
(
(
(
(iv) One permit application may be submitted for all or a portion of all municipal separate storm sewers within adjacent or interconnected large or medium municipal separate storm sewer systems. The Director may issue one system-wide permit covering all, or a portion of all municipal separate storm sewers in adjacent or interconnected large or medium municipal separate storm sewer systems.
(v) Permits for all or a portion of all discharges from large or medium municipal separate storm sewer systems that are issued on a system-wide, jurisdiction-wide, watershed or other basis may specify different conditions relating to different discharges covered by the permit, including different management programs for different drainage areas which contribute storm water to the system.
(vi) Co-permittees need only comply with permit conditions relating to discharges from the municipal separate storm sewers for which they are operators.
(4)
(5)
(6)
(i) All storm water discharges associated with industrial activity that discharge through a storm water discharge system that is not a municipal separate storm sewer must be covered by an individual permit, or a permit issued to the operator of the portion of the system that discharges to waters of
(ii) Where there is more than one operator of a single system of such conveyances, all operators of storm water discharges associated with industrial activity must submit applications.
(iii) Any permit covering more than one operator shall identify the effluent limitations, or other permit conditions, if any, that apply to each operator.
(7)
(8) Whether a discharge from a municipal separate storm sewer is or is not subject to regulation under this section shall have no bearing on whether the owner or operator of the discharge is eligible for funding under title II, title III or title VI of the Clean Water Act.
(9)(i) On and after October 1, 1994, for discharges composed entirely of storm water, that are not required by paragraph (a)(1) of this section to obtain a permit, operators shall be required to obtain a NPDES permit only if:
(A) The discharge is from a small MS4 required to be regulated pursuant to § 122.32;
(B) The discharge is a storm water discharge associated with small construction activity pursuant to paragraph (b)(15) of this section;
(C) The Director, or in States with approved NPDES programs either the Director or the EPA Regional Administrator, determines that storm water controls are needed for the discharge based on wasteload allocations that are part of “total maximum daily loads” (TMDLs) that address the pollutant(s) of concern; or
(D) The Director, or in States with approved NPDES programs either the Director or the EPA Regional Administrator, determines that the discharge, or category of discharges within a geographic area, contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States.
(ii) Operators of small MS4s designated pursuant to paragraphs (a)(9)(i)(A), (a)(9)(i)(C), and (a)(9)(i)(D) of this section shall seek coverage under an NPDES permit in accordance with §§ 122.33 through 122.35. Operators of non-municipal sources designated pursuant to paragraphs (a)(9)(i)(B), (a)(9)(i)(C), and (a)(9)(i)(D) of this section shall seek coverage under an NPDES permit in accordance with paragraph (c)(1) of this section.
(iii) Operators of storm water discharges designated pursuant to paragraphs (a)(9)(i)(C) and (a)(9)(i)(D) of this section shall apply to the Director for a permit within 180 days of receipt of notice, unless permission for a later date is granted by the Director (see § 124.52(c) of this chapter).
(b)
(2)
(3)
(4)
(i) Located in an incorporated place with a population of 250,000 or more as determined by the 1990 Decennial Census by the Bureau of the Census (Appendix F of this part); or
(ii) Located in the counties listed in appendix H, except municipal separate storm sewers that are located in the incorporated places, townships or towns within such counties; or
(iii) Owned or operated by a municipality other than those described in paragraph (b)(4) (i) or (ii) of this section and that are designated by the Director as part of the large or medium
(A) Physical interconnections between the municipal separate storm sewers;
(B) The location of discharges from the designated municipal separate storm sewer relative to discharges from municipal separate storm sewers described in paragraph (b)(4)(i) of this section;
(C) The quantity and nature of pollutants discharged to waters of the United States;
(D) The nature of the receiving waters; and
(E) Other relevant factors; or
(iv) The Director may, upon petition, designate as a large municipal separate storm sewer system, municipal separate storm sewers located within the boundaries of a region defined by a storm water management regional authority based on a jurisdictional, watershed, or other appropriate basis that includes one or more of the systems described in paragraph (b)(4) (i), (ii), (iii) of this section.
(5)
(6)
(7)
(i) Located in an incorporated place with a population of 100,000 or more but less than 250,000, as determined by the 1990 Decennial Census by the Bureau of the Census (Appendix G of this part); or
(ii) Located in the counties listed in appendix I, except municipal separate storm sewers that are located in the incorporated places, townships or towns within such counties; or
(iii) Owned or operated by a municipality other than those described in paragraph (b)(7) (i) or (ii) of this section and that are designated by the Director as part of the large or medium municipal separate storm sewer system due to the interrelationship between the discharges of the designated storm sewer and the discharges from municipal separate storm sewers described under paragraph (b)(7) (i) or (ii) of this section. In making this determination the Director may consider the following factors:
(A) Physical interconnections between the municipal separate storm sewers;
(B) The location of discharges from the designated municipal separate storm sewer relative to discharges from municipal separate storm sewers described in paragraph (b)(7)(i) of this section;
(C) The quantity and nature of pollutants discharged to waters of the United States;
(D) The nature of the receiving waters; or
(E) Other relevant factors; or
(iv) The Director may, upon petition, designate as a medium municipal separate storm sewer system, municipal separate storm sewers located within the boundaries of a region defined by a storm water management regional authority based on a jurisdictional, watershed, or other appropriate basis that includes one or more of the systems described in paragraphs (b)(7) (i), (ii), (iii) of this section.
(8)
(i) Owned or operated by a State, city, town, borough, county, parish, district, association, or other public
(ii) Designed or used for collecting or conveying storm water;
(iii) Which is not a combined sewer; and
(iv) Which is not part of a Publicly Owned Treatment Works (POTW) as defined at 40 CFR 122.2.
(9)
(10)
(11)
(12)
(13)
(14)
(i) Facilities subject to storm water effluent limitations guidelines, new
(ii) Facilities classified as Standard Industrial Classifications 24 (except 2434), 26 (except 265 and 267), 28 (except 283), 29, 31l, 32 (except 323), 33, 344l, 373;
(iii) Facilities classified as Standard Industrial Classifications 10 through 14 (mineral industry) including active or inactive mining operations (except for areas of coal mining operations no longer meeting the definition of a reclamation area under 40 CFR 434.11(1) because the performance bond issued to the facility by the appropriate SMCRA authority has been released, or except for areas of non-coal mining operations which have been released from applicable State or Federal reclamation requirements after December 17, 1990) and oil and gas exploration, production, processing, or treatment operations, or transmission facilities that discharge storm water contaminated by contact with or that has come into contact with, any overburden, raw material, intermediate products, finished products, byproducts or waste products located on the site of such operations; (inactive mining operations are mining sites that are not being actively mined, but which have an identifiable owner/operator; inactive mining sites do not include sites where mining claims are being maintained prior to disturbances associated with the extraction, beneficiation, or processing of mined materials, nor sites where minimal activities are undertaken for the sole purpose of maintaining a mining claim);
(iv) Hazardous waste treatment, storage, or disposal facilities, including those that are operating under interim status or a permit under subtitle C of RCRA;
(v) Landfills, land application sites, and open dumps that receive or have received any industrial wastes (waste that is received from any of the facilities described under this subsection) including those that are subject to regulation under subtitle D of RCRA;
(vi) Facilities involved in the recycling of materials, including metal scrapyards, battery reclaimers, salvage yards, and automobile junkyards, including but limited to those classified as Standard Industrial Classification 5015 and 5093;
(vii) Steam electric power generating facilities, including coal handling sites;
(viii) Transportation facilities classified as Standard Industrial Classifications 40, 41, 42 (except 4221-25), 43, 44, 45, and 5171 which have vehicle maintenance shops, equipment cleaning operations, or airport deicing operations. Only those portions of the facility that are either involved in vehicle maintenance (including vehicle rehabilitation, mechanical repairs, painting, fueling, and lubrication), equipment cleaning operations, airport deicing operations, or which are otherwise identified under paragraphs (b)(14) (i)-(vii) or (ix)-(xi) of this section are associated with industrial activity;
(ix) Treatment works treating domestic sewage or any other sewage sludge or wastewater treatment device or system, used in the storage treatment, recycling, and reclamation of municipal or domestic sewage, including land dedicated to the disposal of sewage sludge that are located within the confines of the facility, with a design flow of 1.0 mgd or more, or required to have an approved pretreatment program under 40 CFR part 403. Not included are farm lands, domestic gardens or lands used for sludge management where sludge is beneficially reused and which are not physically located in the confines of the facility, or areas that are in compliance with section 405 of the CWA;
(x) Construction activity including clearing, grading and excavation, except operations that result in the disturbance of less than five acres of total land area. Construction activity also includes the disturbance of less than five acres of total land area that is a part of a larger common plan of development or sale if the larger common plan will ultimately disturb five acres or more;
(xi) Facilities under Standard Industrial Classifications 20, 21, 22, 23, 2434, 25, 265, 267, 27, 283, 285, 30, 31 (except 311), 323, 34 (except 3441), 35, 36, 37 (except 373), 38, 39, and 4221-25;
(15)
(i) Construction activities including clearing, grading, and excavating that result in land disturbance of equal to or greater than one acre and less than five acres. Small construction activity also includes the disturbance of less than one acre of total land area that is part of a larger common plan of development or sale if the larger common plan will ultimately disturb equal to or greater than one and less than five acres. Small construction activity does not include routine maintenance that is performed to maintain the original line and grade, hydraulic capacity, or original purpose of the facility. The Director may waive the otherwise applicable requirements in a general permit for a storm water discharge from construction activities that disturb less than five acres where:
(A) The value of the rainfall erosivity factor (“R” in the Revised Universal Soil Loss Equation) is less than five during the period of construction activity. The rainfall erosivity factor is determined in accordance with Chapter 2 of
(B) Storm water controls are not needed based on a “total maximum daily load” (TMDL) approved or established by EPA that addresses the pollutant(s) of concern or, for non-impaired waters that do not require TMDLs, an equivalent analysis that determines allocations for small construction sites for the pollutant(s) of concern or that determines that such allocations are not needed to protect water quality based on consideration of existing in-stream concentrations, expected growth in pollutant contributions from all sources, and a margin of safety. For the purpose of this paragraph, the pollutant(s) of concern include sediment or a parameter that addresses sediment (such as total suspended solids, turbidity or siltation) and any other pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from the construction activity. The operator must certify to the Director that the construction activity will take place, and storm water discharges will occur, within the drainage area addressed by the TMDL or equivalent analysis.
(ii) Any other construction activity designated by the Director, or in States with approved NPDES programs either the Director or the EPA Regional Administrator, based on the potential for contribution to a violation of a water quality standard or for significant contribution of pollutants to waters of the United States.
(16)
(i) Owned or operated by the United States, a State, city, town, borough, county, parish, district, association, or other public body (created by or pursuant to State law) having jurisdiction over disposal of sewage, industrial wastes, storm water, or other wastes, including special districts under State law such as a sewer district, flood control district or drainage district, or similar entity, or an Indian tribe or an authorized Indian tribal organization, or a designated and approved management agency under section 208 of the CWA that discharges to waters of the United States.
(ii) Not defined as “large” or “medium” municipal separate storm sewer systems pursuant to paragraphs (b)(4) and (b)(7) of this section, or designated under paragraph (a)(1)(v) of this section.
(iii) This term includes systems similar to separate storm sewer systems in municipalities, such as systems at military bases, large hospital or prison complexes, and highways and other thoroughfares. The term does not include separate storm sewers in very discrete areas, such as individual buildings.
(17)
(18)
(19)
(20)
(c)
(i) Except as provided in § 122.26(c)(1) (ii)-(iv), the operator of a storm water discharge associated with industrial activity subject to this section shall provide:
(A) A site map showing topography (or indicating the outline of drainage areas served by the outfall(s) covered in the application if a topographic map is unavailable) of the facility including: each of its drainage and discharge structures; the drainage area of each storm water outfall; paved areas and
(B) An estimate of the area of impervious surfaces (including paved areas and building roofs) and the total area drained by each outfall (within a mile radius of the facility) and a narrative description of the following: Significant materials that in the three years prior to the submittal of this application have been treated, stored or disposed in a manner to allow exposure to storm water; method of treatment, storage or disposal of such materials; materials management practices employed, in the three years prior to the submittal of this application, to minimize contact by these materials with storm water runoff; materials loading and access areas; the location, manner and frequency in which pesticides, herbicides, soil conditioners and fertilizers are applied; the location and a description of existing structural and non-structural control measures to reduce pollutants in storm water runoff; and a description of the treatment the storm water receives, including the ultimate disposal of any solid or fluid wastes other than by discharge;
(C) A certification that all outfalls that should contain storm water discharges associated with industrial activity have been tested or evaluated for the presence of non-storm water discharges which are not covered by a NPDES permit; tests for such non-storm water discharges may include smoke tests, fluorometric dye tests, analysis of accurate schematics, as well as other appropriate tests. The certification shall include a description of the method used, the date of any testing, and the on-site drainage points that were directly observed during a test;
(D) Existing information regarding significant leaks or spills of toxic or hazardous pollutants at the facility that have taken place within the three years prior to the submittal of this application;
(E) Quantitative data based on samples collected during storm events and collected in accordance with § 122.21 of this part from all outfalls containing a storm water discharge associated with industrial activity for the following parameters:
(
(
(
(
(
(
(F) Operators of a discharge which is composed entirely of storm water are exempt from the requirements of § 122.21 (g)(2), (g)(3), (g)(4), (g)(5), (g)(7)(iii), (g)(7)(iv), (g)(7)(v), and (g)(7)(viii); and
(G) Operators of new sources or new discharges (as defined in § 122.2 of this part) which are composed in part or entirely of storm water must include estimates for the pollutants or parameters listed in paragraph (c)(1)(i)(E) of this section instead of actual sampling
(ii) An operator of an existing or new storm water discharge that is associated with industrial activity solely under paragraph (b)(14)(x) of this section or is associated with small construction activity solely under paragraph (b)(15) of this section, is exempt from the requirements of § 122.21(g) and paragraph (c)(1)(i) of this section. Such operator shall provide a narrative description of:
(A) The location (including a map) and the nature of the construction activity;
(B) The total area of the site and the area of the site that is expected to undergo excavation during the life of the permit;
(C) Proposed measures, including best management practices, to control pollutants in storm water discharges during construction, including a brief description of applicable State and local erosion and sediment control requirements;
(D) Proposed measures to control pollutants in storm water discharges that will occur after construction operations have been completed, including a brief description of applicable State or local erosion and sediment control requirements;
(E) An estimate of the runoff coefficient of the site and the increase in impervious area after the construction addressed in the permit application is completed, the nature of fill material and existing data describing the soil or the quality of the discharge; and
(F) The name of the receiving water.
(iii) The operator of an existing or new discharge composed entirely of storm water from an oil or gas exploration, production, processing, or treatment operation, or transmission facility is not required to submit a permit application in accordance with paragraph (c)(1)(i) of this section, unless the facility:
(A) Has had a discharge of storm water resulting in the discharge of a reportable quantity for which notification is or was required pursuant to 40 CFR 117.21 or 40 CFR 302.6 at anytime since November 16, 1987; or
(B) Has had a discharge of storm water resulting in the discharge of a reportable quantity for which notification is or was required pursuant to 40 CFR 110.6 at any time since November 16, 1987; or
(C) Contributes to a violation of a water quality standard.
(iv) The operator of an existing or new discharge composed entirely of storm water from a mining operation is not required to submit a permit application unless the discharge has come into contact with, any overburden, raw material, intermediate products, finished product, byproduct or waste products located on the site of such operations.
(v) Applicants shall provide such other information the Director may reasonably require under § 122.21(g)(13) of this part to determine whether to issue a permit and may require any facility subject to paragraph (c)(1)(ii) of this section to comply with paragraph (c)(1)(i) of this section.
(2) [Reserved]
(d)
(1)
(i)
(ii)
(iii)
(B) A USGS 7.5 minute topographic map (or equivalent topographic map with a scale between 1:10,000 and 1:24,000 if cost effective) extending one mile beyond the service boundaries of the municipal storm sewer system covered by the permit application. The following information shall be provided:
(
(
(
(
(
(
(iv)
(B) Existing quantitative data describing the volume and quality of discharges from the municipal storm sewer, including a description of the outfalls sampled, sampling procedures and analytical methods used.
(C) A list of water bodies that receive discharges from the municipal separate storm sewer system, including downstream segments, lakes and estuaries, where pollutants from the system discharges may accumulate and cause water degradation and a brief description of known water quality impacts. At a minimum, the description of impacts shall include a description of whether the water bodies receiving such discharges have been:
(
(
(
(
(
(
(
(
(
(D)
(
(
(
(
(
(
(
(E)
(v)
(B) A description of the existing program to identify illicit connections to the municipal storm sewer system. The description should include inspection procedures and methods for detecting and preventing illicit discharges, and describe areas where this program has been implemented.
(vi)
(2)
(i)
(A) Control through ordinance, permit, contract, order or similar means, the contribution of pollutants to the municipal storm sewer by storm water discharges associated with industrial activity and the quality of storm water discharged from sites of industrial activity;
(B) Prohibit through ordinance, order or similar means, illicit discharges to the municipal separate storm sewer;
(C) Control through ordinance, order or similar means the discharge to a municipal separate storm sewer of spills, dumping or disposal of materials other than storm water;
(D) Control through interagency agreements among coapplicants the contribution of pollutants from one portion of the municipal system to another portion of the municipal system;
(E) Require compliance with conditions in ordinances, permits, contracts or orders; and
(F) Carry out all inspection, surveillance and monitoring procedures necessary to determine compliance and noncompliance with permit conditions including the prohibition on illicit discharges to the municipal separate storm sewer.
(ii)
(iii)
(A) Quantitative data from representative outfalls designated by the Director (based on information received in part 1 of the application, the Director shall designate between five and ten outfalls or field screening points as representative of the commercial, residential and industrial land use activities of the drainage area contributing to the system or, where there are less than five outfalls covered in the application, the Director shall designate all outfalls) developed as follows:
(
(
(
(
(B) Estimates of the annual pollutant load of the cumulative discharges to waters of the United States from all identified municipal outfalls and the event mean concentration of the cumulative discharges to waters of the United States from all identified municipal outfalls during a storm event (as described under § 122.21(c)(7)) for BOD
(C) A proposed schedule to provide estimates for each major outfall identified in either paragraph (d)(2)(ii) or (d)(1)(iii)(B)(
(D) A proposed monitoring program for representative data collection for the term of the permit that describes the location of outfalls or field screening points to be sampled (or the location of instream stations), why the location is representative, the frequency of sampling, parameters to be sampled, and a description of sampling equipment.
(iv)
(A) A description of structural and source control measures to reduce pollutants from runoff from commercial and residential areas that are discharged from the municipal storm sewer system that are to be implemented during the life of the permit, accompanied with an estimate of the expected reduction of pollutant loads and a proposed schedule for implementing such controls. At a minimum, the description shall include:
(
(
(
(
(
(
(B) A description of a program, including a schedule, to detect and remove (or require the discharger to the municipal separate storm sewer to obtain a separate NPDES permit for) illicit discharges and improper disposal into the storm sewer. The proposed program shall include:
(
(
(
(
(
(
(
(C) A description of a program to monitor and control pollutants in storm water discharges to municipal systems from municipal landfills, hazardous waste treatment, disposal and recovery facilities, industrial facilities that are subject to section 313 of title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA), and industrial facilities that the municipal permit applicant determines are contributing a substantial pollutant loading to the municipal storm sewer system. The program shall:
(
(
(D) A description of a program to implement and maintain structural and non-structural best management practices to reduce pollutants in storm water runoff from construction sites to the municipal storm sewer system, which shall include:
(
(
(
(
(v)
(vi)
(vii) Where more than one legal entity submits an application, the application shall contain a description of the roles and responsibilities of each legal entity and procedures to ensure effective coordination.
(viii) Where requirements under paragraph (d)(1)(iv)(E), (d)(2)(ii), (d)(2)(iii)(B) and (d)(2)(iv) of this section are not practicable or are not applicable, the Director may exclude any operator of a discharge from a municipal separate storm sewer which is designated under paragraph (a)(1)(v), (b)(4)(ii) or (b)(7)(ii) of this section from such requirements. The Director shall not exclude the operator of a discharge from a municipal separate storm sewer identified in appendix F, G, H or I of part 122, from any of the permit application requirements under this paragraph except where authorized under this section.
(e)
(1)
(ii) For any storm water discharge associated with industrial activity from a facility that is owned or operated by a municipality with a population of less than 100,000 that is not authorized by a general or individual permit, other than an airport, powerplant, or uncontrolled sanitary landfill, the permit application must be submitted to the Director by March 10, 2003.
(2) For any group application submitted in accordance with paragraph (c)(2) of this section:
(i)
(B) Any municipality with a population of less than 250,000 shall not be required to submit a part 1 application before May 18, 1992.
(C) For any storm water discharge associated with industrial activity from a facility that is owned or operated by a municipality with a population of less than 100,000 other than an airport, powerplant, or uncontrolled sanitary landfill, permit applications requirements are reserved.
(ii) Based on information in the part 1 application, the Director will approve or deny the members in the group application within 60 days after receiving part 1 of the group application.
(iii)
(B) Any municipality with a population of less than 250,000 shall not be required to submit a part 1 application before May 17, 1993.
(C) For any storm water discharge associated with industrial activity from a facility that is owned or operated by a municipality with a population of less than 100,000 other than an airport, powerplant, or uncontrolled sanitary landfill, permit applications requirements are reserved.
(iv)
(B) Facilities that are owned or operated by a municipality and that are rejected as members of part 1 group application shall submit an individual application no later than 180 days after the date of receipt of the notice of rejection or October 1, 1992, whichever is later.
(v) A facility listed under paragraph (b)(14) (i)-(xi) of this section may add on to a group application submitted in accordance with paragraph (e)(2)(i) of this section at the discretion of the Office of Water Enforcement and Permits, and only upon a showing of good cause by the facility and the group applicant; the request for the addition of the facility shall be made no later than February 18, 1992; the addition of the facility shall not cause the percentage of the facilities that are required to submit quantitative data to be less than 10%, unless there are over 100 facilities in the group that are submitting quantitative data; approval to become part of group application must be obtained from the group or the trade association representing the individual facilities.
(3) For any discharge from a large municipal separate storm sewer system;
(i) Part 1 of the application shall be submitted to the Director by November 18, 1991;
(ii) Based on information received in the part 1 application the Director will approve or deny a sampling plan under paragraph (d)(1)(iv)(E) of this section within 90 days after receiving the part 1 application;
(iii) Part 2 of the application shall be submitted to the Director by November 16, 1992.
(4) For any discharge from a medium municipal separate storm sewer system;
(i) Part 1 of the application shall be submitted to the Director by May 18, 1992.
(ii) Based on information received in the part 1 application the Director will approve or deny a sampling plan under paragraph (d)(1)(iv)(E) of this section within 90 days after receiving the part 1 application.
(iii) Part 2 of the application shall be submitted to the Director by May 17, 1993.
(5) A permit application shall be submitted to the Director within 180 days of notice, unless permission for a later date is granted by the Director (see § 124.52(c) of this chapter), for:
(i) A storm water discharge that the Director, or in States with approved NPDES programs, either the Director
(ii) A storm water discharge subject to paragraph (c)(1)(v) of this section.
(6) Facilities with existing NPDES permits for storm water discharges associated with industrial activity shall maintain existing permits. Facilities with permits for storm water discharges associated with industrial activity which expire on or after May 18, 1992 shall submit a new application in accordance with the requirements of 40 CFR 122.21 and 40 CFR 122.26(c) (Form 1, Form 2F, and other applicable Forms) 180 days before the expiration of such permits.
(7) The Director shall issue or deny permits for discharges composed entirely of storm water under this section in accordance with the following schedule:
(i)(A) Except as provided in paragraph (e)(7)(i)(B) of this section, the Director shall issue or deny permits for storm water discharges associated with industrial activity no later than October 1, 1993, or, for new sources or existing sources which fail to submit a complete permit application by October 1, 1992, one year after receipt of a complete permit application;
(B) For any municipality with a population of less than 250,000 which submits a timely Part I group application under paragraph (e)(2)(i)(B) of this section, the Director shall issue or deny permits for storm water discharges associated with industrial activity no later than May 17, 1994, or, for any such municipality which fails to submit a complete Part II group permit application by May 17, 1993, one year after receipt of a complete permit application;
(ii) The Director shall issue or deny permits for large municipal separate storm sewer systems no later than November 16, 1993, or, for new sources or existing sources which fail to submit a complete permit application by November 16, 1992, one year after receipt of a complete permit application;
(iii) The Director shall issue or deny permits for medium municipal separate storm sewer systems no later than May 17, 1994, or, for new sources or existing sources which fail to submit a complete permit application by May 17, 1993, one year after receipt of a complete permit application.
(8) For any storm water discharge associated with small construction activities identified in paragraph (b)(15)(i) of this section, see § 122.21(c)(1). Discharges from these sources require permit authorization by March 10, 2003, unless designated for coverage before then.
(9) For any discharge from a regulated small MS4, the permit application made under § 122.33 must be submitted to the Director by:
(i) March 10, 2003 if designated under § 122.32(a)(1) unless your MS4 serves a jurisdiction with a population under 10,000 and the NPDES permitting authority has established a phasing schedule under § 123.35(d)(3) (see § 122.33(c)(1)); or
(ii) Within 180 days of notice, unless the NPDES permitting authority grants a later date, if designated under § 122.32(a)(2) (see § 122.33(c)(2)).
(f)
(2) Any person may petition the Director to require a NPDES permit for a discharge which is composed entirely of storm water which contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States.
(3) The owner or operator of a municipal separate storm sewer system may petition the Director to reduce the Census estimates of the population served by such separate system to account for storm water discharged to combined sewers as defined by 40 CFR 35.2005(b)(11) that is treated in a publicly owned treatment works. In municipalities in which combined sewers are operated, the Census estimates of population may be reduced proportional to the fraction, based on estimated lengths, of the length of combined sewers over the sum of the length
(4) Any person may petition the Director for the designation of a large, medium, or small municipal separate storm sewer system as defined by paragraph (b)(4)(iv), (b)(7)(iv), or (b)(16) of this section.
(5) The Director shall make a final determination on any petition received under this section within 90 days after receiving the petition with the exception of petitions to designate a small MS4 in which case the Director shall make a final determination on the petition within 180 days after its receipt.
(g)
(1)
(i) Provide a storm resistant shelter to protect industrial materials and activities from exposure to rain, snow, snow melt, and runoff;
(ii) Complete and sign (according to § 122.22) a certification that there are no discharges of storm water contaminated by exposure to industrial materials and activities from the entire facility, except as provided in paragraph (g)(2) of this section;
(iii) Submit the signed certification to the NPDES permitting authority once every five years;
(iv) Allow the Director to inspect the facility to determine compliance with the “no exposure” conditions;
(v) Allow the Director to make any “no exposure” inspection reports available to the public upon request; and
(vi) For facilities that discharge through an MS4, upon request, submit a copy of the certification of “no exposure” to the MS4 operator, as well as allow inspection and public reporting by the MS4 operator.
(2)
(i) Drums, barrels, tanks, and similar containers that are tightly sealed, provided those containers are not deteriorated and do not leak (“Sealed” means banded or otherwise secured and without operational taps or valves);
(ii) Adequately maintained vehicles used in material handling; and
(iii) Final products, other than products that would be mobilized in storm water discharge (e.g., rock salt).
(3)
(ii) This conditional exclusion from the requirement for an NPDES permit is available on a facility-wide basis only, not for individual outfalls. If a facility has some discharges of storm water that would otherwise be “no exposure” discharges, individual permit requirements should be adjusted accordingly.
(iii) If circumstances change and industrial materials or activities become exposed to rain, snow, snow melt, and/or runoff, the conditions for this exclusion no longer apply. In such cases, the discharge becomes subject to enforcement for un-permitted discharge. Any conditionally exempt discharger who anticipates changes in circumstances should apply for and obtain permit authorization prior to the change of circumstances.
(iv) Notwithstanding the provisions of this paragraph, the NPDES permitting authority retains the authority to require permit authorization (and deny this exclusion) upon making a determination that the discharge causes, has a reasonable potential to cause, or contributes to an instream excursion above an applicable water quality standard, including designated uses.
(4)
(i) The legal name, address and phone number of the discharger (see § 122.21(b));
(ii) The facility name and address, the county name and the latitude and longitude where the facility is located;
(iii) The certification must indicate that none of the following materials or activities are, or will be in the foreseeable future, exposed to precipitation:
(A) Using, storing or cleaning industrial machinery or equipment, and areas where residuals from using, storing or cleaning industrial machinery or equipment remain and are exposed to storm water;
(B) Materials or residuals on the ground or in storm water inlets from spills/leaks;
(C) Materials or products from past industrial activity;
(D) Material handling equipment (except adequately maintained vehicles);
(E) Materials or products during loading/unloading or transporting activities;
(F) Materials or products stored outdoors (except final products intended for outside use, e.g., new cars, where exposure to storm water does not result in the discharge of pollutants);
(G) Materials contained in open, deteriorated or leaking storage drums, barrels, tanks, and similar containers;
(H) Materials or products handled/stored on roads or railways owned or maintained by the discharger;
(I) Waste material (except waste in covered, non-leaking containers, e.g., dumpsters);
(J) Application or disposal of process wastewater (unless otherwise permitted); and
(K) Particulate matter or visible deposits of residuals from roof stacks/vents not otherwise regulated, i.e., under an air quality control permit, and evident in the storm water outflow;
(iv) All “no exposure” certifications must include the following certification statement, and be signed in accordance with the signatory requirements of § 122.22: “I certify under penalty of law that I have read and understand the eligibility requirements for claiming a condition of “no exposure” and obtaining an exclusion from NPDES storm water permitting; and that there are no discharges of storm water contaminated by exposure to industrial activities or materials from the industrial facility identified in this document (except as allowed under paragraph (g)(2)) of this section. I understand that I am obligated to submit a no exposure certification form once every five years to the NPDES permitting authority and, if requested, to the operator of the local MS4 into which this facility discharges (where applicable). I understand that I must allow the NPDES permitting authority, or MS4 operator where the discharge is into the local MS4, to perform inspections to confirm the condition of no exposure and to make such inspection reports publicly available upon request. I understand that I must obtain coverage under an NPDES permit prior to any point source discharge of storm water from the facility. I certify under penalty of law that this document and all attachments were prepared under my direction or supervision in accordance with a system designed to assure that qualified personnel properly gathered and evaluated the information submitted. Based upon my inquiry of the person or persons who manage the system, or those persons directly involved in gathering the information, the information submitted is to the best of my knowledge and belief true, accurate and complete. I am aware there are significant penalties for submitting false information, including the possibility
(a)
(b)
(2)
(3)
(a)
(1)
(i) Designated planning areas under sections 208 and 303 of CWA;
(ii) Sewer districts or sewer authorities;
(iii) City, county, or State political boundaries;
(iv) State highway systems;
(v) Standard metropolitan statistical areas as defined by the Office of Management and Budget;
(vi) Urbanized areas as designated by the Bureau of the Census according to criteria in 30 FR 15202 (May 1, 1974); or
(vii) Any other appropriate division or combination of boundaries.
(2)
(i) Storm water point sources; or (ii) One or more categories or subcategories of point sources other than storm water point sources, or one or more categories or subcategories of “treatment works treating domestic sewage”, if the sources or “treatment works treating domestic sewage” within each category or subcategory all:
(A) Involve the same or substantially similar types of operations;
(B) Discharge the same types of wastes or engage in the same types of sludge use or disposal practices;
(C) Require the same effluent limitations, operating conditions, or standards for sewage sludge use or disposal;
(D) Require the same or similar monitoring; and (E) In the opinion of the
(3)
(4)
(ii) The general permit may exclude specified sources or areas from coverage.
(b)
(2)
(ii) The contents of the notice of intent shall be specified in the general permit and shall require the submission of information necessary for adequate program implementation, including at a minimum, the legal name and address of the owner or operator, the facility name and address, type of facility or discharges, and the receiving stream(s). General permits for storm water discharges associated with industrial activity from inactive mining, inactive oil and gas operations, or inactive landfills occurring on Federal lands where an operator cannot be identified may contain alternative notice of intent requirements. All notices of intent shall be signed in accordance with § 122.22. Notices of intent for coverage under a general permit for concentrated animal feeding operations must include the information specified in § 122.21(i)(1), including a topographic map.
(iii) General permits shall specify the deadlines for submitting notices of intent to be covered and the date(s) when a discharger is authorized to discharge under the permit;
(iv) General permits shall specify whether a discharger (or treatment works treating domestic sewage) that has submitted a complete and timely notice of intent to be covered in accordance with the general permit and that is eligible for coverage under the permit, is authorized to discharge, (or in the case of a sludge disposal permit, to engage in a sludge use or disposal practice), in accordance with the permit either upon receipt of the notice of intent by the Director, after a waiting period specified in the general permit, on a date specified in the general permit, or upon receipt of notification of inclusion by the Director. Coverage may be terminated or revoked in accordance with paragraph (b)(3) of this section.
(v) Discharges other than discharges from publicly owned treatment works, combined sewer overflows, municipal separate storm sewer systems, primary industrial facilities, and storm water discharges associated with industrial activity, may, at the discretion of the Director, be authorized to discharge
(vi) The Director may notify a discharger (or treatment works treating domestic sewage) that it is covered by a general permit, even if the discharger (or treatment works treating domestic sewage) has not submitted a notice of intent to be covered. A discharger (or treatment works treating domestic sewage) so notified may request an individual permit under paragraph (b)(3)(iii) of this section.
(3)
(A) The discharger or “treatment works treating domestic sewage” is not in compliance with the conditions of the general NPDES permit;
(B) A change has occurred in the availability of demonstrated technology or practices for the control or abatement of pollutants applicable to the point source or treatment works treating domestic sewage;
(C) Effluent limitation guidelines are promulgated for point sources covered by the general NPDES permit;
(D) A Water Quality Management plan containing requirements applicable to such point sources is approved;
(E) Circumstances have changed since the time of the request to be covered so that the discharger is no longer appropriately controlled under the general permit, or either a temporary or permanent reduction or elimination of the authorized discharge is necessary;
(F) Standards for sewage sludge use or disposal have been promulgated for the sludge use and disposal practice covered by the general NPDES permit; or
(G) The discharge(s) is a significant contributor of pollutants. In making this determination, the Director may consider the following factors:
(
(
(
(
(ii)
(iii) Any owner or operator authorized by a general permit may request to be excluded from the coverage of the general permit by applying for an individual permit. The owner or operator shall submit an application under § 122.21, with reasons supporting the request, to the Director no later than 90 days after the publication by EPA of the general permit in the
(iv) When an individual NPDES permit is issued to an owner or operator
(v) A source excluded from a general permit solely because it already has an individual permit may request that the individual permit be revoked, and that it be covered by the general permit. Upon revocation of the individual permit, the general permit shall apply to the source.
(c)
(2) Any interested person, including any prospective permittee, may petition the Regional Administrator to issue a general permit. Unless the Regional Administrator determines under paragraph (c)(1) of this section that no general permit is appropriate, he shall promptly provide a project decision schedule covering the issuance of the general permit or permits for any lease sale area for which the Department of the Interior has published a draft environmental impact statement. The project decision schedule shall meet the requirements of § 124.3(g), and shall include a schedule providing for the issuance of the final general permit or permits not later than the date of the final notice of sale projected by the Department of the Interior or six months after the date of the request, whichever is later. The Regional Administrator may, at his discretion, issue a project decision schedule for offshore oil and gas facilities in the territorial seas.
(3) Nothing in this paragraph (c) shall affect the authority of the Regional Administrator to require an individual permit under § 122.28(b)(3)(i) (A) through (G).
(a)
(2)
(3)
(4)
(5)
(b)
(i) It is constructed at a site at which no other source is located; or
(ii) It totally replaces the process or production equipment that causes the discharge of pollutants at an existing source; or
(iii) Its processes are substantially independent of an existing source at the same site. In determining whether these processes are substantially independent, the Director shall consider such factors as the extent to which the new facility is integrated with the existing plant; and the extent to which the new facility is engaged in the same general type of activity as the existing source.
(2) A source meeting the requirements of paragraphs (b)(1) (i), (ii), or (iii) of this section is a new source only if a new source performance standard is independently applicable to it. If there is no such independently applicable standard, the source is a new discharger. See § 122.2.
(3) Construction on a site at which an existing source is located results in a modification subject to § 122.62 rather than a new source (or a new discharger) if the construction does not create a new building, structure, facility, or installation meeting the criteria of paragraph (b)(1) (ii) or (iii) of this section but otherwise alters, replaces, or adds to existing process or production equipment.
(4) Construction of a new source as defined under § 122.2 has commenced if the owner or operator has:
(i) Begun, or caused to begin as part of a continuous on-site construction program:
(A) Any placement, assembly, or installation of facilities or equipment; or
(B) Significant site preparation work including clearing, excavation or removal of existing buildings, structures, or facilities which is necessary for the placement, assembly, or installation of new source facilities or equipment; or
(ii) Entered into a binding contractual obligation for the purchase of facilities or equipment which are intended to be used in its operation with a reasonable time. Options to purchase or contracts which can be terminated or modified without substantial loss, and contracts for feasibility engineering, and design studies do not constitute a contractual obligation under the paragraph.
(c)
(i) By EPA may be a major Federal action significantly affecting the quality of the human environment within the meaning of the National Environmental Policy Act of 1969 (NEPA), 33 U.S.C. 4321
(ii) By an NPDES approved State is not a Federal action and therefore does not require EPA to conduct an environmental review.
(2) An EIS prepared under this paragraph shall include a recommendation either to issue or deny the permit.
(i) If the recommendation is to deny the permit, the final EIS shall contain the reasons for the recommendation and list those measures, if any, which the applicant could take to cause the recommendation to be changed;
(ii) If the recommendation is to issue the permit, the final EIS shall recommend the actions, if any, which the permittee should take to prevent or minimize any adverse environmental impacts;
(3) The Regional Administrator, to the extent allowed by law, shall issue, condition (other than imposing effluent limitations), or deny the new source NPDES permit following a complete evaluation of any significant beneficial and adverse impacts of the proposed action and a review of the recommendations contained in the EIS or finding of no significant impact.
(d)
(1) Except as provided in paragraph (d)(2) of this section, any new discharger, the construction of which commenced after October 18, 1972, or new source which meets the applicable promulgated new source performance standards before the commencement of discharge, may not be subject to any more stringent new source performance standards or to any more stringent technology-based standards under section 301(b)(2) of CWA for the soonest ending of the following periods:
(i) Ten years from the date that construction is completed;
(ii) Ten years from the date the source begins to discharge process or other nonconstruction related wastewater; or
(iii) The period of depreciation or amortization of the facility for the purposes of section 167 or 169 (or both) of the Internal Revenue Code of 1954.
(2) The protection from more stringent standards of performance afforded by paragraph (d)(1) of this section does not apply to:
(i) Additional or more stringent permit conditions which are not technology based; for example, conditions based on water quality standards, or toxic effluent standards or prohibitions under section 307(a) of CWA; or
(ii) Additional permit conditions in accordance with § 125.3 controlling toxic pollutants or hazardous substances which are not controlled by new source performance standards. This includes permit conditions controlling pollutants other than those identified as toxic pollutants or hazardous substances when control of these pollutants has been specifically identified as the method to control the toxic pollutants or hazardous substances.
(3) When an NPDES permit issued to a source with a “protection period” under paragraph (d)(1) of this section will expire on or after the expiration of the protection period, that permit shall require the owner or operator of the source to comply with the requirements of section 301 and any other then applicable requirements of CWA immediately upon the expiration of the protection period. No additional period for achieving compliance with these requirements may be allowed except when necessary to achieve compliance with requirements promulgated less than 3 years before the expiration of the protection period.
(4) The owner or operator of a new source, a new discharger which commenced discharge after August 13, 1979, or a recommencing discharger shall install and have in operating condition, and shall “start-up” all pollution control equipment required to meet the conditions of its permits before beginning to discharge. Within the shortest feasible time (not to exceed 90 days), the owner or operator must meet all permit conditions. The requirements of this paragraph do not apply if the owner or operator is issued a permit containing a compliance schedule under § 122.47(a)(2).
(5) After the effective date of new source performance standards, it shall be unlawful for any owner or operator of any new source to operate the source in violation of those standards applicable to the source.
(a) Sections 122.30 through 122.37 are written in a “readable regulation” format that includes both rule requirements and EPA guidance that is not legally binding. EPA has clearly distinguished its recommended guidance from the rule requirements by putting the guidance in a separate paragraph headed by the word “guidance”.
(b) Under the statutory mandate in section 402(p)(6) of the Clean Water Act, the purpose of this portion of the storm water program is to designate additional sources that need to be regulated to protect water quality and to establish a comprehensive storm water program to regulate these sources. (Because the storm water program is part of the National Pollutant Discharge Elimination System (NPDES) Program, you should also refer to § 122.1 which addresses the broader purpose of the NPDES program.)
(c) Storm water runoff continues to harm the nation's waters. Runoff from lands modified by human activities can harm surface water resources in several ways including by changing natural hydrologic patterns and by elevating pollutant concentrations and loadings. Storm water runoff may contain or mobilize high levels of contaminants, such as sediment, suspended solids, nutrients, heavy metals, pathogens, toxins, oxygen-demanding substances, and floatables.
(d) EPA strongly encourages partnerships and the watershed approach as the management framework for efficiently, effectively, and consistently protecting and restoring aquatic ecosystems and protecting public health.
As a Tribe you may:
(a) Be authorized to operate the NPDES program including the storm water program, after EPA determines that you are eligible for treatment in the same manner as a State under §§ 123.31 through 123.34 of this chapter. (If you do not have an authorized NPDES program, EPA implements the program for discharges on your reservation as well as other Indian country, generally.);
(b) Be classified as an owner of a regulated small MS4, as defined in § 122.32. (Designation of your Tribe as an owner of a small MS4 for purposes of this part is an approach that is consistent with EPA's 1984 Indian Policy of operating on a government-to-government basis with EPA looking to Tribes as the lead governmental authorities to address environmental issues on their reservations as appropriate. If you operate a separate storm sewer system that meets the definition of a regulated small MS4, you are subject to the requirements under §§ 122.33 through 122.35. If you are not designated as a regulated small MS4, you may ask EPA to designate you as such for the purposes of this part.); or
(c) Be a discharger of storm water associated with industrial activity or small construction activity under §§ 122.26(b)(14) or (b)(15), in which case you must meet the applicable requirements. Within Indian country, the NPDES permitting authority is generally EPA, unless you are authorized to administer the NPDES program.
(a) Unless you qualify for a waiver under paragraph (c) of this section, you are regulated if you operate a small MS4, including but not limited to systems operated by federal, State, Tribal, and local governments, including State departments of transportation; and:
(1) Your small MS4 is located in an urbanized area as determined by the latest Decennial Census by the Bureau of the Census. (If your small MS4 is not located entirely within an urbanized area, only the portion that is within the urbanized area is regulated); or
(2) You are designated by the NPDES permitting authority, including where the designation is pursuant to §§ 123.35(b)(3) and (b)(4) of this chapter, or is based upon a petition under § 122.26(f).
(b) You may be the subject of a petition to the NPDES permitting authority to require an NPDES permit for your discharge of storm water. If the NPDES permitting authority determines that you need a permit, you are required to comply with §§ 122.33 through 122.35.
(c) The NPDES permitting authority may waive the requirements otherwise applicable to you if you meet the criteria of paragraph (d) or (e) of this section. If you receive a waiver under this section, you may subsequently be required to seek coverage under an NPDES permit in accordance with § 122.33(a) if circumstances change. (See also § 123.35(b) of this chapter.)
(d) The NPDES permitting authority may waive permit coverage if your MS4 serves a population of less than 1,000 within the urbanized area and you meet the following criteria:
(1) Your system is not contributing substantially to the pollutant loadings of a physically interconnected MS4 that is regulated by the NPDES storm water program (see § 123.35(b)(4) of this chapter); and
(2) If you discharge any pollutant(s) that have been identified as a cause of impairment of any water body to which you discharge, storm water controls are not needed based on wasteload allocations that are part of an EPA approved or established “total maximum daily load” (TMDL) that addresses the pollutant(s) of concern.
(e) The NPDES permitting authority may waive permit coverage if your MS4 serves a population under 10,000 and you meet the following criteria:
(1) The permitting authority has evaluated all waters of the U.S., including small streams, tributaries, lakes, and ponds, that receive a discharge from your MS4;
(2) For all such waters, the permitting authority has determined that storm water controls are not needed based on wasteload allocations that are part of an EPA approved or established TMDL that addresses the pollutant(s) of concern or, if a TMDL has not been developed or approved, an equivalent analysis that determines sources and allocations for the pollutant(s) of concern;
(3) For the purpose of this paragraph (e), the pollutant(s) of concern include biochemical oxygen demand (BOD), sediment or a parameter that addresses sediment (such as total suspended solids, turbidity or siltation), pathogens, oil and grease, and any pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from your MS4; and
(4) The permitting authority has determined that future discharges from your MS4 do not have the potential to result in exceedances of water quality standards, including impairment of designated uses, or other significant water quality impacts, including habitat and biological impacts.
(a) If you operate a regulated small MS4 under § 122.32, you must seek coverage under a NPDES permit issued by your NPDES permitting authority. If you are located in an NPDES authorized State, Tribe, or Territory, then that State, Tribe, or Territory is your NPDES permitting authority. Otherwise, your NPDES permitting authority is the EPA Regional Office.
(b) You must seek authorization to discharge under a general or individual NPDES permit, as follows:
(1) If your NPDES permitting authority has issued a general permit applicable to your discharge and you are seeking coverage under the general permit, you must submit a Notice of Intent (NOI) that includes the information on your best management practices and measurable goals required by § 122.34(d). You may file your own NOI, or you and other municipalities or governmental entities may jointly submit an NOI. If you want to share responsibilities for meeting the minimum measures with other municipalities or governmental entities, you must submit an NOI that describes which minimum measures you will implement and identify the entities that will implement the other minimum measures within the area served by your MS4. The general permit will explain any other steps necessary to obtain permit authorization.
(2)(i) If you are seeking authorization to discharge under an individual permit and wish to implement a program under § 122.34, you must submit an application to your NPDES permitting authority that includes the information required under §§ 122.21(f) and 122.34(d), an estimate of square mileage served by your small MS4, and any additional information that your NPDES permitting authority requests. A storm sewer map that satisfies the requirement of § 122.34(b)(3)(i) will satisfy the map requirement in § 122.21(f)(7).
(ii) If you are seeking authorization to discharge under an individual permit and wish to implement a program that is different from the program under § 122.34, you will need to comply with the permit application requirements of § 122.26(d). You must submit both Parts of the application requirements in §§ 122.26(d)(1) and (2) by March 10, 2003. You do not need to submit the information required by §§ 122.26(d)(1)(ii) and (d)(2) regarding your legal authority, unless you intend for the permit writer to take such information into account when developing your other permit conditions.
(iii) If allowed by your NPDES permitting authority, you and another regulated entity may jointly apply under either paragraph (b)(2)(i) or (b)(2)(ii) of this section to be co-permittees under an individual permit.
(3) If your small MS4 is in the same urbanized area as a medium or large MS4 with an NPDES storm water permit and that other MS4 is willing to have you participate in its storm water program, you and the other MS4 may jointly seek a modification of the other MS4 permit to include you as a limited co-permittee. As a limited co-permittee, you will be responsible for compliance with the permit's conditions applicable to your jurisdiction. If you choose this option you will need to comply with the permit application requirements of § 122.26, rather than the requirements of § 122.34. You do not need to comply with the specific application requirements of § 122.26(d)(1)(iii) and (iv) and (d)(2)(iii) (discharge characterization). You may satisfy the requirements in § 122.26 (d)(1)(v) and (d)(2)(iv) (identification of a management program) by referring to the other MS4's storm water management program.
(4) Guidance: In referencing an MS4's storm water management program, you should briefly describe how the existing plan will address discharges from your small MS4 or would need to be supplemented in order to adequately address your discharges. You should also explain your role in coordinating storm water pollutant control activities in your MS4, and detail the resources available to you to accomplish the plan.
(c) If you operate a regulated small MS4:
(1) Designated under § 122.32(a)(1), you must apply for coverage under an NPDES permit, or apply for a modification of an existing NPDES permit under paragraph (b)(3) of this section by March 10, 2003, unless your MS4 serves a jurisdiction with a population under 10,000 and the NPDES permitting authority has established a phasing schedule under § 123.35(d)(3) of this chapter.
(2) Designated under § 122.32(a)(2), you must apply for coverage under an NPDES permit, or apply for a modification of an existing NPDES permit under paragraph (b)(3) of this section, within 180 days of notice, unless the NPDES permitting authority grants a later date.
(a) Your NPDES MS4 permit will require at a minimum that you develop, implement, and enforce a storm water management program designed to reduce the discharge of pollutants from your MS4 to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act. Your storm water management program must include the minimum control measures described in paragraph (b) of this section unless you apply for a permit under § 122.26(d). For purposes of this section, narrative effluent limitations requiring implementation of best management practices (BMPs) are generally the most appropriate form of effluent limitations when designed to satisfy technology requirements (including reductions of pollutants to the maximum extent practicable) and to protect water quality. Implementation of best management practices consistent with the provisions of the storm water management program required pursuant to this section and the provisions of the permit required pursuant to § 122.33 constitutes compliance with the standard of reducing pollutants to the “maximum extent practicable.” Your NPDES permitting authority will specify a time period of up to 5 years from the date of permit issuance for you to develop and implement your program.
(b)
(ii) Guidance: You may use storm water educational materials provided by your State, Tribe, EPA, environmental, public interest or trade organizations, or other MS4s. The public education program should inform individuals and households about the steps they can take to reduce storm water pollution, such as ensuring proper septic system maintenance, ensuring the proper use and disposal of landscape and garden chemicals including fertilizers and pesticides, protecting and restoring riparian vegetation, and properly disposing of used motor oil or household hazardous wastes. EPA recommends that the program inform individuals and groups how to become involved in local stream and beach restoration activities as well as activities that are coordinated by youth service and conservation corps or other citizen groups. EPA recommends that the public education program be tailored, using a mix of locally appropriate strategies, to target specific audiences and communities. Examples of strategies include distributing brochures or fact sheets, sponsoring speaking engagements before community groups, providing public service announcements, implementing educational programs targeted at school age children, and conducting community-based projects such as storm drain stenciling, and watershed and beach cleanups. In addition, EPA recommends that some of the materials or outreach programs be directed toward targeted groups of commercial, industrial, and institutional entities likely to have significant storm water impacts. For example, providing information to restaurants on the impact of grease clogging storm drains and to garages on the impact of oil discharges. You are encouraged to tailor your outreach program to address the viewpoints and concerns of all communities, particularly minority and disadvantaged communities, as well as any special concerns relating to children.
(2)
(ii) Guidance: EPA recommends that the public be included in developing, implementing, and reviewing your storm water management program and that the public participation process should make efforts to reach out and engage all economic and ethnic groups. Opportunities for members of the public to participate in program development and implementation include serving as citizen representatives on a local storm water management panel, attending public hearings, working as citizen volunteers to educate other individuals about the program, assisting in program coordination with other pre-existing programs, or participating in volunteer monitoring efforts. (Citizens should obtain approval where necessary for lawful access to monitoring sites.)
(3)
(ii) You must:
(A) Develop, if not already completed, a storm sewer system map, showing the location of all outfalls and the names and location of all waters of the United States that receive discharges from those outfalls;
(B) To the extent allowable under State, Tribal or local law, effectively prohibit, through ordinance, or other regulatory mechanism, non-storm water discharges into your storm sewer system and implement appropriate enforcement procedures and actions;
(C) Develop and implement a plan to detect and address non-storm water discharges, including illegal dumping, to your system; and
(D) Inform public employees, businesses, and the general public of hazards associated with illegal discharges and improper disposal of waste.
(iii) You need address the following categories of non-storm water discharges or flows (i.e., illicit discharges) only if you identify them as significant contributors of pollutants to your small MS4: water line flushing, landscape irrigation, diverted stream flows, rising ground waters, uncontaminated ground water infiltration (as defined at 40 CFR 35.2005(20)), uncontaminated
(iv) Guidance: EPA recommends that the plan to detect and address illicit discharges include the following four components: procedures for locating priority areas likely to have illicit discharges; procedures for tracing the source of an illicit discharge; procedures for removing the source of the discharge; and procedures for program evaluation and assessment. EPA recommends visually screening outfalls during dry weather and conducting field tests of selected pollutants as part of the procedures for locating priority areas. Illicit discharge education actions may include storm drain stenciling, a program to promote, publicize, and facilitate public reporting of illicit connections or discharges, and distribution of outreach materials.
(4)
(ii) Your program must include the development and implementation of, at a minimum:
(A) An ordinance or other regulatory mechanism to require erosion and sediment controls, as well as sanctions to ensure compliance, to the extent allowable under State, Tribal, or local law;
(B) Requirements for construction site operators to implement appropriate erosion and sediment control best management practices;
(C) Requirements for construction site operators to control waste such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality;
(D) Procedures for site plan review which incorporate consideration of potential water quality impacts;
(E) Procedures for receipt and consideration of information submitted by the public, and
(F) Procedures for site inspection and enforcement of control measures.
(iii) Guidance: Examples of sanctions to ensure compliance include non-monetary penalties, fines, bonding requirements and/or permit denials for non-compliance. EPA recommends that procedures for site plan review include the review of individual pre-construction site plans to ensure consistency with local sediment and erosion control requirements. Procedures for site inspections and enforcement of control measures could include steps to identify priority sites for inspection and enforcement based on the nature of the construction activity, topography, and the characteristics of soils and receiving water quality. You are encouraged to provide appropriate educational and training measures for construction site operators. You may wish to require a storm water pollution prevention plan for construction sites within your jurisdiction that discharge into your system. See § 122.44(s) (NPDES permitting authorities' option to incorporate qualifying State, Tribal and local erosion and sediment control programs into NPDES permits for storm water discharges from construction sites). Also see § 122.35(b) (The NPDES permitting authority may recognize that another government entity, including the
(5)
(ii) You must:
(A) Develop and implement strategies which include a combination of structural and/or non-structural best management practices (BMPs) appropriate for your community;
(B) Use an ordinance or other regulatory mechanism to address post-construction runoff from new development and redevelopment projects to the extent allowable under State, Tribal or local law; and
(C) Ensure adequate long-term operation and maintenance of BMPs.
(iii) Guidance: If water quality impacts are considered from the beginning stages of a project, new development and potentially redevelopment provide more opportunities for water quality protection. EPA recommends that the BMPs chosen: be appropriate for the local community; minimize water quality impacts; and attempt to maintain pre-development runoff conditions. In choosing appropriate BMPs, EPA encourages you to participate in locally-based watershed planning efforts which attempt to involve a diverse group of stakeholders including interested citizens. When developing a program that is consistent with this measure's intent, EPA recommends that you adopt a planning process that identifies the municipality's program goals (
(6)
(ii) Guidance: EPA recommends that, at a minimum, you consider the following in developing your program: maintenance activities, maintenance schedules, and long-term inspection procedures for structural and non-structural storm water controls to reduce floatables and other pollutants discharged from your separate storm sewers; controls for reducing or eliminating the discharge of pollutants from streets, roads, highways, municipal parking lots, maintenance and storage yards, fleet or maintenance shops with outdoor storage areas, salt/sand storage locations and snow disposal areas operated by you, and waste transfer stations; procedures for properly disposing of waste removed from the separate storm sewers and areas listed above (such as dredge spoil, accumulated sediments, floatables, and other debris); and ways to ensure that new flood management projects assess the impacts on water quality and examine existing projects for incorporating additional water quality protection devices or practices. Operation and maintenance should be an integral component of all storm water management programs. This measure is intended to improve the efficiency of these programs and require new programs where necessary. Properly developed and implemented operation and maintenance programs reduce the risk of water quality problems.
(c) If an existing qualifying local program requires you to implement one or more of the minimum control measures of paragraph (b) of this section, the NPDES permitting authority may include conditions in your NPDES permit that direct you to follow that qualifying program's requirements rather than the requirements of paragraph (b) of this section. A qualifying local program is a local, State or Tribal municipal storm water management program that imposes, at a minimum, the relevant requirements of paragraph (b) of this section.
(d)(1) In your permit application (either a notice of intent for coverage under a general permit or an individual permit application), you must identify and submit to your NPDES permitting authority the following information:
(i) The best management practices (BMPs) that you or another entity will implement for each of the storm water minimum control measures at paragraphs (b)(1) through (b)(6) of this section;
(ii) The measurable goals for each of the BMPs including, as appropriate, the months and years in which you will undertake required actions, including interim milestones and the frequency of the action; and
(iii) The person or persons responsible for implementing or coordinating your storm water management program.
(2) If you obtain coverage under a general permit, you are not required to meet any measurable goal(s) identified in your notice of intent in order to demonstrate compliance with the minimum control measures in paragraphs (b)(3) through (b)(6) of this section unless, prior to submitting your NOI, EPA or your State or Tribe has provided or issued a menu of BMPs that addresses each such minimum measure. Even if no regulatory authority issues the menu of BMPs, however, you still must comply with other requirements of the general permit, including good faith implementation of BMPs designed to comply with the minimum measures.
(3) Guidance: Either EPA or your State or Tribal permitting authority will provide a menu of BMPs. You may choose BMPs from the menu or select others that satisfy the minimum control measures.
(e)(1) You must comply with any more stringent effluent limitations in your permit, including permit requirements that modify, or are in addition to, the minimum control measures
(2) Guidance: EPA strongly recommends that until the evaluation of the storm water program in § 122.37, no additional requirements beyond the minimum control measures be imposed on regulated small MS4s without the agreement of the operator of the affected small MS4, except where an approved TMDL or equivalent analysis provides adequate information to develop more specific measures to protect water quality.
(f) You must comply with other applicable NPDES permit requirements, standards and conditions established in the individual or general permit, developed consistent with the provisions of §§ 122.41 through 122.49, as appropriate.
(g)
The NPDES permitting authority may determine monitoring requirements for you in accordance with State/Tribal monitoring plans appropriate to your watershed. Participation in a group monitoring program is encouraged.
(2)
(3)
(i) The status of compliance with permit conditions, an assessment of the appropriateness of your identified best management practices and progress towards achieving your identified measurable goals for each of the minimum control measures;
(ii) Results of information collected and analyzed, including monitoring data, if any, during the reporting period;
(iii) A summary of the storm water activities you plan to undertake during the next reporting cycle;
(iv) A change in any identified best management practices or measurable goals for any of the minimum control measures; and
(v) Notice that you are relying on another governmental entity to satisfy some of your permit obligations (if applicable).
(a) You may rely on another entity to satisfy your NPDES permit obligations to implement a minimum control measure if:
(1) The other entity, in fact, implements the control measure;
(2) The particular control measure, or component thereof, is at least as stringent as the corresponding NPDES permit requirement; and
(3) The other entity agrees to implement the control measure on your behalf. In the reports you must submit under § 122.34(g)(3), you must also specify that you rely on another entity to satisfy some of your permit obligations. If you are relying on another governmental entity regulated under section 122 to satisfy all of your permit obligations, including your obligation to file periodic reports required by § 122.34(g)(3), you must note that fact in your NOI, but you are not required to file the periodic reports. You remain responsible for compliance with your permit obligations if the other entity fails to implement the control measure
(b) In some cases, the NPDES permitting authority may recognize, either in your individual NPDES permit or in an NPDES general permit, that another governmental entity is responsible under an NPDES permit for implementing one or more of the minimum control measures for your small MS4 or that the permitting authority itself is responsible. Where the permitting authority does so, you are not required to include such minimum control measure(s) in your storm water management program. (For example, if a State or Tribe is subject to an NPDES permit that requires it to administer a program to control construction site runoff at the State or Tribal level and that program satisfies all of the requirements of § 122.34(b)(4), you could avoid responsibility for the construction measure, but would be responsible for the remaining minimum control measures.) Your permit may be reopened and modified to include the requirement to implement a minimum control measure if the entity fails to implement it.
NPDES permits are federally enforceable. Violators may be subject to the enforcement actions and penalties described in Clean Water Act sections 309 (b), (c), and (g) and 505, or under applicable State, Tribal, or local law. Compliance with a permit issued pursuant to section 402 of the Clean Water Act is deemed compliance, for purposes of sections 309 and 505, with sections 301, 302, 306, 307, and 403, except any standard imposed under section 307 for toxic pollutants injurious to human health. If you are covered as a co-permittee under an individual permit or under a general permit by means of a joint Notice of Intent you remain subject to the enforcement actions and penalties for the failure to comply with the terms of the permit in your jurisdiction except as set forth in § 122.35(b).
EPA will evaluate the small MS4 regulations at §§ 122.32 through 122.36 and § 123.35 of this chapter after December 10, 2012 and make any necessary revisions. (EPA intends to conduct an enhanced research effort and compile a comprehensive evaluation of the NPDES MS4 storm water program. EPA will re-evaluate the regulations based on data from the NPDES MS4 storm water program, from research on receiving water impacts from storm water, and the effectiveness of best management practices (BMPs), as well as other relevant information sources.)
The following conditions apply to all NPDES permits. Additional conditions applicable to NPDES permits are in § 122.42. All conditions applicable to NPDES permits shall be incorporated into the permits either expressly or by reference. If incorporated by reference, a specific citation to these regulations (or the corresponding approved State regulations) must be given in the permit.
(a)
(1) The permittee shall comply with effluent standards or prohibitions established under section 307(a) of the Clean Water Act for toxic pollutants and with standards for sewage sludge use or disposal established under section 405(d) of the CWA within the time
(2) The Clean Water Act provides that any person who violates section 301, 302, 306, 307, 308, 318 or 405 of the Act, or any permit condition or limitation implementing any such sections in a permit issued under section 402, or any requirement imposed in a pretreatment program approved under sections 402(a)(3) or 402(b)(8) of the Act, is subject to a civil penalty not to exceed $25,000 per day for each violation. The Clean Water Act provides that any person who
(3) Any person may be assessed an administrative penalty by the Administrator for violating section 301, 302, 306, 307, 308, 318 or 405 of this Act, or any permit condition or limitation implementing any of such sections in a permit issued under section 402 of this Act. Administrative penalties for Class I violations are not to exceed $10,000 per violation, with the maximum amount of any Class I penalty assessed not to exceed $25,000. Penalties for Class II violations are not to exceed $10,000 per day for each day during which the violation continues, with the maximum amount of any Class II penalty not to exceed $125,000.
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(1) Enter upon the permittee's premises where a regulated facility or activity is located or conducted, or where records must be kept under the conditions of this permit;
(2) Have access to and copy, at reasonable times, any records that must be kept under the conditions of this permit;
(3) Inspect at reasonable times any facilities, equipment (including monitoring and control equipment), practices, or operations regulated or required under this permit; and
(4) Sample or monitor at reasonable times, for the purposes of assuring permit compliance or as otherwise authorized by the Clean Water Act, any substances or parameters at any location.
(j)
(2) Except for records of monitoring information required by this permit related to the permittee's sewage sludge use and disposal activities, which shall be retained for a period of at least five years (or longer as required by 40 CFR part 503), the permittee shall retain records of all monitoring information, including all calibration and maintenance records and all original strip chart recordings for continuous monitoring instrumentation, copies of all reports required by this permit, and records of all data used to complete the application for this permit, for a period of at least 3 years from the date of the sample, measurement, report or application. This period may be extended by request of the Director at any time.
(3) Records of monitoring information shall include:
(i) The date, exact place, and time of sampling or measurements;
(ii) The individual(s) who performed the sampling or measurements;
(iii) The date(s) analyses were performed;
(iv) The individual(s) who performed the analyses;
(v) The analytical techniques or methods used; and
(vi) The results of such analyses.
(4) Monitoring must be conducted according to test procedures approved under 40 CFR Part 136 unless another method is required under 40 CFR subchapters N or O.
(5) The Clean Water Act provides that any person who falsifies, tampers with, or knowingly renders inaccurate any monitoring device or method required to be maintained under this permit shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than 2 years, or both. If a conviction of a person is for a violation committed after a first conviction of such person under this paragraph, punishment is a fine of not more than $20,000 per day of violation, or by imprisonment of not more than 4 years, or both.
(k)
(2) The CWA provides that any person who knowingly makes any false statement, representation, or certification in any record or other document submitted or required to be maintained under this permit, including monitoring reports or reports of compliance or non-compliance shall, upon conviction, be punished by a fine of not more than $10,000 per violation, or by imprisonment for not more than 6 months per violation, or by both.
(l)
(i) The alteration or addition to a permitted facility may meet one of the criteria for determining whether a facility is a new source in § 122.29(b); or
(ii) The alteration or addition could significantly change the nature or increase the quantity of pollutants discharged. This notification applies to pollutants which are subject neither to effluent limitations in the permit, nor to notification requirements under § 122.42(a)(1).
(iii) The alteration or addition results in a significant change in the permittee's sludge use or disposal practices, and such alteration, addition, or change may justify the application of permit conditions that are different from or absent in the existing permit, including notification of additional use or disposal sites not reported during the permit application process or not reported pursuant to an approved land application plan;
(2)
(3)
(4)
(i) Monitoring results must be reported on a Discharge Monitoring Report (DMR) or forms provided or specified by the Director for reporting results of monitoring of sludge use or disposal practices.
(ii) If the permittee monitors any pollutant more frequently than required by the permit using test procedures approved under 40 CFR Part 136, or another method required for an industry-specific waste stream under 40 CFR subchapters N or O, the results of such monitoring shall be included in the calculation and reporting of the data submitted in the DMR or sludge reporting form specified by the Director.
(iii) Calculations for all limitations which require averaging of measurements shall utilize an arithmetic mean unless otherwise specified by the Director in the permit.
(5)
(6)
(ii) The following shall be included as information which must be reported within 24 hours under this paragraph.
(A) Any unanticipated bypass which exceeds any effluent limitation in the permit. (See § 122.41(g).
(B) Any upset which exceeds any effluent limitation in the permit.
(C) Violation of a maximum daily discharge limitation for any of the pollutants listed by the Director in the permit to be reported within 24 hours. (See § 122.44(g).)
(iii) The Director may waive the written report on a case-by-case basis for reports under paragraph (l)(6)(ii) of this section if the oral report has been received within 24 hours.
(7)
(8)
(m)
(ii)
(2)
(3)
(ii)
(4)
(A) Bypass was unavoidable to prevent loss of life, personal injury, or severe property damage;
(B) There were no feasible alternatives to the bypass, such as the use of auxiliary treatment facilities, retention of untreated wastes, or maintenance during normal periods of equipment downtime. This condition is not satisfied if adequate back-up equipment should have been installed in the exercise of reasonable engineering judgment to prevent a bypass which occurred during normal periods of equipment downtime or preventive maintenance; and
(C) The permittee submitted notices as required under paragraph (m)(3) of this section.
(ii) The Director may approve an anticipated bypass, after considering its adverse effects, if the Director determines that it will meet the three conditions listed above in paragraph (m)(4)(i) of this section.
(n)
(2)
(3)
(i) An upset occurred and that the permittee can identify the cause(s) of the upset;
(ii) The permitted facility was at the time being properly operated; and
(iii) The permittee submitted notice of the upset as required in paragraph (1)(6)(ii)(B) of this section (24 hour notice).
(iv) The permittee complied with any remedial measures required under paragraph (d) of this section.
(4)
The following conditions, in addition to those set forth in § 122.41, apply to all NPDES permits within the categories specified below:
(a)
(1) That any activity has occurred or will occur which would result in the discharge, on a routine or frequent basis, of any toxic pollutant which is not limited in the permit, if that discharge will exceed the highest of the following “notification levels”:
(i) One hundred micrograms per liter (100 µg/l);
(ii) Two hundred micrograms per liter (200 µg/l) for acrolein and acrylonitrile; five hundred micrograms per liter (500 µg/l) for 2,4-dinitrophenol and for 2-methyl-4,6-dinitrophenol; and one milligram per liter (1 mg/l) for antimony;
(iii) Five (5) times the maximum concentration value reported for that pollutant in the permit application in accordance with § 122.21(g)(7); or
(iv) The level established by the Director in accordance with § 122.44(f).
(2) That any activity has occurred or will occur which would result in any discharge, on a non-routine or infrequent basis, of a toxic pollutant which is not limited in the permit, if that discharge will exceed the highest of the following “notification levels”:
(i) Five hundred micrograms per liter (500 µg/l);
(ii) One milligram per liter (1 mg/l) for antimony;
(iii) Ten (10) times the maximum concentration value reported for that pollutant in the permit application in accordance with § 122.21(g)(7).
(iv) The level established by the Director in accordance with § 122.44(f).
(b)
(1) Any new introduction of pollutants into the POTW from an indirect discharger which would be subject to section 301 or 306 of CWA if it were directly discharging those pollutants; and
(2) Any substantial change in the volume or character of pollutants being introduced into that POTW by a source introducing pollutants into the POTW at the time of issuance of the permit.
(3) For purposes of this paragraph, adequate notice shall include information on (i) the quality and quantity of effluent introduced into the POTW, and (ii) any anticipated impact of the change on the quantity or quality of effluent to be discharged from the POTW.
(c)
(1) The status of implementing the components of the storm water management program that are established as permit conditions;
(2) Proposed changes to the storm water management programs that are established as permit condition. Such proposed changes shall be consistent with § 122.26(d)(2)(iii) of this part; and
(3) Revisions, if necessary, to the assessment of controls and the fiscal analysis reported in the permit application under § 122.26(d)(2)(iv) and (d)(2)(v) of this part;
(4) A summary of data, including monitoring data, that is accumulated throughout the reporting year;
(5) Annual expenditures and budget for year following each annual report;
(6) A summary describing the number and nature of enforcement actions, inspections, and public education programs;
(7) Identification of water quality improvements or degradation;
(d)
(e)
(1)
(i) Ensure adequate storage of manure, litter, and process wastewater, including procedures to ensure proper operation and maintenance of the storage facilities;
(ii) Ensure proper management of mortalities (
(iii) Ensure that clean water is diverted, as appropriate, from the production area;
(iv) Prevent direct contact of confined animals with waters of the United States;
(v) Ensure that chemicals and other contaminants handled on-site are not disposed of in any manure, litter, process wastewater, or storm water storage or treatment system unless specifically designed to treat such chemicals and other contaminants;
(vi) Identify appropriate site specific conservation practices to be implemented, including as appropriate buffers or equivalent practices, to control runoff of pollutants to waters of the United States;
(vii) Identify protocols for appropriate testing of manure, litter, process wastewater, and soil;
(viii) Establish protocols to land apply manure, litter or process wastewater in accordance with site specific nutrient management practices that ensure appropriate agricultural utilization of the nutrients in the manure, litter or process wastewater; and
(ix) Identify specific records that will be maintained to document the implementation and management of the minimum elements described in paragraphs (e)(1)(i) through (e)(1)(viii) of this section.
(2)
(A) All applicable records identified pursuant paragraph (e)(1)(ix) of this section;
(B) In addition, all CAFOs subject to 40 CFR part 412 must comply with record keeping requirements as specified in § 412.37(b) and (c) and § 412.47(b) and (c).
(ii) A copy of the CAFO's site-specific nutrient management plan must be
(3)
(4)
(i) The number and type of animals, whether in open confinement or housed under roof (beef cattle, broilers, layers, swine weighing 55 pounds or more, swine weighing less than 55 pounds, mature dairy cows, dairy heifers, veal calves, sheep and lambs, horses, ducks, turkeys, other);
(ii) Estimated amount of total manure, litter and process wastewater generated by the CAFO in the previous 12 months (tons/gallons);
(iii) Estimated amount of total manure, litter and process wastewater transferred to other person by the CAFO in the previous 12 months (tons/gallons);
(iv) Total number of acres for land application covered by the nutrient management plan developed in accordance with paragraph (e)(1) of this section;
(v) Total number of acres under control of the CAFO that were used for land application of manure, litter and process wastewater in the previous 12 months;
(vi) Summary of all manure, litter and process wastewater discharges from the production area that have occurred in the previous 12 months, including date, time, and approximate volume; and
(vii) A statement indicating whether the current version of the CAFO's nutrient management plan was developed or approved by a certified nutrient management planner.
(a) In addition to conditions required in all permits (§§ 122.41 and 122.42), the Director shall establish conditions, as required on a case-by-case basis, to provide for and assure compliance with all applicable requirements of CWA and regulations. These shall include conditions under §§ 122.46 (duration of permits), 122.47(a) (schedules of compliance), 122.48 (monitoring), and for EPA permits only 122.47(b) (alternates schedule of compliance) and 122.49 (considerations under Federal law).
(b)(1) For a State issued permit, an applicable requirement is a State statutory or regulatory requirement which takes effect prior to final administrative disposition of a permit. For a permit issued by EPA, an applicable requirement is a statutory or regulatory requirement (including any interim final regulation) which takes effect prior to the issuance of the permit. Section 124.14 (reopening of comment period) provides a means for reopening EPA permit proceedings at the discretion of the Director where new requirements become effective during the permitting process and are of sufficient magnitude to make additional proceedings desirable. For State and EPA administered programs, an applicable requirement is also any requirement which takes effect prior to the modification or revocation and reissuance of a permit, to the extent allowed in § 122.62.
(2) New or reissued permits, and to the extent allowed under § 122.62 modified or revoked and reissued permits, shall incorporate each of the applicable requirements referenced in §§ 122.44 and 122.45.
(c)
In addition to the conditions established under § 122.43(a), each NPDES permit shall include conditions meeting the following requirements when applicable.
(a)(1)
(2)
(ii) This waiver is good only for the term of the permit and is not available during the term of the first permit issued to a discharger.
(iii) Any request for this waiver must be submitted when applying for a reissued permit or modification of a reissued permit. The request must demonstrate through sampling or other technical information, including information generated during an earlier permit term that the pollutant is not present in the discharge or is present only at background levels from intake water and without any increase in the pollutant due to activities of the discharger.
(iv) Any grant of the monitoring waiver must be included in the permit as an express permit condition and the reasons supporting the grant must be documented in the permit's fact sheet or statement of basis.
(v) This provision does not supersede certification processes and requirements already established in existing effluent limitations guidelines and standards.
(b)(1)
(2)
(3) Requirements applicable to cooling water intake structures under section 316(b) of the CWA, in accordance with part 125, subparts I, J, and N of this chapter.
(c)
(d)
(1) Achieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality.
(i) Limitations must control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic pollutants) which the Director determines are or may be discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality.
(ii) When determining whether a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative or numeric criteria within a State water quality standard, the permitting authority shall use procedures which account for existing controls on point and nonpoint sources of pollution, the variability of the pollutant or pollutant parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole effluent toxicity), and where appropriate, the dilution of the effluent in the receiving water.
(iii) When the permitting authority determines, using the procedures in paragraph (d)(1)(ii) of this section, that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above the allowable ambient concentration of a State numeric criteria within a State water quality standard for an individual pollutant, the permit must contain effluent limits for that pollutant.
(iv) When the permitting authority determines, using the procedures in paragraph (d)(1)(ii) of this section, that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above the numeric criterion for whole effluent toxicity, the permit must contain effluent limits for whole effluent toxicity.
(v) Except as provided in this subparagraph, when the permitting authority determines, using the procedures in paragraph (d)(1)(ii) of this section, toxicity testing data, or other information, that a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative criterion within an applicable State water quality standard, the permit must contain effluent limits for whole effluent toxicity. Limits on whole effluent toxicity are not necessary where the permitting authority demonstrates in the fact sheet or statement of basis of the NPDES permit, using the procedures in paragraph (d)(1)(ii) of this section, that chemical-specific limits for the effluent are sufficient to attain and maintain applicable numeric and narrative State water quality standards.
(vi) Where a State has not established a water quality criterion for a specific chemical pollutant that is present in an effluent at a concentration that causes, has the reasonable potential to cause, or contributes to an excursion above a narrative criterion within an applicable State water quality standard, the permitting authority must establish effluent limits using one or more of the following options:
(A) Establish effluent limits using a calculated numeric water quality criterion for the pollutant which the permitting authority demonstrates will attain and maintain applicable narrative water quality criteria and will
(B) Establish effluent limits on a case-by-case basis, using EPA's water quality criteria, published under section 304(a) of the CWA, supplemented where necessary by other relevant information; or
(C) Establish effluent limitations on an indicator parameter for the pollutant of concern, provided:
(
(
(
(
(vii) When developing water quality-based effluent limits under this paragraph the permitting authority shall ensure that:
(A) The level of water quality to be achieved by limits on point sources established under this paragraph is derived from, and complies with all applicable water quality standards; and
(B) Effluent limits developed to protect a narrative water quality criterion, a numeric water quality criterion, or both, are consistent with the assumptions and requirements of any available wasteload allocation for the discharge prepared by the State and approved by EPA pursuant to 40 CFR 130.7.
(2) Attain or maintain a specified water quality through water quality related effluent limits established under section 302 of CWA;
(3) Conform to the conditions to a State certification under section 401 of the CWA that meets the requirements of § 124.53 when EPA is the permitting authority. If a State certification is stayed by a court of competent jurisdiction or an appropriate State board or agency, EPA shall notify the State that the Agency will deem certification waived unless a finally effective State certification is received within sixty days from the date of the notice. If the State does not forward a finally effective certification within the sixty day period, EPA shall include conditions in the permit that may be necessary to meet EPA's obligation under section 301(b)(1)(C) of the CWA;
(4) Conform to applicable water quality requirements under section 401(a)(2) of CWA when the discharge affects a State other than the certifying State;
(5) Incorporate any more stringent limitations, treatment standards, or schedule of compliance requirements established under Federal or State law or regulations in accordance with section 301(b)(1)(C) of CWA;
(6) Ensure consistency with the requirements of a Water Quality Management plan approved by EPA under section 208(b) of CWA;
(7) Incorporate section 403(c) criteria under part 125, subpart M, for ocean discharges;
(8) Incorporate alternative effluent limitations or standards where warranted by “fundamentally different factors,” under 40 CFR part 125, subpart D;
(9) Incorporate any other appropriate requirements, conditions, or limitations (other than effluent limitations) into a new source permit to the extent allowed by the National Environmental Policy Act, 42 U.S.C. 4321
(e)
(1) Limitations must control all toxic pollutants which the Director determines (based on information reported in a permit application under § 122.21(g)(7) or in a notification under § 122.42(a)(1) or on other information) are or may be discharged at a level greater than the level which can be achieved by the technology-based treatment requirements appropriate to the permittee under § 125.3(c) of this chapter; or
(2) The requirement that the limitations control the pollutants meeting the criteria of paragraph (e)(1) of this section will be satisfied by:
(i) Limitations on those pollutants; or
(ii) Limitations on other pollutants which, in the judgment of the Director, will provide treatment of the pollutants under paragraph (e)(1) of this section to the levels required by § 125.3(c).
(f)
(g)
(h)
(i)
(1) To assure compliance with permit limitations, requirements to monitor:
(i) The mass (or other measurement specified in the permit) for each pollutant limited in the permit;
(ii) The volume of effluent discharged from each outfall;
(iii) Other measurements as appropriate including pollutants in internal waste streams under § 122.45(i); pollutants in intake water for net limitations under § 122.45(f); frequency, rate of discharge, etc., for noncontinuous discharges under § 122.45(e); pollutants subject to notification requirements under § 122.42(a); and pollutants in sewage sludge or other monitoring as specified in 40 CFR part 503; or as determined to be necessary on a case-by-case basis pursuant to section 405(d)(4) of the CWA.
(iv) According to test procedures approved under 40 CFR Part 136 for the analyses of pollutants or another method is required under 40 CFR subchapters N or O. In the case of pollutants for which there are no approved methods under 40 CFR Part 136 or otherwise required under 40 CFR subchapters N or O, monitoring must be conducted according to a test procedure specified in the permit for such pollutants.
(2) Except as provided in paragraphs (i)(4) and (i)(5) of this section, requirements to report monitoring results shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge, but in no case less than once a year. For sewage sludge use or disposal practices, requirements to monitor and report results shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the sewage sludge use or disposal practice; minimally this shall be as specified in 40 CFR part 503 (where applicable), but in no case less than once a year.
(3) Requirements to report monitoring results for storm water discharges associated with industrial activity which are subject to an effluent limitation guideline shall be established on a case-by-case basis with a frequency dependent on the nature and
(4) Requirements to report monitoring results for storm water discharges associated with industrial activity (other than those addressed in paragraph (i)(3) of this section) shall be established on a case-by-case basis with a frequency dependent on the nature and effect of the discharge. At a minimum, a permit for such a discharge must require:
(i) The discharger to conduct an annual inspection of the facility site to identify areas contributing to a storm water discharge associated with industrial activity and evaluate whether measures to reduce pollutant loadings identified in a storm water pollution prevention plan are adequate and properly implemented in accordance with the terms of the permit or whether additional control measures are needed;
(ii) The discharger to maintain for a period of three years a record summarizing the results of the inspection and a certification that the facility is in compliance with the plan and the permit, and identifying any incidents of non-compliance;
(iii) Such report and certification be signed in accordance with § 122.22; and
(iv) Permits for storm water discharges associated with industrial activity from inactive mining operations may, where annual inspections are impracticable, require certification once every three years by a Registered Professional Engineer that the facility is in compliance with the permit, or alternative requirements.
(5) Permits which do not require the submittal of monitoring result reports at least annually shall require that the permittee report all instances of noncompliance not reported under § 122.41(l) (1), (4), (5), and (6) at least annually.
(j)
(1) Identify, in terms of character and volume of pollutants, any Significant Industrial Users discharging into the POTW subject to Pretreatment Standards under section 307(b) of CWA and 40 CFR part 403.
(2)(i) Submit a local program when required by and in accordance with 40 CFR part 403 to assure compliance with pretreatment standards to the extent applicable under section 307(b). The local program shall be incorporated into the permit as described in 40 CFR part 403. The program must require all indirect dischargers to the POTW to comply with the reporting requirements of 40 CFR part 403.
(ii) Provide a written technical evaluation of the need to revise local limits under 40 CFR 403.5(c)(1), following permit issuance or reissuance.
(3) For POTWs which are “sludge-only facilities,” a requirement to develop a pretreatment program under 40 CFR part 403 when the Director determines that a pretreatment program is necessary to assure compliance with Section 405(d) of the CWA.
(k)
(1) Authorized under section 304(e) of the CWA for the control of toxic pollutants and hazardous substances from ancillary industrial activities;
(2) Authorized under section 402(p) of the CWA for the control of storm water discharges;
(3) Numeric effluent limitations are infeasible; or
(4) The practices are reasonably necessary to achieve effluent limitations and standards or to carry out the purposes and intent of the CWA.
Additional technical information on BMPs and the elements of BMPs is contained in the following documents: Guidance Manual for Developing Best Management Practices (BMPs), October 1993, EPA No. 833/B-93-004, NTIS No. PB 94-178324, ERIC No. W498); Storm Water Management for Construction Activities: Developing Pollution Prevention Plans and Best Management Practices, September 1992, EPA No. 832/R-92-005, NTIS No. PB 92-235951, ERIC No. N482); Storm Water Management for Construction Activities, Developing Pollution Prevention Plans and Best Management Practices: Summary Guidance, EPA No. 833/R-92-001, NTIS No. PB 93-223550; ERIC No. W139; Storm Water Management for Industrial Activities, Developing Pollution Prevention Plans and Best Management Practices, September 1992; EPA 832/R-92-006, NTIS No. PB 92-235969, ERIC No. N477; Storm Water Management for Industrial Activities, Developing Pollution Prevention Plans and Best Management Practices: Summary Guidance, EPA 833/R-92-002, NTIS No. PB 94-133782; ERIC No. W492. Copies of those documents (or directions on how to obtain them)
These EPA guidance documents are listed here only for informational purposes; they are not binding and EPA does not intend that these guidance documents have any mandatory, regulatory effect by virtue of their listing in this note.
(l)
(2) In the case of effluent limitations established on the basis of Section 402(a)(1)(B) of the CWA, a permit may not be renewed, reissued, or modified on the basis of effluent guidelines promulgated under section 304(b) subsequent to the original issuance of such permit, to contain effluent limitations which are less stringent than the comparable effluent limitations in the previous permit.
(i) Exceptions—A permit with respect to which paragraph (l)(2) of this section applies may be renewed, reissued, or modified to contain a less stringent effluent limitation applicable to a pollutant, if—
(A) Material and substantial alterations or additions to the permitted facility occurred after permit issuance which justify the application of a less stringent effluent limitation;
(B)(
(
(C) A less stringent effluent limitation is necessary because of events over which the permittee has no control and for which there is no reasonably available remedy;
(D) The permittee has received a permit modification under section 301(c), 301(g), 301(h), 301(i), 301(k), 301(n), or 316(a); or
(E) The permittee has installed the treatment facilities required to meet the effluent limitations in the previous permit and has properly operated and maintained the facilities but has nevertheless been unable to achieve the previous effluent limitations, in which case the limitations in the reviewed, reissued, or modified permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by effluent guidelines in effect at the time of permit renewal, reissuance, or modification).
(ii)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(i) Requirements for construction site operators to implement appropriate erosion and sediment control best management practices;
(ii) Requirements for construction site operators to control waste such as discarded building materials, concrete truck washout, chemicals, litter, and sanitary waste at the construction site that may cause adverse impacts to water quality;
(iii) Requirements for construction site operators to develop and implement a storm water pollution prevention plan. (A storm water pollution prevention plan includes site descriptions, descriptions of appropriate control measures, copies of approved State, Tribal or local requirements, maintenance procedures, inspection procedures, and identification of non-storm water discharges); and
(iv) Requirements to submit a site plan for review that incorporates consideration of potential water quality impacts.
(2) For storm water discharges from construction activity identified in § 122.26(b)(14)(x), the Director may include permit conditions that incorporate qualifying State, Tribal, or local erosion and sediment control program requirements by reference. A qualifying State, Tribal or local erosion and sediment control program is one that includes the elements listed in paragraph (s)(1) of this section and any additional requirements necessary to achieve the applicable technology-based standards of “best available technology” and “best conventional technology” based on the best professional judgment of the permit writer.
(a)
(b)
(2)(i) Except in the case of POTWs or as provided in paragraph (b)(2)(ii) of this section, calculation of any permit limitations, standards, or prohibitions which are based on production (or other measure of operation) shall be based not upon the designed production capacity but rather upon a reasonable measure of actual production of the facility. For new sources or new dischargers, actual production shall be estimated using projected production. The time period of the measure of production shall correspond to the time period of the calculated permit limitations; for example, monthly production shall be used to calculate average monthly discharge limitations.
(ii)(A)(
(
(B) If the Director establishes permit conditions under paragraph (b)(2)(ii)(A) of this section:
(
(
(
(c)
(1) An applicable effluent standard or limitation has been promulgated under the CWA and specifies the limitation for the metal in the dissolved or valent or total form; or
(2) In establishing permit limitations on a case-by-case basis under § 125.3, it is necessary to express the limitation on the metal in the dissolved or valent or total form to carry out the provisions of the CWA; or
(3) All approved analytical methods for the metal inherently measure only its dissolved form (
(d)
(1) Maximum daily and average monthly discharge limitations for all dischargers other than publicly owned treatment works; and
(2) Average weekly and average monthly discharge limitations for POTWs.
(e)
(1) Frequency (for example, a batch discharge shall not occur more than once every 3 weeks);
(2) Total mass (for example, not to exceed 100 kilograms of zinc and 200 kilograms of chromium per batch discharge);
(3) Maximum rate of discharge of pollutants during the discharge (for example, not to exceed 2 kilograms of zinc per minute); and
(4) Prohibition or limitation of specified pollutants by mass, concentration, or other appropriate measure (for example, shall not contain at any time more than 0.1 mg/1 zinc or more than 250 grams (
(f)
(i) For pH, temperature, radiation, or other pollutants which cannot appropriately be expressed by mass;
(ii) When applicable standards and limitations are expressed in terms of other units of measurement; or
(iii) If in establishing permit limitations on a case-by-case basis under § 125.3, limitations expressed in terms of mass are infeasible because the mass of the pollutant discharged cannot be related to a measure of operation (for example, discharges of TSS from certain mining operations), and permit conditions ensure that dilution will not be used as a substitute for treatment.
(2) Pollutants limited in terms of mass additionally may be limited in terms of other units of measurement, and the permit shall require the permittee to comply with both limitations.
(g)
(i) The applicable effluent limitations and standards contained in 40 CFR subchapter N specifically provide that they shall be applied on a net basis; or
(ii) The discharger demonstrates that the control system it proposes or uses to meet applicable technology-based limitations and standards would, if properly installed and operated, meet the limitations and standards in the absence of pollutants in the intake waters.
(2) Credit for generic pollutants such as biochemical oxygen demand (BOD) or total suspended solids (TSS) should not be granted unless the permittee demonstrates that the constituents of the generic measure in the effluent are substantially similar to the constituents of the generic measure in the intake water or unless appropriate additional limits are placed on process water pollutants either at the outfall or elsewhere.
(3) Credit shall be granted only to the extent necessary to meet the applicable limitation or standard, up to a maximum value equal to the influent value. Additional monitoring may be necessary to determine eligibility for credits and compliance with permit limits.
(4) Credit shall be granted only if the discharger demonstrates that the intake water is drawn from the same body of water into which the discharge is made. The Director may waive this requirement if he finds that no environmental degradation will result.
(5) This section does not apply to the discharge of raw water clarifier sludge generated from the treatment of intake water.
(h)
(2) Limits on internal waste streams will be imposed only when the fact sheet under § 124.56 sets forth the exceptional circumstances which make such limitations necessary, such as when the final discharge point is inaccessible (for example, under 10 meters of water), the wastes at the point of discharge are so diluted as to make monitoring impracticable, or the interferences among pollutants at the point of discharge would make detection or analysis impracticable.
(i)
(a) NPDES permits shall be effective for a fixed term not to exceed 5 years.
(b) Except as provided in § 122.6, the term of a permit shall not be extended by modification beyond the maximum duration specified in this section.
(c) The Director may issue any permit for a duration that is less than the full allowable term under this section.
(d) A permit may be issued to expire on or after the statutory deadline set forth in section 301(b)(2) (A), (C), and (E), if the permit includes effluent limitations to meet the requirements of section 301(b)(2) (A), (C), (D), (E) and (F), whether or not applicable effluent limitations guidelines have been promulgated or approved.
(e) A determination that a particular discharger falls within a given industrial category for purposes of setting a permit expiration date under paragraph (d) of this section is not conclusive as to the discharger's inclusion in that industrial category for any other purposes, and does not prejudice any rights to challenge or change that inclusion at the time that a permit based on that determination is formulated.
(a)
(1)
(2) The first NPDES permit issued to a new source or a new discharger shall contain a schedule of compliance only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised after commencement of construction but less than three years before commencement of the relevant discharge. For recommencing dischargers, a schedule of compliance shall be available only when necessary to allow a reasonable opportunity to attain compliance with requirements issued or revised less than three years before recommencement of discharge.
(3)
(i) The time between interim dates shall not exceed 1 year, except that in the case of a schedule for compliance with standards for sewage sludge use and disposal, the time between interim dates shall not exceed six months.
(ii) If the time necessary for completion of any interim requirement (such as the construction of a control facility) is more than 1 year and is not readily divisible into stages for completion, the permit shall specify interim dates for the submission of reports of progress toward completion of the interim requirements and indicate a projected completion date.
Examples of interim requirements include: (a) Submit a complete Step 1 construction grant (for POTWs); (b) let a contract for construction of required facilities; (c) commence construction of required facilities; (d) complete construction of required facilities.
(4)
(b)
(1) If the permittee decides to cease conducting regulated activities at a given time within the term of a permit which has already been issued:
(i) The permit may be modified to contain a new or additional schedule leading to timely cessation of activities; or
(ii) The permittee shall cease conducting permitted activities before non-compliance with any interim or final compliance schedule requirement already specified in the permit.
(2) If the decision to cease conducting regulated activities is made before issuance of a permit whose term will include the termination date, the permit shall contain a schedule leading to termination which will ensure timely compliance with applicable requirements no later than the statutory deadline.
(3) If the permittee is undecided whether to cease conducting regulated activities, the Director may issue or modify a permit to contain two schedules as follows:
(i) Both schedules shall contain an identical interim deadline requiring a final decision on whether to cease conducting regulated activities no later than a date which ensures sufficient time to comply with applicable requirements in a timely manner if the decision is to continue conducting regulated activities;
(ii) One schedule shall lead to timely compliance with applicable requirements, no later than the statutory deadline;
(iii) The second schedule shall lead to cessation of regulated activities by a date which will ensure timely compliance with applicable requirements no later than the statutory deadline.
(iv) Each permit containing two schedules shall include a requirement that after the permittee has made a final decision under paragraph (b)(3)(i) of this section it shall follow the schedule leading to compliance if the decision is to continue conducting regulated activities, and follow the schedule leading to termination if the decision is to cease conducting regulated activities.
(4) The applicant's or permittee's decision to cease conducting regulated activities shall be evidenced by a firm public commitment satisfactory to the Director, such as a resolution of the board of directors of a corporation.
All permits shall specify:
(a) Requirements concerning the proper use, maintenance, and installation, when appropriate, of monitoring equipment or methods (including biological monitoring methods when appropriate);
(b) Required monitoring including type, intervals, and frequency sufficient to yield data which are representative of the monitored activity including, when appropriate, continuous monitoring;
(c) Applicable reporting requirements based upon the impact of the regulated activity and as specified in § 122.44. Reporting shall be no less frequent than specified in the above regulation.
The following is a list of Federal laws that may apply to the issuance of permits under these rules. When any of these laws is applicable, its procedures must be followed. When the applicable law requires consideration or adoption of particular permit conditions or requires the denial of a permit, those requirements also must be followed.
(a) The
(b) The
(c) The
(d) The
(e) The
(f)
(g) The National Environmental Policy Act, 42 U.S.C. 4321
(a) When part of a discharger's process wastewater is not being discharged into waters of the United States or contiguous zone because it is disposed into a well, into a POTW, or by land application thereby reducing the flow or level of pollutants being discharged into waters of the United States, applicable effluent standards and limitations for the discharge in an NPDES permit shall be adjusted to reflect the reduced raw waste resulting from such disposal. Effluent limitations and standards in the permit shall be calculated by one of the following methods:
(1) If none of the waste from a particular process is discharged into waters of the United States, and effluent limitations guidelines provide separate allocation for wastes from that process, all allocations for the process shall be eliminated from calculation of permit effluent limitations or standards.
(2) In all cases other than those described in paragraph (a)(1) of this section, effluent limitations shall be adjusted by multiplying the effluent limitation derived by applying effluent limitation guidelines to the total waste stream by the amount of wastewater flow to be treated and discharged into waters of the United States, and dividing the result by the total wastewater flow. Effluent limitations and standards so calculated may be further adjusted under part 125, subpart D to make them more or less stringent if discharges to wells, publicly owned treatment works, or by land application change the character or treatability of the pollutants being discharged to receiving waters. This method may be algebraically expressed as:
(b) Paragraph (a) of this section does not apply to the extent that promulgated effluent limitations guidelines:
(1) Control concentrations of pollutants discharged but not mass; or
(2) Specify a different specific technique for adjusting effluent limitations to account for well injection, land application, or disposal into POTWs.
(c) Paragraph (a) of this section does not alter a discharger's obligation to meet any more stringent requirements established under §§ 122.41, 122.42, 122.43, and 122.44.
(a)
(b)
(1) The current permittee notifies the Director at least 30 days in advance of the proposed transfer date in paragraph (b)(2) of this section;
(2) The notice includes a written agreement between the existing and new permittees containing a specific date for transfer of permit responsibility, coverage, and liability between them; and
(3) The Director does not notify the existing permittee and the proposed new permittee of his or her intent to modify or revoke and reissue the permit. A modification under this subparagraph may also be a minor modification under § 122.63. If this notice is not received, the transfer is effective on the date specified in the agreement mentioned in paragraph (b)(2) of this section.
When the Director receives any information (for example, inspects the facility, receives information submitted by the permittee as required in the permit (see § 122.41), receives a request for modification or revocation and reissuance under § 124.5, or conducts a review of the permit file) he or she may determine whether or not one or more of the causes listed in paragraphs (a) and (b) of this section for modification or revocation and reissuance or both exist. If cause exists, the Director may modify or revoke and reissue the permit accordingly, subject to the limitations of § 124.5(c), and may request an updated application if necessary. When a permit is modified, only the conditions subject to modification are reopened. If a permit is revoked and reissued, the entire permit is reopened and subject to revision and the permit is reissued for a new term. See
(a)
(1)
Certain reconstruction activities may cause the new source provisions of § 122.29 to be applicable.
(2)
(3)
(i) For promulgation of amended standards or regulations, when:
(A) The permit condition requested to be modified was based on a promulgated effluent limitation guideline, EPA approved or promulgated water quality standards, or the Secondary Treatment Regulations under part 133; and
(B) EPA has revised, withdrawn, or modified that portion of the regulation or effluent limitation guideline on which the permit condition was based, or has approved a State action with regard to a water quality standard on which the permit condition was based; and
(C) A permittee requests modification in accordance with § 124.5 within ninety (90) days after
(ii) For judicial decisions, a court of competent jurisdiction has remanded and stayed EPA promulgated regulations or effluent limitation guidelines, if the remand and stay concern that portion of the regulations or guidelines on which the permit condition was based and a request is filed by the permittee in accordance with § 124.5 within ninety (90) days of judicial remand.
(iii) For changes based upon modified State certifications of NPDES permits, see § 124.55(b).
(4)
(5) When the permittee has filed a request for a variance under CWA section 301(c), 301(g), 301(h), 301(i), 301(k), or 316(a) or for “fundamentally different factors” within the time specified in § 122.21 or § 125.27(a).
(6)
(7)
(8)(i)
(ii) When a discharger is no longer eligible for net limitations, as provided in § 122.45(g)(1)(ii).
(9)
(10)
(11)
(12)
(13)
(14) For a small MS4, to include an effluent limitation requiring implementation of a minimum control measure or measures as specified in § 122.34(b) when:
(i) The permit does not include such measure(s) based upon the determination that another entity was responsible for implementation of the requirement(s); and
(ii) The other entity fails to implement measure(s) that satisfy the requirement(s).
(15) To correct technical mistakes, such as errors in calculation, or mistaken interpretations of law made in determining permit conditions.
(16) When the discharger has installed the treatment technology considered by the permit writer in setting effluent limitations imposed under section 402(a)(1) of the CWA and has properly operated and maintained the facilities but nevertheless has been unable to achieve those effluent limitations. In this case, the limitations in the modified permit may reflect the level of pollutant control actually achieved (but shall not be less stringent than required by a subsequently promulgated effluent limitations guideline).
(17) [Reserved]
(18)
(b)
(1) Cause exists for termination under § 122.64, and the Director determines that modification or revocation and reissuance is appropriate.
(2) The Director has received notification (as required in the permit, see § 122.41(l)(3)) of a proposed transfer of the permit. A permit also may be modified to reflect a transfer after the effective date of an automatic transfer (§ 122.61(b)) but will not be revoked and reissued after the effective date of the transfer except upon the request of the new permittee.
Upon the consent of the permittee, the Director may modify a permit to make the corrections or allowances for changes in the permitted activity listed in this section, without following
(a) Correct typographical errors;
(b) Require more frequent monitoring or reporting by the permittee;
(c) Change an interim compliance date in a schedule of compliance, provided the new date is not more than 120 days after the date specified in the existing permit and does not interfere with attainment of the final compliance date requirement; or
(d) Allow for a change in ownership or operational control of a facility where the Director determines that no other change in the permit is necessary, provided that a written agreement containing a specific date for transfer of permit responsibility, coverage, and liability between the current and new permittees has been submitted to the Director.
(e)(1) Change the construction schedule for a discharger which is a new source. No such change shall affect a discharger's obligation to have all pollution control equipment installed and in operation prior to discharge under § 122.29.
(2) Delete a point source outfall when the discharge from that outfall is terminated and does not result in discharge of pollutants from other outfalls except in accordance with permit limits.
(f) [Reserved]
(g) Incorporate conditions of a POTW pretreatment program that has been approved in accordance with the procedures in 40 CFR 403.11 (or a modification thereto that has been approved in accordance with the procedures in 40 CFR 403.18) as enforceable conditions of the POTW's permits.
(a) The following are causes for terminating a permit during its term, or for denying a permit renewal application:
(1) Noncompliance by the permittee with any condition of the permit;
(2) The permittee's failure in the application or during the permit issuance process to disclose fully all relevant facts, or the permittee's misrepresentation of any relevant facts at any time;
(3) A determination that the permitted activity endangers human health or the environment and can only be regulated to acceptable levels by permit modification or termination; or
(4) A change in any condition that requires either a temporary or permanent reduction or elimination of any discharge or sludge use or disposal practice controlled by the permit (for example, plant closure or termination of discharge by connection to a POTW).
(b) The Director shall follow the applicable procedures in part 124 or part 22 of this chapter, as appropriate (or State procedures equivalent to part 124) in terminating any NPDES permit under this section, except that if the entire discharge is permanently terminated by elimination of the flow or by connection to a POTW (but not by land application or disposal into a well), the Director may terminate the permit by notice to the permittee. Termination by notice shall be effective 30 days after notice is sent, unless the permittee objects within that time. If the permittee objects during that period, the Director shall follow part 124 of this chapter or applicable State procedures for termination. Expedited permit termination procedures are not available to permittees that are subject to pending State and/or Federal enforcement actions including citizen suits brought under State or Federal law. If requesting expedited permit termination procedures, a permittee must certify that it is not subject to any pending State or Federal enforcement actions including citizen suits brought under State or Federal law. State-authorized NPDES programs are not required to use part 22 of this chapter procedures for NPDES permit terminations.
Any permit issued after June 30, 1981 to dischargers in the following categories shall include effluent limitations and a compliance schedule to meet the requirements of section 301(b)(2)(A), (C), (D), (E) and (F) of CWA, whether or not applicable effluent limitations guidelines have been promulgated. See §§ 122.44 and 122.46.
A hatchery, fish farm, or other facility is a concentrated aquatic animal production facility for purposes of § 122.24 if it contains, grows, or holds aquatic animals in either of the following categories:
(a) Cold water fish species or other cold water aquatic animals in ponds, raceways, or other similar structures which discharge at least 30 days per year but does not include:
(1) Facilities which produce less than 9,090 harvest weight kilograms (approximately 20,000 pounds) of aquatic animals per year; and
(2) Facilities which feed less than 2,272 kilograms (approximately 5,000 pounds) of food during the calendar month of maximum feeding.
(b) Warm water fish species or other warm water aquatic animals in ponds, raceways, or other similar structures which discharge at least 30 days per year, but does not include:
(1) Closed ponds which discharge only during periods of excess runoff; or
(2) Facilities which produce less than 45,454 harvest weight kilograms (approximately 100,000 pounds) of aquatic animals per year.
“Cold water aquatic animals” include, but are not limited to, the
“Warm water aquatic animals” include, but are not limited to, the
[Note 1: The Environmental Protection Agency has suspended the requirements of § 122.21(g)(7)(ii)(A) and Table I of Appendix D as they apply to certain industrial categories. The suspensions are as follows:
a. At 46 FR 2046, Jan. 8, 1981, the Environmental Protection Agency suspended until further notice § 122.21(g)(7)(ii)(A) as it applies to coal mines.
b. At 46 FR 22585, Apr. 20, 1981, the Environmental Protection Agency suspended until further notice § 122.21(g)(7)(ii)(A) and the corresponding portions of Item V-C of the NPDES application Form 2c as they apply to:
1. Testing and reporting for all four organic fractions in the Greige Mills Subcategory of the Textile Mills industry (Subpart C—Low water use processing of 40 CFR part 410), and testing and reporting for the pesticide fraction in all other subcategories of this industrial category.
2. Testing and reporting for the volatile, base/neutral and pesticide fractions in the Base and Precious Metals Subcategory of the Ore Mining and Dressing industry (subpart B of 40 CFR part 440), and testing and reporting for all four fractions in all other subcategories of this industrial category.
3. Testing and reporting for all four GC/MS fractions in the Porcelain Enameling industry.
c. At 46 FR 35090, July 1, 1981, the Environmental Protection Agency suspended until further notice § 122.21(g)(7)(ii)(A) and the corresponding portions of Item V-C of the NPDES application Form 2c as they apply to:
1. Testing and reporting for the pesticide fraction in the Tall Oil Rosin Subcategory (subpart D) and Rosin-Based Derivatives Subcategory (subpart F) of the Gum and Wood Chemicals industry (40 CFR part 454), and testing and reporting for the pesticide and base/netural fractions in all other subcategories of this industrial category.
2. Testing and reporting for the pesticide fraction in the Leather Tanning and Finishing, Paint and Ink Formulation, and Photographic Supplies industrial categories.
3. Testing and reporting for the acid, base/neutral and pesticide fractions in the Petroleum Refining industrial category.
4. Testing and reporting for the pesticide fraction in the Papergrade Sulfite subcategories (subparts J and U) of the Pulp and Paper industry (40 CFR part 430); testing and reporting for the base/neutral and pesticide fractions in the following subcategories: Deink (subpart Q), Dissolving Kraft (subpart F), and Paperboard from Waste Paper (subpart E); testing and reporting for the volatile, base/neutral and pesticide fractions in the following subcategories: BCT Bleached Kraft (subpart H), Semi-Chemical (subparts B and C), and Nonintegrated-Fine Papers (subpart R); and testing and reporting for the acid, base/neutral, and pesticide fractions in the following subcategories: Fine Bleached Kraft (subpart I), Dissolving Sulfite Pulp (subpart K), Groundwood-Fine Papers (subpart O), Market Bleached Kraft (subpart G), Tissue from Wastepaper (subpart T), and Nonintegrated-Tissue Papers (subpart S).
5. Testing and reporting for the base/neutral fraction in the Once-Through Cooling Water, Fly Ash and Bottom Ash Transport Water process wastestreams of the Steam Electric Power Plant industrial category.
* Editorial Note: The words “This revision” refer to the document published at 48 FR 14153, Apr. 1, 1983.
For the duration of the suspensions, therefore, Table I effectively reads:
Not Shown: Alaska (Zone 7); Hawaii (Zone 7); Northern Mariana Islands (Zone 7); Guam (Zone 7); American Samoa (Zone 7); Trust Territory of the Pacific Islands (Zone 7); Puerto Rico (Zone 3) Virgin Islands (Zone 3).
Clean Water Act, 33 U.S.C. 1251
(a) This part specifies the procedures EPA will follow in approving, revising, and withdrawing State programs and the requirements State programs must meet to be approved by the Administrator under sections 318, 402, and 405(a) (National Pollutant Discharge Elimination System—NPDES) of the CWA. This part also specifies the procedures EPA will follow in approving, revising, and withdrawing State programs under section 405(f) (sludge management programs) of the CWA. The requirements that a State sewage sludge management program must meet for approval by the Administrator under section 405(f) are set out at 40 CFR part 501.
(b) These regulations are promulgated under the authority of sections 304(i), 101(e), 405, and 518(e) of the CWA, and implement the requirements of those sections.
(c) The Administrator will approve State programs which conform to the applicable requirements of this part. A State NPDES program will not be approved by the Administrator under section 402 of CWA unless it has authority to control the discharges specified in sections 318 and 405(a) of CWA. Permit programs under sections 318 and 405(a) will not be approved independent of a section 402 program.
(d)(1) Upon approval of a State program, the Administrator shall suspend the issuance of Federal permits for those activities subject to the approved State program. After program approval EPA shall retain jurisdiction over any permits (including general permits) which it has issued unless arrangements have been made with the State in the Memorandum of Agreement for the State to assume responsibility for these permits. Retention of jurisdiction shall include the processing of any permit appeals, modification requests, or variance requests; the conduct of inspections, and the receipt and review of self-monitoring reports. If any permit appeal, modification request or variance request is not finally resolved when the federally issued permit expires, EPA may, with the consent of the State, retain jurisdiction until the matter is resolved.
(2) The procedures outlined in the preceding paragraph (d)(1) of this section for suspension of permitting authority and transfer of existing permits will also apply when EPA approves an Indian Tribe's application to operate a State program and a State was the authorized permitting authority under § 123.23(b) for activities within the scope of the newly approved program. The authorized State will retain jurisdiction over its existing permits as described in paragraph (d)(1) of this section absent a different arrangement stated in the Memorandum of Agreement executed between EPA and the Tribe.
(e) Upon submission of a complete program, EPA will conduct a public hearing, if interest is shown, and determine whether to approve or disapprove the program taking into consideration the requirements of this part, the CWA and any comments received.
(f) Any State program approved by the Administrator shall at all times be conducted in accordance with the requirements of this part.
(g)(1) Except as may be authorized pursuant to paragraph (g)(2) of this section or excluded by § 122.3, the State program must prohibit all point source discharges of pollutants, all discharges into aquaculture projects, and all disposal of sewage sludge which results in any pollutant from such sludge entering into any waters of the United States within the State's jurisdiction except as authorized by a permit in effect under the State program or under section 402 of CWA. NPDES authority may be shared by two or more State agencies but each agency must have Statewide jurisdiction over a class of activities or discharges. When more than one agency is responsible for issuing permits, each agency must make a submission meeting the requirements of § 123.21 before EPA will begin formal review.
(2) A State may seek approval of a partial or phased program in accordance with section 402(n) of the CWA.
(h) In many cases, States (other than Indian Tribes) will lack authority to regulate activities on Indian lands. This lack of authority does not impair that State's ability to obtain full program approval in accordance with this part, i.e., inability of a State to regulate activities on Indian lands does not constitute a partial program. EPA will administer the program on Indian lands if a State (or Indian Tribe) does not seek or have authority to regulate activities on Indian lands.
States are advised to contact the United States Department of the Interior, Bureau of Indian Affairs, concerning authority over Indian lands.
(i) Nothing in this part precludes a State from:
(1) Adopting or enforcing requirements which are more stringent or more extensive than those required under this part;
(2) Operating a program with a greater scope of coverage than that required under this part. If an approved State program has greater scope of coverage than required by Federal law the additional coverage is not part of the Federally approved program.
For example, if a State requires permits for discharges into publicly owned treatment works, these permits are not NPDES permits.
The definitions in part 122 apply to all subparts of this part.
Issuance of State permits under this part may be coordinated with issuance of RCRA, UIC, NPDES, and 404 permits whether they are controlled by the State, EPA, or the Corps of Engineers. See § 124.4.
(a) Any State that seeks to administer a program under this part shall submit to the Administrator at least three copies of a program submission. The submission shall contain the following:
(1) A letter from the Governor of the State (or in the case of an Indian Tribe in accordance with § 123.33(b), the Tribal authority exercising powers substantially similar to those of a State Governor) requesting program approval;
(2) A complete program description, as required by § 123.22, describing how the State intends to carry out its responsibilities under this part;
(3) An Attorney General's statement as required by § 123.23;
(4) A Memorandum of Agreement with the Regional Administrator as required by § 123.24;
(5) Copies of all applicable State statutes and regulations, including those governing State administrative procedures;
(b)(1) Within 30 days of receipt by EPA of a State program submission, EPA will notify the State whether its submission is complete. If EPA finds that a State's submission is complete, the statutory review period (i.e., the period of time allotted for formal EPA review of a proposed State program
(2) In the case of an Indian Tribe eligible under § 123.33(b), EPA shall take into consideration the contents of the Tribe's request submitted under § 123.32, in determining if the program submission required by § 123.21(a) is complete.
(c) If the State's submission is materially changed during the statutory review period, the statutory review period shall begin again upon receipt of the revised submission.
(d) The State and EPA may extend the statutory review period by agreement.
Any State that seeks to administer a program under this part shall submit a description of the program it proposes to administer in lieu of the Federal program under State law or under an interstate compact. The program description shall include:
(a) A description in narrative form of the scope, structure, coverage and processes of the State program.
(b) A description (including organization charts) of the organization and structure of the State agency or agencies which will have responsibility for administering the program, including the information listed below. If more than one agency is responsible for administration of a program, each agency must have statewide jurisdiction over a class of activities. The responsibilities of each agency must be delineated, their procedures for coordination set forth, and an agency may be designated as a “lead agency” to facilitate communications between EPA and the State agencies having program responsibility. If the State proposes to administer a program of greater scope of coverage than is required by Federal law, the information provided under this paragraph shall indicate the resources dedicated to administering the Federally required portion of the program.
(1) A description of the State agency staff who will carry out the State program, including the number, occupations, and general duties of the employees. The State need not submit complete job descriptions for every employee carrying out the State program.
(2) An itemization of the estimated costs of establishing and administering the program for the first two years after approval, including cost of the personnel listed in paragraph (b)(1) of this section, cost of administrative support, and cost of technical support.
(3) An itemization of the sources and amounts of funding, including an estimate of Federal grant money, available to the State Director for the first two years after approval to meet the costs listed in paragraph (b)(2) of this section, identifying any restrictions or limitations upon this funding.
(c) A description of applicable State procedures, including permitting procedures and any State administrative or judicial review procedures;
(d) Copies of the permit form(s), application form(s), and reporting form(s) the State intends to employ in its program. Forms used by States need not be identical to the forms used by EPA but should require the same basic information, except that State NPDES programs are required to use standard Discharge Monitoring Reports (DMR). The State need not provide copies of uniform national forms it intends to use but should note its intention to use such forms.
States are encouraged to use uniform national forms established by the Administrator. If uniform national forms are used, they may be modified to include the State Agency's name, address, logo, and other similar information, as appropriate, in place of EPA's.
(e) A complete description of the State's compliance tracking and enforcement program.
(f) In the case of Indian Tribes eligible under § 123.33(b), if a State has been authorized by EPA to issue permits on the Federal Indian reservation in accordance with § 123.23(b), a description of how responsibility for pending permit applications, existing permits, and supporting files will be transferred from the State to the eligible Indian
(a) Any State that seeks to administer a program under this part shall submit a statement from the State Attorney General (or the attorney for those State or interstate agencies which have independent legal counsel) that the laws of the State, or an interstate compact, provide adequate authority to carry out the program described under § 123.22 and to meet the requirements of this part. This statement shall include citations to the specific statutes, administrative regulations, and, where appropriate, judicial decisions which demonstrate adequate authority. State statutes and regulations cited by the State Attorney General or independent legal counsel shall be in the form of lawfully adopted State statutes and regulations at the time the statement is signed and shall be fully effective by the time the program is approved. To qualify as “independent legal counsel” the attorney signing the statement required by this section must have full authority to independently represent the State agency in court on all matters pertaining to the State program.
EPA will supply States with an Attorney General's statement format on request.
(b) If a State (which is not an Indian Tribe) seeks authority over activities on Indian lands, the statement shall contain an appropriate analysis of the State's authority.
(c) The Attorney General's statement shall certify that the State has adequate legal authority to issue and enforce general permits if the State seeks to implement the general permit program under § 122.28.
(a) Any State that seeks to administer a program under this part shall submit a Memorandum of Agreement. The Memorandum of Agreement shall be executed by the State Director and the Regional Administrator and shall become effective when approved by the Administrator. In addition to meeting the requirements of paragraph (b) of this section, the Memorandum of Agreement may include other terms, conditions, or agreements consistent with this part and relevant to the administration and enforcement of the State's regulatory program. The Administrator shall not approve any Memorandum of Agreement which contains provisions which restrict EPA's statutory oversight responsibility.
(b) The Memorandum of Agreement shall include the following:
(1)(i) Provisions for the prompt transfer from EPA to the State of pending permit applications and any other information relevant to program operation not already in the possession of the State Director (e.g., support files for permit issuance, compliance reports, etc.). If existing permits are transferred from EPA to the State for administration, the Memorandum of Agreement shall contain provisions specifying a procedure for transferring the administration of these permits. If a State lacks the authority to directly administer permits issued by the Federal government, a procedure may be established to transfer responsibility for these permits.
For example, EPA and the State and the permittee could agree that the State would issue a permit(s) identical to the outstanding Federal permit which would simultaneously be terminated.
(ii) Where a State has been authorized by EPA to issue permits in accordance with § 123.23(b) on the Federal Indian reservation of the Indian Tribe seeking program approval, provisions describing how the transfer of pending permit applications, permits, and any other information relevant to the program operation not already in the possession of the Indian Tribe (support files for permit issuance, compliance reports, etc.) will be accomplished.
(2) Provisions specifying classes and categories of permit applications, draft permits, and proposed permits that the State will send to the Regional Administrator for review, comment and, where applicable, objection.
(3) Provisions specifying the frequency and content of reports, documents and other information which the State is required to submit to EPA. The State shall allow EPA to routinely review State records, reports, and files relevant to the administration and enforcement of the approved program. State reports may be combined with grant reports where appropriate. These procedures shall implement the requirements of § 123.43.
(4) Provisions on the State's compliance monitoring and enforcement program, including:
(i) Provisions for coordination of compliance monitoring activities by the State and by EPA. These may specify the basis on which the Regional Administrator will select facilities or activities within the State for EPA inspection. The Regional Administrator will normally notify the State at least 7 days before any such inspection; and
(ii) Procedures to assure coordination of enforcement activities.
(5) When appropriate, provisions for joint processing of permits by the State and EPA for facilities or activities which require permits from both EPA and the State under different programs. (See § 124.4.)
To promote efficiency and to avoid duplication and inconsistency, States are encouraged to enter into joint processing agreements with EPA for permit issuance. Likewise, States are encouraged (but not required) to consider steps to coordinate or consolidate their own permit programs and activities.
(6) Provisions for modification of the Memorandum of Agreement in accordance with this part.
(c) The Memorandum of Agreement, the annual program grant and the State/EPA Agreement should be consistent. If the State/EPA Agreement indicates that a change is needed in the Memorandum of Agreement, the Memorandum of Agreement may be amended through the procedures set forth in this part. The State/EPA Agreement may not override the Memorandum of Agreement.
Detailed program priorities and specific arrangements for EPA support of the State program will change and are therefore more appropriately negotiated in the context of annual agreements rather than in the MOA. However, it may still be appropriate to specify in the MOA the basis for such detailed agreements, e.g., a provision in the MOA specifying that EPA will select facilities in the State for inspection annually as part of the State/EPA agreement.
(d) The Memorandum of Agreement shall also specify the extent to which EPA will waive its right to review, object to, or comment upon State-issued permits under section 402(d)(3), (e) or (f) of CWA. While the Regional Administrator and the State may agree to waive EPA review of certain “classes or categories” of permits, no waiver of review may be granted for the following classes or categories:
(1) Discharges into the territorial sea;
(2) Discharges which may affect the waters of a State other than the one in which the discharge originates;
(3) Discharges proposed to be regulated by general permits (see § 122.28);
(4) Discharges from publicly owned treatment works with a daily average discharge exceeding 1 million gallons per day;
(5) Discharges of uncontaminated cooling water with a daily average discharge exceeding 500 million gallons per day;
(6) Discharges from any major discharger or from any discharger within any of the 21 industrial categories listed in appendix A to part 122;
(7) Discharges from other sources with a daily average discharge exceeding 0.5 (one-half) million gallons per day, except that EPA review of permits for discharges of non-process wastewater may be waived regardless of flow.
(e) Whenever a waiver is granted under paragraph (d) of this section, the Memorandum of Agreement shall contain:
(1) A statement that the Regional Administrator retains the right to terminate the waiver as to future permit actions, in whole or in part, at any time by sending the State Director written notice of termination; and
(2) A statement that the State shall supply EPA with copies of final permits.
(a) All State Programs under this part must have legal authority to implement each of the following provisions and must be administered in conformance with each, except that States are not precluded from omitting or modifying any provisions to impose more stringent requirements:
(1) § 122.4—(Prohibitions):
(2) § 122.5(a) and (b)—(Effect of permit);
(3) § 122.7(b) and (c)—(Confidential information);
(4) § 122.21 (a)-(b), (c)(2), (e)-(k), (m)-(p), (q), and (r)—(Application for a permit);
(5) § 122.22—(Signatories);
(6) § 122.23—(Concentrated animal feeding operations);
(7) § 122.24—(Concentrated aquatic animal production facilities);
(8) § 122.25—(Aquaculture projects);
(9) § 122.26—(Storm water discharges);
(10) § 122.27—(Silviculture);
(11) § 122.28—(General permits),
(12) Section 122.41 (a)(1) and (b) through (n)—(Applicable permit conditions) (Indian Tribes can satisfy enforcement authority requirements under § 123.34);
(13) § 122.42—(Conditions applicable to specified categories of permits);
(14) § 122.43—(Establishing permit conditions);
(15) § 122.44—(Establishing NPDES permit conditions);
(16) § 122.45—(Calculating permit conditions);
(17) § 122.46—(Duration);
(18) § 122.47(a)—(Schedules of compliance);
(19) § 122.48—(Monitoring requirements);
(20) § 122.50—(Disposal into wells);
(21) § 122.61—(Permit transfer);
(22) § 122.62—(Permit modification);
(23) § 122.64—(Permit termination);
(24) § 124.3(a)—(Application for a permit);
(25) § 124.5 (a), (c), (d), and (f)—(Modification of permits);
(26) § 124.6 (a), (c), (d), and (e)—(Draft permit);
(27) § 124.8—(Fact sheets);
(28) § 124.10 (a)(1)(ii), (a)(1)(iii), (a)(1)(v), (b), (c), (d), and (e)—(Public notice);
(29) § 124.11—(Public comments and requests for hearings);
(30) § 124.12(a)—(Public hearings); and
(31) § 124.17 (a) and (c)—(Response to comments);
(32) § 124.56—(Fact sheets);
(33) § 124.57(a)—(Public notice);
(34) § 124.59—(Comments from government agencies);
(35) § 124.62—(Decision on variances);
(36) Subparts A, B, D, H, I, J, and N of part 125 of this chapter;
(37) 40 CFR parts 129, 133, and subchapter N;
(38) For a Great Lakes State or Tribe (as defined in 40 CFR 132.2), 40 CFR part 132 (NPDES permitting implementation procedures only);
(39) § 122.30 (What are the objectives of the storm water regulations for small MS4s?);
(40) § 122.31 (For Indian Tribes only) (As a Tribe, what is my role under the NPDES storm water program?);
(41) § 122.32 (As an operator of a small MS4, am I regulated under the NPDES storm water program?);
(42) § 122.33 (If I am an operator of a regulated small MS4, how do I apply for an NPDES permit? When do I have to apply?);
(43) § 122.34 (As an operator of a regulated small MS4, what will my NPDES MS4 storm water permit require?);
(44) § 122.35 (As an operator of a regulated small MS4, may I share the responsibility to implement the minimum control measures with other entities?);
(45) § 122.36 (As an operator of a regulated small MS4, what happens if I don't comply with the application or permit requirements in §§ 122.33 through 122.35?); and
(46) For states that wish to receive electronic documents, 40 CFR Part 3—(Electronic reporting).
Except for paragraph (a)(46) of this section, states need not implement provisions identical to the above listed provisions.
State programs may, if they have adequate legal authority, implement any of the provisions of parts 122 and 124. See, for example, § 122.5(d) (continuation of permits) and § 124.4 (consolidation of permit processing).
For example, a State may impose more stringent requirements in an NPDES program by omitting the upset provision of § 122.41 or by requiring more prompt notice of an upset.
(b) State NPDES programs shall have an approved continuing planning process under 40 CFR 130.5 and shall assure that the approved planning process is at all times consistent with the CWA.
(c) State NPDES programs shall ensure that any board or body which approves all or portions of permits shall not include as a member any person who receives, or has during the previous 2 years received, a significant portion of income directly or indirectly from permit holders or applicants for a permit.
(1) For the purposes of this paragraph:
(i)
(ii)
(iii)
(iv)
(2) For the purposes of paragraph (c) of this section, income is not received “directly or indirectly from permit holders or applicants for a permit” when it is derived from mutual fund payments, or from other diversified investments for which the recipient does not know the identity of the primary sources of income.
(a) State programs shall have procedures for receipt, evaluation, retention and investigation for possible enforcement of all notices and reports required of permittees and other regulated persons (and for investigation for possible enforcement of failure to submit these notices and reports).
(b) State programs shall have inspection and surveillance procedures to determine, independent of information supplied by regulated persons, compliance or noncompliance with applicable program requirements. The State shall maintain:
(1) A program which is capable of making comprehensive surveys of all facilities and activities subject to the State Director's authority to identify persons subject to regulation who have failed to comply with permit application or other program requirements. Any compilation, index or inventory of such facilities and activities shall be made available to the Regional Administrator upon request;
(2) A program for periodic inspections of the facilities and activities subject to regulation. These inspections shall be conducted in a manner designed to:
(i) Determine compliance or noncompliance with issued permit conditions and other program requirements;
(ii) Verify the accuracy of information submitted by permittees and other regulated persons in reporting forms and other forms supplying monitoring data; and
(iii) Verify the adequacy of sampling, monitoring, and other methods used by
(3) A program for investigating information obtained regarding violations of applicable program and permit requirements; and
(4) Procedures for receiving and ensuring proper consideration of information submitted by the Public about violations. Public effort in reporting violations shall be encouraged, and the State Director shall make available information on reporting procedures.
(c) The State Director and State officers engaged in compliance evaluation shall have authority to enter any site or premises subject to regulation or in which records relevant to program operation are kept in order to copy any records, inspect, monitor or otherwise investigate compliance with the State program including compliance with permit conditions and other program requirements. States whose law requires a search warrant before entry conform with this requirement.
(d) Investigatory inspections shall be conducted, samples shall be taken and other information shall be gathered in a manner (e.g., using proper “chain of custody” procedures) that will produce evidence admissible in an enforcement proceeding or in court.
(e) State NPDES compliance evaluation programs shall have procedures and ability for:
(1) Maintaining a comprehensive inventory of all sources covered by NPDES permits and a schedule of reports required to be submitted by permittees to the State agency;
(2) Initial screening (i.e., pre-enforcement evaluation) of all permit or grant-related compliance information to identify violations and to establish priorities for further substantive technical evaluation;
(3) When warranted, conducting a substantive technical evaluation following the initial screening of all permit or grant-related compliance information to determine the appropriate agency response;
(4) Maintaining a management information system which supports the compliance evaluation activities of this part; and
(5) Inspecting the facilities of all major dischargers at least annually.
(a) Any State agency administering a program shall have available the following remedies for violations of State program requirements:
(1) To restrain immediately and effectively any person by order or by suit in State court from engaging in any unauthorized activity which is endangering or causing damage to public health or the environment;
This paragraph (a)(1) requires that States have a mechanism (e.g., an administrative cease and desist order or the ability to seek a temporary restraining order) to stop any unauthorized activity endangering public health or the environment.
(2) To sue in courts of competent jurisdiction to enjoin any threatened or continuing violation of any program requirement, including permit conditions, without the necessity of a prior revocation of the permit;
(3) To assess or sue to recover in court civil penalties and to seek criminal remedies, including fines, as follows:
(i) Civil penalties shall be recoverable for the violation of any NPDES permit condition; any NPDES filing requirement; any duty to allow or carry out inspection, entry or monitoring activities; or, any regulation or orders issued by the State Director. These penalties shall be assessable in at least the amount of $5,000 a day for each violation.
(ii) Criminal fines shall be recoverable against any person who willfully or negligently violates any applicable standards or limitations; any NPDES permit condition; or any NPDES filing requirement. These fines shall be assessable in at least the amount of $10,000 a day for each violation.
States which provide the criminal remedies based on “criminal negligence,” “gross negligence” or strict liability satisfy the requirement of paragraph (a)(3)(ii) of this section.
(iii) Criminal fines shall be recoverable against any person who knowingly
In many States the State Director will be represented in State courts by the State Attorney General or other appropriate legal officer. Although the State Director need not appear in court actions he or she should have power to request that any of the above actions be brought.
(b)(1) The maximum civil penalty or criminal fine (as provided in paragraph (a)(3) of this section) shall be assessable for each instance of violation and, if the violation is continuous, shall be assessable up to the maximum amount for each day of violation.
(2) The burden of proof and degree of knowledge or intent required under State law for establishing violations under paragraph (a)(3) of this section, shall be no greater than the burden of proof or degree of knowledge or intent EPA must provide when it brings an action under the appropriate Act;
For example, this requirement is not met if State law includes mental state as an element of proof for civil violations.
(c) A civil penalty assessed, sought, or agreed upon by the State Director under paragraph (a)(3) of this section shall be appropriate to the violation.
To the extent that State judgments or settlements provide penalties in amounts which EPA believes to be substantially inadequate in comparison to the amounts which EPA would require under similar facts, EPA, when authorized by the applicable statute, may commence separate actions for penalties.
Procedures for assessment by the State of the cost of investigations, inspections, or monitoring surveys which lead to the establishment of violations;
In addition to the requirements of this paragraph, the State may have other enforcement remedies. The following enforcement options, while not mandatory, are highly recommended:
Procedures which enable the State to assess or to sue any persons responsible for unauthorized activities for any expenses incurred by the State in removing, correcting, or terminating any adverse effects upon human health and the environment resulting from the unauthorized activity, whether or not accidental;
Procedures which enable the State to sue for compensation for any loss or destruction of wildlife, fish or aquatic life, or their habitat, and for any other damages caused by unauthorized activity, either to the State or to any residents of the State who are directly aggrieved by the unauthorized activity, or both; and
Procedures for the administrative assessment of penalties by the Director.
(d) Any State administering a program shall provide for public participation in the State enforcement process by providing either:
(1) Authority which allows intervention as of right in any civil or administrative action to obtain remedies specified in paragraphs (a)(1), (2) or (3) of this section by any citizen having an interest which is or may be adversely affected; or
(2) Assurance that the State agency or enforcement authority will:
(i) Investigate and provide written responses to all citizen complaints submitted pursuant to the procedures specified in § 123.26(b)(4);
(ii) Not oppose intervention by any citizen when permissive intervention may be authorized by statute, rule, or regulation; and
(iii) Publish notice of and provide at least 30 days for public comment on any proposed settlement of a State enforcement action.
(e) Indian Tribes that cannot satisfy the criminal enforcement authority requirements of this section may still receive program approval if they meet the requirement for enforcement authority established under § 123.34.
State law must provide authority to issue permits to control the disposal of pollutants into wells. Such authority shall enable the State to protect the
States which are authorized to administer the NPDES permit program under section 402 of CWA are encouraged to rely on existing statutory authority, to the extent possible, in developing a State UIC program under section 1422 of SDWA. Section 402(b)(1)(D) of CWA requires that NPDES States have the authority “to issue permits which * * * control the disposal of pollutants into wells.” In many instances, therefore, NPDES States will have existing statutory authority to regulate well disposal which satisfies the requirements of the UIC program. Note, however, that CWA excludes certain types of well injections from the definition of “pollutant.” If the State's statutory authority contains a similar exclusion it may need to be modified to qualify for UIC program approval.
State permit programs shall provide that no permit shall be issued when the Regional Administrator has objected in writing under § 123.44.
All States that administer or seek to administer a program under this part shall provide an opportunity for judicial review in State Court of the final approval or denial of permits by the State that is sufficient to provide for, encourage, and assist public participation in the permitting process. A State will meet this standard if State law allows an opportunity for judicial review that is the same as that available to obtain judicial review in federal court of a federally-issued NPDES permit (see § 509 of the Clean Water Act). A State will not meet this standard if it narrowly restricts the class of persons who may challenge the approval or denial of permits (for example, if only the permittee can obtain judicial review, if persons must demonstrate injury to a pecuniary interest in order to obtain judicial review, or if persons must have a property interest in close proximity to a discharge or surface waters in order to obtain judicial review.) This requirement does not apply to Indian Tribes.
(a) Consistent with section 518(e) of the CWA, 33 U.S.C. 1377(e), the Regional Administrator will treat an Indian Tribe as eligible to apply for NPDES program authority if it meets the following criteria:
(1) The Indian Tribe is recognized by the Secretary of the Interior.
(2) The Indian Tribe has a governing body carrying out substantial governmental duties and powers.
(3) The functions to be exercised by the Indian Tribe pertain to the management and protection of water resources which are held by an Indian Tribe, held by the United States in trust for the Indians, held by a member of an Indian Tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of an Indian reservation.
(4) The Indian Tribe is reasonably expected to be capable, in the Regional Administrator's judgment, of carrying out the functions to be exercised, in a manner consistent with the terms and purposes of the Act and applicable regulations, of an effective NPDES permit program.
(b) An Indian Tribe which the Regional Administrator determines meets the criteria described in paragraph (a) of this section must also satisfy the State program requirements described in this part for assumption of the State program.
An Indian Tribe may apply to the Regional Administrator for a determination that it qualifies pursuant to section 518 of the Act for purposes of seeking NPDES permit program approval. The application shall be concise and describe how the Indian Tribe will meet each of the requirements of § 123.31. The application shall include the following information:
(a) A statement that the Tribe is recognized by the Secretary of the Interior;
(b) A descriptive statement demonstrating that the Tribal governing body is currently carrying out substantial governmental duties and powers over a defined area. This statement should:
(1) Describe the form of the Tribal government;
(2) Describe the types of governmental functions currently performed by the Tribal governing body, such as, but not limited to, the exercise of police powers affecting (or relating to) the health, safety, and welfare of the affected population; taxation; and the exercise of the power of eminent domain; and
(3) Identify the source of the Tribal government's authority to carry out the governmental functions currently being performed.
(c) A map or legal description of the area over which the Indian Tribe asserts authority under section 518(e)(2) of the Act; a statement by the Tribal Attorney General (or equivalent official authorized to represent the Tribe in all legal matters in court pertaining to the program for which it seeks approval) which describes the basis for the Tribe's assertion (including the nature or subject matter of the asserted regulatory authority); copies of those documents such as Tribal constitutions, by-laws, charters, executive orders, codes, ordinances, and/or resolutions which support the Tribe believes are relevant to its assertion under section 518(e)(2) of the Act; and a description of the location of the surface waters for which the Tribe proposes to establish an NPDES permit program.
(d) A narrative statement describing the capability of the Indian Tribe to administer an effective, environmentally sound NPDES permit program. The statement should include:
(1) A description of the Indian Tribe's previous management experience which may include the administration of programs and service authorized by the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450
(2) A list of existing environmental or public health programs administered by the Tribal governing body, and a copy of related Tribal laws, regulations, and policies;
(3) A description of the entity (or entities) which exercise the executive, legislative, and judicial functions of the Tribal government;
(4) A description of the existing, or proposed, agency of the Indian Tribe which will assume primary responsibility for establishing and administering an NPDES permit program (including a description of the relationship between the existing or proposed agency and its regulated entities);
(5) A description of the technical and administrative abilities of the staff to administer and manage an effective, environmentally sound NPDES permit program or a plan which proposes how the Tribe will acquire additional administrative and technical expertise. The plan must address how the Tribe will obtain the funds to acquire the administrative and technical expertise.
(e) The Regional Administrator may, at his or her discretion, request further documentation necessary to support a Tribe's eligibility.
(f) If the Administrator or his or her delegatee has previously determined that a Tribe has met the prerequisites that make it eligible to assume a role similar to that of a state as provided by statute under the Safe Drinking Water Act, the Clean Water Act, or the Clean Air Act, then that Tribe need provide only that information unique to the NPDES program which is requested by the Regional Administrator.
(a) The Regional Administrator shall process an application of an Indian Tribe submitted pursuant to § 123.32 in a timely manner. He shall promptly notify the Indian Tribe of receipt of the application.
(b) The Regional Administrator shall follow the procedures described in 40 CFR part 123, subpart D in processing a
To the extent that an Indian Tribe is precluded from asserting criminal enforcement authority as required under § 123.27, the Federal Government will exercise primary criminal enforcement responsibility. The Tribe, with the EPA Region, shall develop a procedure by which the Tribal agency will refer potential criminal violations to the Regional Administrator, as agreed to by the parties, in an appropriate and timely manner. This procedure shall encompass all circumstances in which the Tribe is incapable of exercising the enforcement requirements of § 123.27. This agreement shall be incorporated into a joint or separate Memorandum of Agreement with the EPA Region, as appropriate.
(a) You must comply with the requirements for all NPDES permitting authorities under Parts 122, 123, 124, and 125 of this chapter. (This section is meant only to supplement those requirements and discuss specific issues related to the small MS4 storm water program.)
(b) You must develop a process, as well as criteria, to designate small MS4s other than those described in § 122.32(a)(1) of this chapter, as regulated small MS4s to be covered under the NPDES storm water discharge control program. This process must include the authority to designate a small MS4 waived under paragraph (d) of this section if circumstances change. EPA may make designations under this section if a State or Tribe fails to comply with the requirements listed in this paragraph. In making designations of small MS4s, you must:
(1)(i) Develop criteria to evaluate whether a storm water discharge results in or has the potential to result in exceedances of water quality standards, including impairment of designated uses, or other significant water quality impacts, including habitat and biological impacts.
(ii) Guidance: For determining other significant water quality impacts, EPA recommends a balanced consideration of the following designation criteria on a watershed or other local basis: discharge to sensitive waters, high growth or growth potential, high population density, contiguity to an urbanized area, significant contributor of pollutants to waters of the United States, and ineffective protection of water quality by other programs;
(2) Apply such criteria, at a minimum, to any small MS4 located outside of an urbanized area serving a jurisdiction with a population density of at least 1,000 people per square mile and a population of at least 10,000;
(3) Designate any small MS4 that meets your criteria by December 9, 2002. You may wait until December 8, 2004 to apply the designation criteria on a watershed basis if you have developed a comprehensive watershed plan. You may apply these criteria to make additional designations at any time, as appropriate; and
(4) Designate any small MS4 that contributes substantially to the pollutant loadings of a physically interconnected municipal separate storm sewer that is regulated by the NPDES storm water program.
(c) You must make a final determination within 180 days from receipt of a petition under § 122.26(f) of this chapter (or analogous State or Tribal law). If you do not do so within that time period, EPA may make a determination on the petition.
(d) You must issue permits consistent with §§ 122.32 through 122.35 of this chapter to all regulated small MS4s. You may waive or phase in the requirements otherwise applicable to regulated small MS4s, as defined in § 122.32(a)(1) of this chapter, under the following circumstances:
(1) You may waive permit coverage for each small MS4s in jurisdictions with a population under 1,000 within the urbanized area where all of the following criteria have been met:
(i) Its discharges are not contributing substantially to the pollutant loadings
(ii) If the small MS4 discharges any pollutant(s) that have been identified as a cause of impairment of any water body to which it discharges, storm water controls are not needed based on wasteload allocations that are part of an EPA approved or established “total maximum daily load” (TMDL) that address the pollutant(s) of concern.
(2) You may waive permit coverage for each small MS4 in jurisdictions with a population under 10,000 where all of the following criteria have been met:
(i) You have evaluated all waters of the U.S., including small streams, tributaries, lakes, and ponds, that receive a discharge from the MS4 eligible for such a waiver.
(ii) For all such waters, you have determined that storm water controls are not needed based on wasteload allocations that are part of an EPA approved or established TMDL that addresses the pollutant(s) of concern or, if a TMDL has not been developed or approved, an equivalent analysis that determines sources and allocations for the pollutant(s) of concern.
(iii) For the purpose of paragraph (d)(2)(ii) of this section, the pollutant(s) of concern include biochemical oxygen demand (BOD), sediment or a parameter that addresses sediment (such as total suspended solids, turbidity or siltation), pathogens, oil and grease, and any pollutant that has been identified as a cause of impairment of any water body that will receive a discharge from the MS4.
(iv) You have determined that current and future discharges from the MS4 do not have the potential to result in exceedances of water quality standards, including impairment of designated uses, or other significant water quality impacts, including habitat and biological impacts.
(v) Guidance: To help determine other significant water quality impacts, EPA recommends a balanced consideration of the following criteria on a watershed or other local basis: discharge to sensitive waters, high growth or growth potential, high population or commercial density, significant contributor of pollutants to waters of the United States, and ineffective protection of water quality by other programs.
(3) You may phase in permit coverage for small MS4s serving jurisdictions with a population under 10,000 on a schedule consistent with a State watershed permitting approach. Under this approach, you must develop and implement a schedule to phase in permit coverage for approximately 20 percent annually of all small MS4s that qualify for such phased-in coverage. Under this option, all regulated small MS4s are required to have coverage under an NPDES permit by no later than March 8, 2007. Your schedule for phasing in permit coverage for small MS4s must be approved by the Regional Administrator no later than December 10, 2001.
(4) If you choose to phase in permit coverage for small MS4s in jurisdictions with a population under 10,000, in accordance with paragraph (d)(3) of this section, you may also provide waivers in accordance with paragraphs (d)(1) and (d)(2) of this section pursuant to your approved schedule.
(5) If you do not have an approved schedule for phasing in permit coverage, you must make a determination whether to issue an NPDES permit or allow a waiver in accordance with paragraph (d)(1) or (d)(2) of this section, for each eligible MS4 by December 9, 2002.
(6) You must periodically review any waivers granted in accordance with paragraph (d)(2) of this section to determine whether any of the information required for granting the waiver has changed. At a minimum, you must conduct such a review once every five years. In addition, you must consider any petition to review any waiver when the petitioner provides evidence that the information required for granting the waiver has substantially changed.
(e) You must specify a time period of up to 5 years from the date of permit issuance for operators of regulated small MS4s to fully develop and implement their storm water program.
(f) You must include the requirements in §§ 122.33 through 122.35 of this chapter in any permit issued for regulated small MS4s or develop permit limits based on a permit application
(g) If you issue a general permit to authorize storm water discharges from small MS4s, you must make available a menu of BMPs to assist regulated small MS4s in the design and implementation of municipal storm water management programs to implement the minimum measures specified in § 122.34(b) of this chapter. EPA plans to develop a menu of BMPs that will apply in each State or Tribe that has not developed its own menu. Regardless of whether a menu of BMPs has been developed by EPA, EPA encourages State and Tribal permitting authorities to develop a menu of BMPs that is appropriate for local conditions. EPA also intends to provide guidance on developing BMPs and measurable goals and modify, update, and supplement such guidance based on the assessments of the NPDES MS4 storm water program and research to be conducted over the next thirteen years.
(h)(1) You must incorporate any additional measures necessary to ensure effective implementation of your State or Tribal storm water program for regulated small MS4s.
(2) Guidance: EPA recommends consideration of the following:
(i) You are encouraged to use a general permit for regulated small MS4s;
(ii) To the extent that your State or Tribe administers a dedicated funding source, you should play an active role in providing financial assistance to operators of regulated small MS4s;
(iii) You should support local programs by providing technical and programmatic assistance, conducting research projects, performing watershed monitoring, and providing adequate legal authority at the local level;
(iv) You are encouraged to coordinate and utilize the data collected under several programs including water quality management programs, TMDL programs, and water quality monitoring programs;
(v) Where appropriate, you may recognize existing responsibilities among governmental entities for the control measures in an NPDES small MS4 permit (see § 122.35(b) of this chapter); and
(vi) You are encouraged to provide a brief (e.g., two page) reporting format to facilitate compiling and analyzing data from submitted reports under § 122.34(g)(3) of this chapter. EPA intends to develop a model form for this purpose.
If the State has not already established technical standards for nutrient management that are consistent with 40 CFR 412.4(c)(2), the Director shall establish such standards by the date specified in § 123.62(e).
(a) Any information obtained or used in the administration of a State program shall be available to EPA upon request without restriction. If the information has been submitted to the State under a claim of confidentiality, the State must submit that claim to EPA when providing information under this section. Any information obtained from a State and subject to a claim of confidentiality will be treated in accordance with the regulations in 40 CFR part 2. If EPA obtains from a State information that is not claimed to be confidential, EPA may make that information available to the public without further notice.
(b) EPA shall furnish to States with approved programs the information in its files not submitted under a claim of confidentiality which the State needs to implement its approved program.
Upon approving a State permit program, EPA will send to the State agency administering the permit program any relevant information which was collected by EPA. The Memorandum of Agreement under § 123.24 (or, in the case of a sewage sludge management program, § 501.14 of this chapter) will provide for the following, in such manner as the State Director and the Regional Administrator agree:
(a) Prompt transmission to the State Director from the Regional Administrator of copies of any pending permit applications or any other relevant information collected before the approval of the State permit program and not already in the possession of the State Director. When existing permits are transferred to the State Director (e.g., for purposes of compliance monitoring, enforcement or reissuance), relevant information includes support files for permit issuance, compliance reports and records of enforcement actions.
(b) Procedures to ensure that the State Director will not issue a permit on the basis of any application received from the Regional Administrator which the Regional Administrator identifies as incomplete or otherwise deficient until the State Director receives information sufficient to correct the deficiency.
(a) Each State agency administering a permit program shall transmit to the Regional Administrator copies of permit program forms and any other relevant information to the extent and in the manner agreed to by the State Director and Regional Administrator in the Memorandum of Agreement and not inconsistent with this part. Proposed permits shall be prepared by State agencies unless agreement to the contrary has been reached under § 123.44(j). The Memorandum of Agreement shall provide for the following:
(1) Prompt transmission to the Regional Administrator of a copy of all complete permit applications received by the State Director, except those for which permit review has been waived under § 123.24(d). The State shall supply EPA with copies of permit applications for which permit review has been waived whenever requested by EPA;
(2) Prompt transmission to the Regional Administrator of notice of every action taken by the State agency related to the consideration of any permit application or general permit, including a copy of each proposed or draft permit and any conditions, requirements, or documents which are related to the proposed or draft permit or which affect the authorization of the proposed permit, except those for which permit review has been waived under § 123.24(d). The State shall supply EPA with copies of notices for which permit review has been waived whenever requested by EPA; and
(3) Transmission to the Regional Administrator of a copy of every issued permit following issuance, along with any and all conditions, requirements, or documents which are related to or affect the authorization of the permit.
(b) If the State intends to waive any of the permit application requirements of § 122.21(j) or (q) of this chapter for a specific applicant, the Director must submit a written request to the Regional Administrator no less than 210 days prior to permit expiration. This request must include the State's justification for granting the waiver.
(c) The State program shall provide for transmission by the State Director to EPA of:
(1) Notices from publicly owned treatment works under § 122.42(b) and 40 CFR part 403, upon request of the Regional Administrator;
(2) A copy of any significant comments presented in writing pursuant to the public notice of a draft permit and a summary of any significant comments presented at any hearing on any draft permit, except those comments regarding permits for which permit review has been waived under § 123.24(d)
(i) The Regional Administrator requests this information; or
(ii) The proposed permit contains requirements significantly different from those contained in the tentative determination and draft permit; or
(iii) Significant comments objecting to the tentative determination and draft permit have been presented at the hearing or in writing pursuant to the public notice.
(d) Any State permit program shall keep such records and submit to the Administrator such information as the Administrator may reasonably require to ascertain whether the State program complies with the requirements of CWA or of this part.
(a)(1) The Memorandum of Agreement shall provide a period of time (up to 90 days from receipt of proposed permits) to which the Regional Administrator may make general comments upon, objections to, or recommendations with respect to proposed permits. EPA reserves the right to take 90 days to supply specific grounds for objection, notwithstanding any shorter period specified in the Memorandum of Agreement, when a general objection is filed within the review period specified in the Memorandum of Agreement. The Regional Administrator shall send a copy of any comment, objection or recommendation to the permit applicant.
(2) In the case of general permits, EPA shall have 90 days from the date of receipt of the proposed general permit to comment upon, object to or make recommendations with respect to the proposed general permit, and is not bound by any shorter time limits set by the Memorandum of Agreement for general comments, objections or recommendations.
(b)(1) Within the period of time provided under the Memorandum of Agreement for making general comments upon, objections to or recommendations with respect to proposed permits, the Regional Administrator shall notify the State Director of any objection to issuance of a proposed permit (except as provided in paragraph (a)(2) of this section for proposed general permits). This notification shall set forth in writing the general nature of the objection.
(2) Within 90 days following receipt of a proposed permit to which he or she has objected under paragraph (b)(1) of this section, or in the case of general permits within 90 days after receipt of the proposed general permit, the Regional Administrator shall set forth in writing and transmit to the State Director:
(i) A statement of the reasons for the objection (including the section of CWA or regulations that support the objection), and
(ii) The actions that must be taken by the State Director to eliminate the objection (including the effluent limitations and conditions which the permit would include if it were issued by the Regional Administrator.)
Paragraphs (a) and (b) of this section, in effect, modify any existing agreement between EPA and the State which provides less than 90 days for EPA to supply the specific grounds for an objection. However, when an agreement provides for an EPA review period of less than 90 days, EPA must file a general objection, in accordance with paragraph (b)(1) of this section within the time specified in the agreement. This general objection must be followed by a specific objection within the 90-day period. This modification to MOA's allows EPA to provide detailed information concerning acceptable permit conditions, as required by section 402(d) of CWA. To avoid possible confusion, MOA's should be changed to reflect this arrangement.
(c) The Regional Administrator's objection to the issuance of a proposed permit must be based upon one or more of the following grounds:
(1) The permit fails to apply, or to ensure compliance with, any applicable requirement of this part;
For example, the Regional Administrator may object to a permit not requiring the achievement of required effluent limitations by applicable statutory deadlines.
(2) In the case of a proposed permit for which notification to the Administrator is required under section 402(b)(5) of CWA, the written recommendations of an affected State
(3) The procedures followed in connection with formulation of the proposed permit failed in a material respect to comply with procedures required by CWA or by regulations thereunder or by the Memorandum of Agreement;
(4) Any finding made by the State Director in connection with the proposed permit misinterprets CWA or any guidelines or regulations under CWA, or misapplies them to the facts;
(5) Any provisions of the proposed permit relating to the maintenance of records, reporting, monitoring, sampling, or the provision of any other information by the permittee are inadequate, in the judgment of the Regional Administrator, to assure compliance with permit conditions, including effluent standards and limitations or standards for sewage sludge use and disposal required by CWA, by the guidelines and regulations issued under CWA, or by the proposed permit;
(6) In the case of any proposed permit with respect to which applicable effluent standards and limitations or standards for sewage sludge use and disposal under sections 301, 302, 306, 307, 318, 403, and 405 of CWA have not yet been promulgated by the Agency, the proposed permit, in the judgment of the Regional Administrator, fails to carry out the provisions of CWA or of any regulations issued under CWA; the provisions of this paragraph apply to determinations made pursuant to § 125.3(c)(2) in the absence of applicable guidelines, to best management practices under section 304(e) of CWA, which must be incorporated into permits as requirements under section 301, 306, 307, 318, 403 or 405, and to sewage sludge use and disposal requirements developed on a case-by-case basis pursuant to section 405(d) of CWA, as the case may be;
(7) Issuance of the proposed permit would in any other respect be outside the requirements of CWA, or regulations issued under CWA.
(8) The effluent limits of a permit fail to satisfy the requirements of 40 CFR 122.44(d).
(9) For a permit issued by a Great Lakes State or Tribe (as defined in 40 CFR 132.2), the permit does not satisfy the conditions promulgated by the State, Tribe, or EPA pursuant to 40 CFR part 132.
(d) Prior to notifying the State Director of an objection based upon any of the grounds set forth in paragraph (c) of this section, the Regional Administrator:
(1) Will consider all data transmitted pursuant to § 123.43 (or, in the case of a sewage sludge management program, § 501.21 of this chapter);
(2) May, if the information provided is inadequate to determine whether the proposed permit meets the guidelines and requirements of CWA, request the State Director to transmit to the Regional Administrator the complete record of the permit proceedings before the State, or any portions of the record that the Regional Administrator determines are necessary for review. If this request is made within 30 days of receipt of the State submittal under § 123.43 (or, in the case of a sewage sludge management program, § 501.21 of this chapter), it will constitute an interim objection to the issuance of the permit, and the full period of time specified in the Memorandum of Agreement for the Regional Administrator's review will recommence when the Regional Administrator has received such record or portions of the record; and
(3) May, in his or her discretion, and to the extent feasible within the period of time available under the Memorandum of Agreement, afford to interested persons an opportunity to comment on the basis for the objection;
(e) Within 90 days of receipt by the State Director of an objection by the Regional Administrator, the State or interstate agency or any interested person may request that a public hearing be held by the Regional Administrator on the objection. A public hearing in accordance with the procedures of § 124.12 (c) and (d) of this chapter (or, in the case of a sewage sludge management program, § 501.15(d)(7) of this chapter) will be held, and public notice provided in accordance with § 124.10 of this chapter, (or, in the case of a sewage sludge management program, § 501.15(d)(5) of this chapter), whenever
(f) A public hearing held under paragraph (e) of this section shall be conducted by the Regional Administrator, and, at the Regional Administrator's discretion, with the assistance of an EPA panel designated by the Regional Administrator, in an orderly and expeditious manner.
(g) Following the public hearing, the Regional Administrator shall reaffirm the original objection, modify the terms of the objection, or withdraw the objection, and shall notify the State of this decision.
(h)(1) If no public hearing is held under paragraph (e) of this section and the State does not resubmit a permit revised to meet the Regional Administrator's objection within 90 days of receipt of the objection, the Regional Administrator may issue the permit in accordance with parts 121, 122 and 124 of this chapter and any other guidelines and requirements of CWA.
(2) If a public hearing is held under paragraph (e) of this section, the Regional Administrator does not withdraw the objection, and the State does not resubmit a permit revised to meet the Regional Administrator's objection or modified objection within 30 days of the date of the Regional Administrator's notification under paragraph (g) of this section, the Regional Administrator may issue the permit in accordance with parts 121, 122 and 124 of this chapter and any other guidelines and requirements of CWA.
(3) Exclusive authority to issue the permit passes to EPA when the times set out in this paragraph expire.
(i) [Reserved]
(j) The Regional Administrator may agree, in the Memorandum of Agreement under § 123.24 (or, in the case of a sewage sludge management program, § 501.14 of this chapter), to review draft permits rather than proposed permits. In such a case, a proposed permit need not be prepared by the State and transmitted to the Regional Administrator for review in accordance with this section unless the State proposes to issue a permit which differs from the draft permit reviewed by the Regional Administrator, the Regional Administrator has objected to the draft permit, or there is significant public comment.
The Director shall prepare quarterly, semi-annual, and annual reports as detailed below. When the State is the permit-issuing authority, the State Director shall submit all reports required under this section to the Regional Administrator, and the EPA Region in turn shall submit the State reports to EPA Headquarters. When EPA is the permit-issuing authority, the Regional Administrator shall submit all reports required under this section to EPA Headquarters.
(a)
(1)
(i) Provide a separate list of major NPDES permittees which shall be subcategorized as non-POTWs, POTWs, and Federal permittees.
(ii) Alphabetize each list by permittee name. When two or more permittees have the same name, the permittee with the lowest permit number shall be entered first.
(iii) For each permittee on the list, include the following information in the following order:
(A) The name, location, and permit number.
(B) A brief description and date of each instance of noncompliance for which paragraph (a)(2) of this section requires reporting. Each listing shall indicate each specific provision of paragraph (a)(2) (e.g., (ii)(A) thru (iii)(G)) which describes the reason for reporting the violation on the quarterly report.
(C) The date(s), and a brief description of the action(s) taken by the Director to ensure compliance.
(D) The status of the instance(s) of noncompliance and the date noncompliance was resolved.
(E) Any details which tend to explain or mitigate the instance(s) of noncompliance.
(2)
(A) All reported violations must be listed on the QNCR for the reporting period when the violation occurred, even if the violation is resolved during that reporting period.
(B) All permittees under current enforcement orders (i.e., administrative and judicial orders and consent decrees) for previous instances of noncompliance must be listed in the QNCR until the orders have been satisfied in full and the permittee is in compliance with permit conditions. If the permittee is in compliance with the enforcement order, but has not achieved full compliance with permit conditions, the compliance status shall be reported as “resolved pending,” but the permittee will continue to be listed on the QNCR.
(ii)
(A) Violations of conditions in enforcement orders except compliance schedules and reports.
(B) Violations of compliance schedule milestones for starting construction, completing construction, and attaining final compliance by 90 days or more from the date of the milestone specified in an enforcement order or a permit.
(C) Violations of permit effluent limits that exceed the Appendix A “Criteria for Noncompliance Reporting in the NPDES Program”.
(D) Failure to provide a compliance schedule report for final compliance or a monitoring report. This applies when the permittee has failed to submit a final compliance schedule progress report, pretreatment report, or a Discharge Monitoring Report within 30 days from the due date specified in an enforcement order or a permit.
(iii)
(A) (
(
(
(
(B) Failure of an approved POTW to implement its approved pretreatment program adequately including failure to enforce industrial pretreatment requirements on industrial users as required in the approved program.
(C) Violations of any compliance schedule milestones (except those milestones listed in paragraph (a)(2)(ii)(B) of this section) by 90 days or more from the date specified in an enforcement order or a permit.
(D) Failure of the permittee to provide reports (other than those reports listed in paragraph (a)(2)(ii)(D) of this section) within 30 days from the due date specified in an enforcement order or a permit.
(E) Instances when the required reports provided by the permittee are so deficient or incomplete as to cause misunderstanding by the Director and thus impede the review of the status of compliance.
(F) Violations of narrative requirements (e.g., requirements to develop Spill Prevention Control and Countermeasure Plans and requirements to implement Best Management Practices), which are of substantial concern to the regulatory agency.
(G) Any other violation or group of permit violations which the Director or Regional Administrator considers to be of substantial concern.
(b)
(c)
(2) A separate list of nonmajor discharges which are one or more years behind in construction phases of the compliance schedule shall also be submitted in alphabetical order by name and permit number.
(d)
(2)
This appendix describes the criteria for reporting violations of NPDES permit effluent limits in the quarterly noncompliance report (QNCR) as specified under § 123.45(a)(2)(ii)(c). Any violation of an NPDES permit is a violation of the Clean Water Act (CWA) for which the permittee is liable. An agency's decision as to what enforcement action, if any, should be taken in such cases, will be based on an analysis of facts and legal requirements.
Cases in which violations of permit effluent limits must be reported depend upon the magnitude and/or frequency of the violation. Effluent violations should be evaluated on a parameter-by-parameter and outfall-by-outfall basis. The criteria for reporting effluent violations are as follows:
Violations of monthly average effluent limits which exceed or equal the product of the Technical Review Criteria (TRC) times the effluent limit, and occur two months in a six month period must be reported. TRCs are for two groups of pollutants.
Chronic violations must be reported in the QNCR if the monthly average permit limits are exceeded any four months in a six-month period. These criteria apply to all Group I and Group II pollutants.
All organics are Group II except those specifically listed under Group I.
(a) Not later than February 4, 1989, each State shall submit to the Regional Administrator for review, approval, and implementation an individual control strategy for each point source identified by the State pursuant to section 304(l)(1)(C) of the Act which discharges to a water identified by the State pursuant to section 304(l)(1)(B) which will produce a reduction in the discharge of toxic pollutants from the point sources identified under section 304(l)(1)(C) through the establishment of effluent limitations under section 402 of the CWA and water quality standards under section 303(c)(2)(B) of the CWA, which reduction is sufficient, in combination with existing controls on point and nonpoint sources of pollution, to achieve the applicable water quality standard as soon as possible, but not later than three years after the date of establishment of such strategy.
(b) The Administrator shall approve or disapprove the control strategies submitted by any State pursuant to paragraph (a) of this section, not later than June 4, 1989. If a State fails to submit control strategies in accordance with paragraph (a) of this section or the Administrator does not approve the control strategies submitted by such State in accordance with paragraph (a), then, not later than June 4, 1990, the Administrator in cooperation with such State and after notice and opportunity for public comment, shall implement the requirements of CWA section 304(l)(1) in such State. In the implementation of such requirements, the Administrator shall, at a minimum, consider for listing under CWA section 304(l)(1) any navigable waters for which any person submits a petition to the Administrator for listing not later than October 1, 1989.
(c) For the purposes of this section the term individual control strategy, as set forth in section 304(l) of the CWA, means a final NPDES permit with supporting documentation showing that effluent limits are consistent with an approved wasteload allocation, or other documentation which shows that applicable water quality standards will be met not later than three years after the individual control strategy is established. Where a State is unable to issue a final permit on or before February 4, 1989, an individual control strategy may be a draft permit with an attached schedule (provided the State meets the schedule for issuing the final permit) indicating that the permit will be issued on or before February 4, 1990. If a point source is subject to section 304(l)(1)(C) of the CWA and is also subject to an on-site response action under sections 104 or 106 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), (42 U.S.C. 9601
(d) A petition submitted pursuant to section 304(l)(3) of the CWA must be submitted to the appropriate Regional Administrator. Petitions must identify a waterbody in sufficient detail so that EPA is able to determine the location and boundaries of the waterbody. The petition must also identify the list or lists for which the waterbody qualifies, and the petition must explain why the waterbody satisfies the criteria for listing under CWA section 304(l) and 40 CFR 130.10(d)(6).
(e) If the Regional Administrator disapproves one or more individual control strategies, or if a State fails to provide adequate public notice and an opportunity to comment on the ICSs, then, not later than June 4, 1989, the Regional Administrator shall give a notice of approval or disapproval of the individual control strategies submitted by each State pursuant to this section as follows:
(1) The notice of approval or disapproval given under this paragraph shall include the following:
(i) The name and address of the EPA office that reviews the State's submittals.
(ii) A brief description of the section 304(l) process.
(iii) A list of ICSs disapproved under this section and a finding that the ICSs will not meet all applicable review criteria under this section and section 304(l) of the CWA.
(iv) If the Regional Administrator determines that a State did not provide adequate public notice and an opportunity to comment on the waters, point sources, or ICSs prepared pursuant to section 304(l), or if the Regional Administrator chooses to exercise his or her discretion, a list of the ICSs approved under this section, and a finding that the ICSs satisfy all applicable review criteria.
(v) The location where interested persons may examine EPA's records of approval and disapproval.
(vi) The name, address, and telephone number of the person at the Regional Office from whom interested persons may obtain more information.
(vii) Notice that written petitions or comments are due within 120 days.
(2) The Regional Administrator shall provide the notice of approval or disapproval given under this paragraph to the appropriate State Director. The Regional Administrator shall publish a notice of availability, in a daily or weekly newspaper with State-wide circulation or in the
(3) As soon as practicable but not later than June 4, 1990, the Regional Offices shall issue a response to petitions or comments received under section 304(l). The response to comments shall be given in the same manner as the notice described in paragraph (e) of this section except for the following changes:
(i) The lists of ICSs reflecting any changes made pursuant to comments or petitions received.
(ii) A brief description of the subsequent steps in the section 304(l) process.
(f) EPA shall review, and approve or disapprove, the individual control strategies prepared under section 304(l) of the CWA, using the applicable criteria set forth in section 304(l) of the CWA, and in 40 CFR part 122, including § 122.44(d). At any time after the Regional Administrator disapproves an ICS (or conditionally aproves a draft permit as an ICS), the Regional Office may submit a written notification to the State that the Regional Office intends to issue the ICS. Upon mailing the notification, and notwithstanding any other regulation, exclusive authority to issue the permit passes to EPA.
(a) After determining that a State program submission is complete, EPA shall publish notice of the State's application in the
(1) Provide a comment period of not less than 45 days during which interested members of the public may express their views on the State program;
(2) Provide for a public hearing within the State to be held no less than 30 days after notice is published in the
(3) Indicate the cost of obtaining a copy of the State's submission;
(4) Indicate where and when the State's submission may be reviewed by the public;
(5) Indicate whom an interested member of the public should contact with any questions; and
(6) Briefly outline the fundamental aspects of the State's proposed program, and the process for EPA review and decision.
(b) Within 90 days of the receipt of a complete program submission under § 123.21 the Administrator shall approve or disapprove the program based on the requirements of this part and of CWA and taking into consideration all comments received. A responsiveness summary shall be prepared by the Regional Office which identifies the public participation activities conducted, describes the matters presented to the public, summarizes significant comments received and explains the Agency's response to these comments.
(c) If the Administrator approves the State's program he or she shall notify the State and publish notice in the
(d) If the Administrator disapproves the State program he or she shall notify the State of the reasons for disapproval and of any revisions or modifications to the State program which are necessary to obtain approval.
(a) Either EPA or the approved State may initiate program revision. Program revision may be necessary when the controlling Federal or State statutory or regulatory authority is modified or supplemented. The State shall keep EPA fully informed of any proposed modifications to its basic statutory or regulatory authority, its forms, procedures, or priorities. Grounds for program revision include cases where a State's existing approved program includes authority to issue NPDES permits for activities on a Federal Indian reservation and an Indian Tribe has subsequently been approved for assumption of the NPDES program under 40 CFR part 123 extending to those lands.
(b) Revision of a State program shall be accomplished as follows:
(1) The State shall submit a modified program description, Attorney General's statement, Memorandum of Agreement, or such other documents as EPA determines to be necessary under the circumstances.
(2) Whenever EPA determines that the proposed program revision is substantial, EPA shall issue public notice and provide an opportunity to comment for a period of at least 30 days. The public notice shall be mailed to interested persons and shall be published in the
(3) The Administrator will approve or disapprove program revisions based on the requirements of this part (or, in the case of a sewage sludge management program, 40 CFR part 501) and of the CWA.
(4) A program revision shall become effective upon the approval of the Administrator. Notice of approval of any substantial revision shall be published in the
(c) States with approved programs must notify EPA whenever they propose to transfer all or part of any program from the approved State agency to any other State agency, and must identify any new division of responsibilities among the agencies involved. The new agency is not authorized to administer the program until approved by the Administrator under paragraph (b) of this section. Organizational charts required under § 123.22(b) (or, in the case of a sewage sludge management program, § 501.12(b) of this chapter) must be revised and resubmitted.
(d) Whenever the Administrator has reason to believe that circumstances have changed with respect to a State program, he may request, and the State shall provide, a supplemental Attorney General's statement, program description, or such other documents or information as are necessary.
(e)
(f) Revision of a State program by a Great Lakes State or Tribe (as defined in 40 CFR 132.2) to conform to section 118 of the CWA and 40 CFR part 132 shall be accomplished pursuant to 40 CFR part 132.
(a) In the case of a sewage sludge management program, references in this section to “this part” will be deemed to refer to 40 CFR part 501. The Administrator may withdraw program approval when a State program no longer complies with the requirements of this part, and the State fails to take corrective action. Such circumstances include the following:
(1) Where the State's legal authority no longer meets the requirements of this part, including:
(i) Failure of the State to promulgate or enact new authorities when necessary; or
(ii) Action by a State legislature or court striking down or limiting State authorities.
(2) Where the operation of the State program fails to comply with the requirements of this part, including:
(i) Failure to exercise control over activities required to be regulated under this part, including failure to issue permits;
(ii) Repeated issuance of permits which do not conform to the requirements of this part; or
(iii) Failure to comply with the public participation requirements of this part.
(3) Where the State's enforcement program fails to comply with the requirements of this part, including:
(i) Failure to act on violations of permits or other program requirements;
(ii) Failure to seek adequate enforcement penalties or to collect administrative fines when imposed; or
(iii) Failure to inspect and monitor activities subject to regulation.
(4) Where the State program fails to comply with the terms of the Memorandum of Agreement required under § 123.24 (or, in the case of a sewage sludge management program, § 501.14 of this chapter).
(5) Where the State fails to develop an adequate regulatory program for developing water quality-based effluent limits in NPDES permits.
(6) Where a Great Lakes State or Tribe (as defined in 40 CFR 132.2) fails to adequately incorporate the NPDES permitting implementation procedures promulgated by the State, Tribe, or EPA pursuant to 40 CFR part 132 into individual permits.
(b) [Reserved]
(a) A State with a program approved under this part (or, in the case of a sewage sludge management program, 40 CFR part 501) may voluntarily transfer program responsibilities required by Federal law to EPA by taking the following actions, or in such other manner as may be agreed upon with the Administrator.
(1) The State shall give the Administrator 180 days notice of the proposed transfer and shall submit a plan for the orderly transfer of all relevant program information not in the possession of EPA (such as permits, permit files, compliance files, reports, permit applications) which are necessary for EPA to administer the program.
(2) Within 60 days of receiving the notice and transfer plan, the Administrator shall evaluate the State's transfer plan and shall identify any additional information needed by the Federal government for program administration and/or identify any other deficiencies in the plan.
(3) At least 30 days before the transfer is to occur the Administrator shall publish notice of the transfer in the
(b) The following procedures apply when the Administrator orders the commencement of proceedings to determine whether to withdraw approval of a State program.
(1)
(2)
(i)
(ii)
(iii)
(3)
(A) § 22.02—(use of number/gender);
(B) § 22.04(c)—(authorities of Presiding Officer);
(C) § 22.06—(filing/service of rulings and orders);
(D) § 22.09—(examination of filed documents);
(E) § 22.19(a), (b) and (c)—(prehearing conference);
(F) § 22.22—(evidence);
(G) § 22.23—(objections/offers of proof);
(H) § 22.25—(filing the transcript); and
(I) § 22.26—(findings/conclusions).
(ii) The following provisions are also applicable:
(A)
(
(
(B)
(C)
(
(
(
(D)
(
(
(4)
(ii) All orders issued by the Presiding Officer, transcripts of testimony, written statements of position, stipulations, exhibits, motions, briefs, and other written material of any kind submitted in the hearing shall be a part of the record and shall be available for inspection or copying in the Office of the Hearing Clerk, upon payment of costs. Inquiries may be made at the Office of the Administrative Law Judges, Hearing Clerk, 1200 Pennsylvania Ave., NW., Washington, DC 20460;
(iii) Upon notice to all parties the Presiding Officer may authorize corrections to the transcript which involves matters of substance;
(iv) An original and two (2) copies of all written submissions to the hearing shall be filed with the Hearing Clerk;
(v) A copy of each submission shall be served by the person making the submission upon the Presiding Officer and each party of record. Service under this paragraph shall take place by mail or personal delivery;
(vi) Every submission shall be accompanied by an acknowledgement of service by the person served or proof of service in the form of a statement of the date, time, and manner of service and the names of the persons served, certified by the person who made service, and;
(vii) The Hearing Clerk shall maintain and furnish to any person upon request, a list containing the name, service address, and telephone number of all parties and their attorneys or duly authorized representatives.
(5)
(6)
(A) Appear by counsel or other representative in all hearing and pre-hearing proceedings;
(B) Agree to stipulations of facts which shall be made a part of the record.
(7)
(ii) Copies of the recommended decision shall be served upon all parties.
(iii) Within 20 days after the certification and filing of the record and recommended decision, all parties may file with the Administrator exceptions to the recommended decision and a supporting brief.
(8)
(ii) If the Administrator concludes that the State has administered the program in conformity with the appropriate Act and regulations his decision shall constitute “final agency action” within the meaning of 5 U.S.C. 704.
(iii) If the Administrator concludes that the State has not administered the program in conformity with the appropriate Act and regulations he shall list the deficiencies in the program and provide the State a reasonable time, not to exceed 90 days, to take such appropriate corrective action as the Administrator determines necessary.
(iv) Within the time prescribed by the Administrator the State shall take such appropriate corrective action as required by the Administrator and shall file with the Administrator and all parties a statement certified by the State Director that such appropriate corrective action has been taken.
(v) The Administrator may require a further showing in addition to the certified statement that corrective action has been taken.
(vi) If the State fails to take such appropriate corrective action and file a certified statement thereof within the time prescribed by the Administrator, the Administrator shall issue a supplementary order withdrawing approval of the State program. If the State takes such appropriate corrective action, the Administrator shall issue a supplementary order stating that approval of authority is not withdrawn.
(vii) The Administrator's supplementary order shall constitute final Agency action within the meaning of 5 U.S.C. 704.
(viii) Withdrawal of authorization under this section and the appropriate Act does not relieve any person from complying with the requirements of State law, nor does it affect the validity of actions by the State prior to withdrawal.
Resource Conservation and Recovery Act, 42 U.S.C. 6901
(a) This part contains EPA procedures for issuing, modifying, revoking and reissuing, or terminating all RCRA, UIC, PSD and NPDES “permits” (including “sludge-only” permits issued pursuant to § 122.1(b)(2) of this chapter. The latter kinds of permits are governed by part 270. RCRA interim status and UIC authorization by rule are not “permits” and are covered by specific provisions in parts 144, subpart C, and 270. This part also does not apply to permits issued, modified, revoked and reissued or terminated by the Corps of Engineers. Those procedures are specified in 33 CFR parts 320-327. The procedures of this part also apply to denial of a permit for the active life of a RCRA hazardous waste management facility or unit under § 270.29.
(b) Part 124 is organized into five subparts. Subpart A contains general procedural requirements applicable to all permit programs covered by these provisions. Subparts B through D and Subpart G supplement these general provisions with requirements that apply to
(c) Part 124 offers an opportunity for public hearings (see § 124.12).
(d) This part is designed to allow permits for a given facility under two or more of the listed programs to be processed separately or together at the choice of the Regional Administrator. This allows EPA to combine the processing of permits only when appropriate, and not necessarily in all cases. The Regional Administrator may consolidate permit processing when the permit applications are submitted, when draft permits are prepared, or when final permit decisions are issued. This part also allows consolidated permits to be subject to a single public hearing under § 124.12. Permit applicants may recommend whether or not their applications should be consolidated in any given case.
(e) Certain procedural requirements set forth in part 124 must be adopted by States in order to gain EPA approval to operate RCRA, UIC, NPDES, and 404 permit programs. These requirements are listed in §§ 123.25 (NPDES), 145.11 (UIC), 233,26 (404), and 271.14 (RCRA) and signaled by the following words at the end of the appropriate part 124 section or paragraph heading: (
(f) To coordinate decisionmaking when different permits will be issued by EPA and approved State programs, this part allows applications to be jointly processed, joint comment periods and hearings to be held, and final permits to be issued on a cooperative basis whenever EPA and a State agree to take such steps in general or in individual cases. These joint processing agreements may be provided in the Memorandum of Agreement developed under §§ 123.24 (NPDES), 145.24 (UIC), 233.24 (404), and 271.8 (RCRA).
(a) In addition to the definitions given in §§ 122.2 and 123.2 (NPDES), 501.2 (sludge management), 144.3 and 145.2 (UIC), 233.3 (404), and 270.2 and 271.2 (RCRA), the definitions below apply to this part, except for PSD permits which are governed by the definitions in § 124.41. Terms not defined in this section have the meaning given by the appropriate Act.
(b) For the purposes of part 124, the term
(a)
(2) The Director shall not begin the processing of a permit until the applicant has fully complied with the application requirements for that permit. See §§ 270.10, 270.13 (RCRA), 144.31 (UIC), 40 CFR 52.21 (PSD), and 122.21 (NPDES).
(3) Permit applications (except for PSD permits) must comply with the signature and certification requirements of §§ 122.22 (NPDES), 144.32 (UIC), 233.6 (404), and 270.11 (RCRA).
(b) [Reserved]
(c) The Regional Administrator shall review for completeness every application for an EPA-issued permit. Each application for an EPA-issued permit submitted by a new HWM facility, a new UIC injection well, a major PSD stationary source or major PSD modification, or an NPDES new source or NPDES new discharger should be reviewed for completeness by the Regional Administrator within 30 days of its receipt. Each application for an EPA-issued permit submitted by an existing HWM facility (both Parts A and B of the application), existing injection well or existing NPDES source or sludge-only facility should be reviewed for completeness within 60 days of receipt. Upon completing the review, the Regional Administrator shall notify the applicant in writing whether the application is complete. If the application is incomplete, the Regional Administrator shall list the information necessary to make the application complete. When the application is for an existing HWM facility, an existing UIC injection well or an existing NPDES source or “sludge-only facility” the Regional Administrator shall specify in the notice of deficiency a date for submitting the necessary information. The Regional Administrator shall notify the applicant that the application is complete upon receiving this information. After the application is completed, the Regional Administrator may request additional information from an applicant but only when necessary to clarify, modify, or supplement previously submitted material. Requests for such additional information will not render an application incomplete.
(d) If an applicant fails or refuses to correct deficiencies in the application, the permit may be denied and appropriate enforcement actions may be taken under the applicable statutory provision including RCRA section 3008, SDWA sections 1423 and 1424, CAA section 167, and CWA sections 308, 309, 402(h), and 402(k).
(e) If the Regional Administrator decides that a site visit is necessary for any reason in conjunction with the processing of an application, he or she shall notify the applicant and a date shall be scheduled.
(f) The effective date of an application is the date on which the Regional
(g) For each application from a major new HWM facility, major new UIC injection well, major NPDES new source, major NPDES new discharger, or a permit to be issued under provisions of § 122.28(c), the Regional Administrator shall, no later than the effective date of the application, prepare and mail to the applicant a project decision schedule. (This paragraph does not apply to PSD permits.) The schedule shall specify target dates by which the Regional Administrator intends to:
(1) Prepare a draft permit;
(2) Give public notice;
(3) Complete the public comment period, including any public hearing; and
(4) Issue a final permit.
(a)(1) Whenever a facility or activity requires a permit under more than one statute covered by these regulations, processing of two or more applications for those permits may be consolidated. The first step in consolidation is to prepare each draft permit at the same time.
(2) Whenever draft permits are prepared at the same time, the statements of basis (required under § 124.7 for EPA-issued permits only) or fact sheets (§ 124.8), administrative records (required under § 124.9 for EPA-issued permits only), public comment periods (§ 124.10), and any public hearings (§ 124.12) on those permits should also be consolidated. The final permits may be issued together. They need not be issued together if in the judgment of the Regional Administrator or State Director(s), joint processing would result in unreasonable delay in the issuance of one or more permits.
(b) Whenever an existing facility or activity requires additional permits under one or more of the statutes covered by these regulations, the permitting authority may coordinate the expiration date(s) of the new permit(s) with the expiration date(s) of the existing permit(s) so that all permits expire simultaneously. Processing of the subsequent applications for renewal permits may then be consolidated.
(c) Processing of permit applications under paragraph (a) or (b) of this section may be consolidated as follows:
(1) The Director may consolidate permit processing at his or her discretion whenever a facility or activity requires all permits either from EPA or from an approved State.
(2) The Regional Administrator and the State Director(s) may agree to consolidate draft permits whenever a facility or activity requires permits from both EPA and an approved State.
(3) Permit applicants may recommend whether or not the processing of their applications should be consolidated.
(d) [Reserved]
(e) Except with the written consent of the permit applicant, the Regional Administrator shall not consolidate processing a PSD permit with any other permit under paragraph (a) or (b) of this section when to do so would delay issuance of the PSD permit more than one year from the effective date of the application under § 124.3(f).
(a) (
(b) If the Director decides the request is not justified, he or she shall send the
(c) (
(2) In a permit modification under this section, only those conditions to be modified shall be reopened when a new draft permit is prepared. All other aspects of the existing permit shall remain in effect for the duration of the unmodified permit. When a permit is revoked and reissued under this section, the entire permit is reopened just as if the permit had expired and was being reissued. During any revocation and reissuance proceeding the permittee shall comply with all conditions of the existing permit until a new final permit is reissued.
(3) “Minor modifications” as defined in §§ 122.63 (NPDES), 144.41 (UIC), and 233.16 (404), and “Classes 1 and 2 modifications” as defined in § 270.42 (a) and (b) (RCRA) are not subject to the requirements of this section.
(d) (
(2) For EPA-issued NPDES or RCRA permits, if the Director tentatively decides to terminate a permit under § 122.64(a) (NPDES) of this chapter, other than at the request of the permittee, or decides to conduct a hearing under section 3008 of RCRA in connection with the termination of a RCRA permit, he or she shall prepare a complaint under 40 CFR 22.13 and 22.44 of this chapter. Such termination of NPDES and RCRA permits shall be subject to the procedures of part 22 of this chapter.
(3) In the case of EPA-issued permits, a notice of intent to terminate or a complaint shall not be issued if the Regional Administrator and the permittee agree to termination in the course of transferring permit responsibility to an approved State under §§ 123.24(b)(1) (NPDES) of this chapter, 145.25(b)(1) (UIC) of this chapter, 271.8(b)(6) (RCRA) of this chapter, or 501.14(b)(1) (sludge) of this chapter. In addition, termination of an NPDES permit for cause pursuant to § 122.64 of this chapter may be accomplished by providing written notice to the permittee, unless the permittee objects.
(e) When EPA is the permitting authority, all draft permits (including notices of intent to terminate) prepared under this section shall be based on the administrative record as defined in § 124.9.
(f) (
(g)(1) (Reserved for PSD Modification Provisions).
(2) PSD permits may be terminated only by rescission under § 52.21(w) or by automatic expiration under § 52.21(r). Applications for rescission shall be precessed under § 52.21(w) and are not subject to this part.
(a) (
(b) If the Director tentatively decides to deny the permit application, he or she shall issue a notice of intent to deny. A notice of intent to deny the permit application is a type of draft permit which follows the same procedures as any draft permit prepared under this section. See § 124.6(e). If the Director's final decision (§ 124.15) is that the tentative decision to deny the permit application was incorrect, he or she shall withdraw the notice of intent to deny and proceed to prepare a draft permit under paragraph (d) of this section.
(c) (
(d) (
(1) All conditions under §§ 122.41 and 122.43 (NPDES), 144.51 and 144.42 (UIC, 233.7 and 233.8 (404, or 270.30 and 270.32 (RCRA) (except for PSD permits)));
(2) All compliance schedules under §§ 122.47 (NPDES), 144.53 (UIC), 233.10 (404), or 270.33 (RCRA) (except for PSD permits);
(3) All monitoring requirements under §§ 122.48 (NPDES), 144.54 (UIC), 233.11 (404), or 270.31 (RCRA) (except for PSD permits); and
(4) For:
(i) RCRA permits, standards for treatment, storage, and/or disposal and other permit conditions under § 270.30;
(ii) UIC permits, permit conditions under § 144.52;
(iii) PSD permits, permit conditions under 40 CFR § 52.21;
(iv) 404 permits, permit conditions under §§ 233.7 and 233.8;
(v) NPDES permits, effluent limitations, standards, prohibitions, standards for sewage sludge use or disposal, and conditions under §§ 122.41, 122.42, and 122.44, including when applicable any conditions certified by a State agency under § 124.55, and all variances that are to be included under § 124.63.
(e) (
EPA shall prepare a statement of basis for every draft permit for which a fact sheet under § 124.8 is not prepared. The statement of basis shall briefly describe the derivation of the conditions of the draft permit and the reasons for them or, in the case of notices of intent to deny or terminate, reasons supporting the tentative decision. The statement of basis shall be sent to the applicant and, on request, to any other person.
(
(a) A fact sheet shall be prepared for every draft permit for a major HWM, UIC, 404, or NPDES facility or activity, for every Class I sludge management facility, for every 404 and NPDES general permit (§§ 237.37 and 122.28), for every NPDES draft permit that incorporates a variance or requires an explanation under § 124.56(b), for every draft permit that includes a sewage sludge land application plan under 40 CFR 501.15(a)(2)(ix), and for every draft permit which the Director finds is the subject of wide-spread public interest or raises major issues. The fact sheet shall briefly set forth the principal facts and the significant factual, legal, methodological and policy questions considered in preparing the draft permit. The Director shall send this fact sheet to the applicant and, on request, to any other person.
(b) The fact sheet shall include, when applicable:
(1) A brief description of the type of facility or activity which is the subject of the draft permit;
(2) The type and quantity of wastes, fluids, or pollutants which are proposed to be or are being treated, stored, disposed of, injected, emitted, or discharged.
(3) For a PSD permit, the degree of increment consumption expected to result from operation of the facility or activity.
(4) A brief summary of the basis for the draft permit conditions including references to applicable statutory or regulatory provisions and appropriate supporting references to the administrative record required by § 124.9 (for EPA-issued permits);
(5) Reasons why any requested variances or alternatives to required standards do or do not appear justified;
(6) A description of the procedures for reaching a final decision on the draft permit including:
(i) The beginning and ending dates of the comment period under § 124.10 and the address where comments will be received;
(ii) Procedures for requesting a hearing and the nature of that hearing; and
(iii) Any other procedures by which the public may participate in the final decision.
(7) Name and telephone number of a person to contact for additional information.
(8) For NPDES permits, provisions satisfying the requirements of § 124.56.
(9) Justification for waiver of any application requirements under § 122.21(j) or (q) of this chapter.
(a) The provisions of a draft permit prepared by EPA under § 124.6 shall be based on the administrative record defined in this section.
(b) For preparing a draft permit under § 124.6, the record shall consist of:
(1) The application, if required, and any supporting data furnished by the applicant;
(2) The draft permit or notice of intent to deny the application or to terminate the permit;
(3) The statement of basis (§ 124.7) or fact sheet (§ 124.8);
(4) All documents cited in the statement of basis or fact sheet; and
(5) Other documents contained in the supporting file for the draft permit.
(6) For NPDES new source draft permits only, any environmental assessment, environmental impact statement (EIS), finding of no significant impact, or environmental information document and any supplement to an EIS that may have been prepared. NPDES permits other than permits to new
(c) Material readily available at the issuing Regional Office or published material that is generally available, and that is included in the administrative record under paragraphs (b) and (c) of this section, need not be physically included with the rest of the record as long as it is specifically referred to in the statement of basis or the fact sheet.
(d) This section applies to all draft permits when public notice was given after the effective date of these regulations.
(a)
(i) A permit application has been tentatively denied under § 124.6(b);
(ii) (
(iii) (
(iv) An appeal has been granted under § 124.19(c);
(v) (
(vi) An NPDES new source determination has been made under § 122.29.
(2) No public notice is required when a request for permit modification, revocation and reissuance, or termination is denied under § 124.5(b). Written notice of that denial shall be given to the requester and to the permittee.
(3) Public notices may describe more than one permit or permit actions.
(b)
(2) Public notice of a public hearing shall be given at least 30 days before the hearing. (Public notice of the hearing may be given at the same time as public notice of the draft permit and the two notices may be combined.)
(c)
(1) By mailing a copy of a notice to the following persons (any person otherwise entitled to receive notice under this paragraph may waive his or her rights to receive notice for any classes and categories of permits);
(i) The applicant (except for NPDES and 404 general permits when there is no applicant);
(ii) Any other agency which the Director knows has issued or is required to issue a RCRA, UIC, PSD (or other permit under the Clean Air Act), NPDES, 404, sludge management permit, or ocean dumping permit under the Marine Research Protection and Sanctuaries Act for the same facility or activity (including EPA when the draft permit is prepared by the State);
(iii) Federal and State agencies with jurisdiction over fish, shellfish, and wildlife resources and over coastal zone management plans, the Advisory Council on Historic Preservation, State Historic Preservation Officers, including any affected States (Indian Tribes). (For purposes of this paragraph, and in the context of the Underground Injection Control Program only, the term State includes Indian Tribes treated as States.)
(iv) For NPDES and 404 permits only, any State agency responsible for plan development under CWA section 208(b)(2), 208(b)(4) or 303(e) and the U.S.
(v) For NPDES permits only, any user identified in the permit application of a privately owned treatment works;
(vi) For 404 permits only, any reasonably ascertainable owner of property adjacent to the regulated facility or activity and the Regional Director of the Federal Aviation Administration if the discharge involves the construction of structures which may affect aircraft operations or for purposes associated with seaplane operations;
(vii) For PSD permits only, affected State and local air pollution control agencies, the chief executives of the city and county where the major stationary source or major modification would be located, any comprehensive regional land use planning agency and any State, Federal Land Manager, or Indian Governing Body whose lands may be affected by emissions from the regulated activity;
(viii) For Class I injection well UIC permits only, state and local oil and gas regulatory agencies and state agencies regulating mineral exploration and recovery;
(ix) Persons on a mailing list developed by:
(A) Including those who request in writing to be on the list;
(B) Soliciting persons for “area lists” from participants in past permit proceedings in that area; and
(C) Notifying the public of the opportunity to be put on the mailing list through periodic publication in the public press and in such publications as Regional and State funded newsletters, environmental bulletins, or State law journals. (The Director may update the mailing list from time to time by requesting written indication of continued interest from those listed. The Director may delete from the list the name of any person who fails to respond to such a request.)
(x)(A) To any unit of local government having jurisdiction over the area where the facility is proposed to be located; and (B) to each State agency having any authority under State law with respect to the construction or operation of such facility.
(2)(i) For major permits, NPDES and 404 general permits, and permits that include sewage sludge land application plans under 40 CFR 501.15(a)(2)(ix), publication of a notice in a daily or weekly newspaper within the area affected by the facility or activity; and for EPA-issued NPDES general permits, in the
The Director is encouraged to provide as much notice as possible of the NPDES or Section 404 draft general permit to the facilities or activities to be covered by the general permit.
(ii) For all RCRA permits, publication of a notice in a daily or weekly major local newspaper of general circulation and broadcast over local radio stations.
(3) When the program is being administered by an approved State, in a manner constituting legal notice to the public under State law;
(4) Any other method reasonably calculated to give actual notice of the action in question to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.
(d)
(i) Name and address of the office processing the permit action for which notice is being given;
(ii) Name and address of the permittee or permit applicant and, if different, of the facility or activity regulated by the permit, except in the case of NPDES and 404 draft general permits under §§ 122.28 and 233.37;
(iii) A brief description of the business conducted at the facility or activity described in the permit application or the draft permit, for NPDES or 404 general permits when there is no application.
(iv) Name, address and telephone number of a person from whom interested persons may obtain further information, including copies of the draft permit or draft general permit, as the case may be, statement of basis or fact sheet, and the application; and
(v) A brief description of the comment procedures required by §§ 124.11
(vi) For EPA-issued permits, the location of the administrative record required by § 124.9, the times at which the record will be open for public inspection, and a statement that all data submitted by the applicant is available as part of the administrative record.
(vii) For NPDES permits only (including those for “sludge-only facilities”), a general description of the location of each existing or proposed discharge point and the name of the receiving water and the sludge use and disposal practice(s) and the location of each sludge treatment works treating domestic sewage and use or disposal sites known at the time of permit application. For EPA-issued NPDES permits only, if the discharge is from a new source, a statement as to whether an environmental impact statement will be or has been prepared.
(viii) For 404 permits only,
(A) The purpose of the proposed activity (including, in the case of fill material, activities intended to be conducted on the fill), a description of the type, composition, and quantity of materials to be discharged and means of conveyance; and any proposed conditions and limitations on the discharge;
(B) The name and water quality standards classification, if applicable, of the receiving waters into which the discharge is proposed, and a general description of the site of each proposed discharge and the portions of the site and the discharges which are within State regulated waters;
(C) A description of the anticipated environmental effects of activities conducted under the permit;
(D) References to applicable statutory or regulatory authority; and
(E) Any other available information which may assist the public in evaluating the likely impact of the proposed activity upon the integrity of the receiving water.
(ix) Requirements applicable to cooling water intake structures under section 316(b) of the CWA, in accordance with part 125, subparts I , J, and N of this chapter.
(x) Any additional information considered necessary or proper.
(2)
(i) Reference to the date of previous public notices relating to the permit;
(ii) Date, time, and place of the hearing;
(iii) A brief description of the nature and purpose of the hearing, including the applicable rules and procedures; and
(iv) For 404 permits only, a summary of major issues raised to date during the public comment period.
(e) (
(
(a) (
(2) The Director may also hold a public hearing at his or her discretion, whenever, for instance, such a hearing might clarify one or more issues involved in the permit decision;
(3) For RCRA permits only, (i) the Director shall hold a public hearing whenever he or she receives written notice of opposition to a draft permit and a request for a hearing within 45 days of public notice under § 124.10(b)(1); (ii) whenever possible the Director shall schedule a hearing under this section at a location convenient to the nearest population center to the proposed facility;
(4) Public notice of the hearing shall be given as specified in § 124.10.
(b) Whenever a public hearing will be held and EPA is the permitting authority, the Regional Administrator shall designate a Presiding Officer for the hearing who shall be responsible for its scheduling and orderly conduct.
(c) Any person may submit oral or written statements and data concerning the draft permit. Reasonable limits may be set upon the time allowed for oral statements, and the submission of statements in writing may be required. The public comment period under § 124.10 shall automatically be extended to the close of any public hearing under this section. The hearing officer may also extend the comment period by so stating at the hearing.
(d) A tape recording or written transcript of the hearing shall be made available to the public.
All persons, including applicants, who believe any condition of a draft permit is inappropriate or that the Director's tentative decision to deny an application, terminate a permit, or prepare a draft permit is inappropriate, must raise all reasonably ascertainable issues and submit all reasonably available arguments supporting their position by the close of the public comment period (including any public hearing) under § 124.10. Any supporting materials which are submitted shall be included in full and may not be incorporated by reference, unless they are already part of the administrative record in the same proceeding, or consist of State or Federal statutes and regulations, EPA documents of general applicability, or other generally available reference materials. Commenters shall make supporting materials not already included in the administrative record available to EPA as directed by the Regional Administrator. (A comment period longer than 30 days may be necessary to give commenters a reasonable opportunity to comply with the requirements of this section. Additional time shall be granted under § 124.10 to the extent that a commenter who requests additional time demonstrates the need for such time.)
(a)(1) The Regional Administrator may order the public comment period reopened if the procedures of this paragraph could expedite the decisionmaking process. When the public comment period is reopened under this paragraph, all persons, including applicants, who believe any condition of a draft permit is inappropriate or that the Regional Administrator's tentative decision to deny an application, terminate a permit, or prepare a draft permit is inappropriate, must submit all reasonably available factual grounds supporting their position, including all supporting material, by a date, not less than sixty days after public notice under paragraph (a)(2) of this section, set by the Regional Administrator. Thereafter, any person may file a written response to the material filed by any other person, by a date, not less than twenty days after the date set for filing of the material, set by the Regional Administrator.
(2) Public notice of any comment period under this paragraph shall identify the issues to which the requirements of § 124.14(a) shall apply.
(3) On his own motion or on the request of any person, the Regional Administrator may direct that the requirements of paragraph (a)(1) of this section shall apply during the initial comment period where it reasonably appears that issuance of the permit will be contested and that applying the requirements of paragraph (a)(1) of this section will substantially expedite the decisionmaking process. The notice of the draft permit shall state whenever this has been done.
(4) A comment period of longer than 60 days will often be necessary in complicated proceedings to give commenters a reasonable opportunity to comply with the requirements of this section. Commenters may request longer comment periods and they shall be granted under § 124.10 to the extent they appear necessary.
(b) If any data information or arguments submitted during the public comment period, including information or arguments required under § 124.13, appear to raise substantial new questions concerning a permit, the Regional Administrator may take one or more of the following actions:
(1) Prepare a new draft permit, appropriately modified, under § 124.6;
(2) Prepare a revised statement of basis under § 124.7, a fact sheet or revised fact sheet under § 124.8 and reopen the comment period under § 124.14; or
(3) Reopen or extend the comment period under § 124.10 to give interested persons an opportunity to comment on the information or arguments submitted.
(c) Comments filed during the reopened comment period shall be limited to the substantial new questions that caused its reopening. The public notice under § 124.10 shall define the scope of the reopening.
(d) [Reserved]
(e) Public notice of any of the above actions shall be issued under § 124.10.
(a) After the close of the public comment period under § 124.10 on a draft permit, the Regional Administrator shall issue a final permit decision (or a decision to deny a permit for the active life of a RCRA hazardous waste management facility or unit under § 270.29). The Regional Administrator shall notify the applicant and each person who has submitted written comments or requested notice of the final permit decision. This notice shall include reference to the procedures for appealing a decision on a RCRA, UIC, PSD, or NPDES permit under § 124.19 of this part. For the purposes of this section, a final permit decision means a final decision to issue, deny, modify, revoke and reissue, or terminate a permit.
(b) A final permit decision (or a decision to deny a permit for the active life of a RCRA hazardous waste management facility or unit under § 270.29) shall become effective 30 days after the service of notice of the decision unless:
(1) A later effective date is specified in the decision; or
(2) Review is requested on the permit under § 124.19.
(3) No comments requested a change in the draft permit, in which case the permit shall become effective immediately upon issuance.
(a)
(2)(i) Uncontested conditions which are not severable from those contested shall be stayed together with the contested conditions. The Regional Administrator shall identify the stayed provisions of permits for existing facilities, injection wells, and sources. All other provisions of the permit for the existing facility, injection well, or source become fully effective and enforceable 30 days after the date of the notification required in paragraph (a)(2)(ii) of this section.
(ii) The Regional Administrator shall, as soon as possible after receiving notification from the EAB of the filing of a petition for review, notify the EAB, the applicant, and all other interested parties of the uncontested (and severable) conditions of the final permit that will become fully effective enforceable obligations of the permit as of the date specified in paragraph (a)(2)(i) of this section . For NPDES permits only, the notice shall comply with the requirements of § 124.60(b).
(b)
(2) No stay of an EPA-issued RCRA, UIC, or NPDES permit shall be granted based on the staying of any State-issued permit except at the discretion of the Regional Administrator and only upon written request from the State Director.
(c) Any facility or activity holding an existing permit must:
(1) Comply with the conditions of that permit during any modification or revocation and reissuance proceeding under § 124.5; and
(2) To the extent conditions of any new permit are stayed under this section, comply with the conditions of the existing permit which correspond to the stayed conditions, unless compliance with the existing conditions would be technologically incompatible with compliance with other conditions of the new permit which have not been stayed.
(a) (
(1) Specify which provisions, if any, of the draft permit have been changed in the final permit decision, and the reasons for the change; and
(2) Briefly describe and respond to all significant comments on the draft permit or the permit application (for section 404 permits only) raised during the public comment period, or during any hearing.
(b) For EPA-issued permits, any documents cited in the response to comments shall be included in the administrative record for the final permit decision as defined in § 124.18. If new points are raised or new material supplied during the public comment period, EPA may document its response to those matters by adding new materials to the administrative record.
(c) (
(a) The Regional Administrator shall base final permit decisions under § 124.15 on the administrative record defined in this section.
(b) The administrative record for any final permit shall consist of the administrative record for the draft permit and:
(1) All comments received during the public comment period provided under § 124.10 (including any extension or reopening under § 124.14);
(2) The tape or transcript of any hearing(s) held under § 124.12;
(3) Any written materials submitted at such a hearing;
(4) The response to comments required by § 124.17 and any new material placed in the record under that section;
(5) For NPDES new source permits only, final environmental impact statement and any supplement to the final EIS;
(6) Other documents contained in the supporting file for the permit; and
(7) The final permit.
(c) The additional documents required under paragraph (b) of this section should be added to the record as soon as possible after their receipt or publication by the Agency. The record shall be complete on the date the final permit is issued.
(d) This section applies to all final RCRA, UIC, PSD, and NPDES permits when the draft permit was subject to the administrative record requirements of § 124.9 and to all NPDES permits when the draft permit was included in a public notice after October 12, 1979.
(e) Material readily available at the issuing Regional Office, or published materials which are generally available and which are included in the administrative record under the standards of this section or of § 124.17 (“Response to comments”), need not be physically included in the same file as the rest of the record as long as it is specifically referred to in the statement of basis or fact sheet or in the response to comments.
(a) Within 30 days after a RCRA, UIC, NPDES, or PSD final permit decision (or a decision under 270.29 of this chapter to deny a permit for the active life of a RCRA hazardous waste management facility or unit) has been issued under § 124.15 of this part, any person who filed comments on that draft permit or participated in the public hearing may petition the Environmental Appeals Board to review any condition of the permit decision. Persons affected by an NPDES general permit may not file a petition under this section or otherwise challenge the conditions of the general permit in further Agency proceedings. They may, instead, either challenge the general permit in court, or apply for an individual NPDES permit under § 122.21 as authorized in § 122.28 and then petition the Board for review as provided by this section. As provided in § 122.28(b)(3), any interested person may also petition the Director to require an individual NPDES permit for any discharger eligible for authorization to discharge under an NPDES general permit. Any person who failed to file comments or failed to participate in the public hearing on the draft permit may petition for administrative review only to the extent of the changes from the draft to the final permit decision. The 30-day period within which a person may request review under this section begins with the service of notice of the Regional Administrator's action unless a later date is specified in that notice. The petition shall include a statement of the reasons supporting that review, including a demonstration that any issues being raised were raised during the public comment period (including any public hearing) to the extent required by these regulations and when appropriate, a showing that the condition in question is based on:
(1) A finding of fact or conclusion of law which is clearly erroneous, or
(2) An exercise of discretion or an important policy consideration which the Environmental Appeals Board should, in its discretion, review.
(b) The Environmental Appeals Board may also decide on its own initiative to review any condition of any RCRA, UIC, NPDES, or PSD permit decision issued under this part for which review is available under paragraph (a) of this section. The Environmental Appeals Board must act under this paragraph within 30 days of the service date of notice of the Regional Administrator's action.
(c) Within a reasonable time following the filing of the petition for review, the Environmental Appeals Board shall issue an order granting or denying the petition for review. To the extent review is denied, the conditions of the final permit decision become final agency action. Public notice of any grant of review by the Environmental Appeals Board under paragraph (a) or (b) of this section shall be given
(d) The Regional Administrator, at any time prior to the rendering of a decision under paragraph (c) of this section to grant or deny review of a permit decision, may, upon notification to the Board and any interested parties, withdraw the permit and prepare a new draft permit under § 124.6 addressing the portions so withdrawn. The new draft permit shall proceed through the same process of public comment and opportunity for a public hearing as would apply to any other draft permit subject to this part. Any portions of the permit which are not withdrawn and which are not stayed under § 124.16(a) continue to apply.
(e) A petition to the Environmental Appeals Board under paragraph (a) of this section is, under 5 U.S.C. 704, a prerequisite to the seeking of judicial review of the final agency action.
(f)(1) For purposes of judicial review under the appropriate Act, final agency action occurs when a final RCRA, UIC, NPDES, or PSD permit decision is issued by EPA and agency review procedures under this section are exhausted. A final permit decision shall be issued by the Regional Administrator:
(i) When the Environmental Appeals Board issues notice to the parties that review has been denied;
(ii) When the Environmental Appeals Board issues a decision on the merits of the appeal and the decision does not include a remand of the proceedings; or
(iii) Upon the completion of remand proceedings if the proceedings are remanded, unless the Environmental Appeals Board's remand order specifically provides that appeal of the remand decision will be required to exhaust administrative remedies.
(2) Notice of any final agency action regarding a PSD permit shall promptly be published in the
(g) Motions to reconsider a final order shall be filed within ten (10) days after service of the final order. Every such motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. Motions for reconsideration under this provision shall be directed to, and decided by, the Environmental Appeals Board. Motions 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 pursuant to § 124.2 and in which the Administrator has issued the final order. A motion for reconsideration shall not stay the effective date of the final order unless specifically so ordered by the Environmental Appeals Board.
(a) Any time period scheduled to begin on the occurrence of an act or event shall begin on the day after the act or event.
(b) Any time period scheduled to begin before the occurrence of an act or event shall be computed so that the period ends on the day before the act or event.
(c) If the final day of any time period falls on a weekend or legal holiday, the time period shall be extended to the next working day.
(d) Whenever a party or interested person has the right or is required to act within a prescribed period after the service of notice or other paper upon him or her by mail, 3 days shall be added to the prescribed time.
(a) Part 124 of this chapter became effective for all permits except for RCRA permits on July 18, 1980. Part 124 of this chapter became effective for RCRA permits on November 19, 1980.
(b) EPA eliminated the previous requirement for NPDES permits to undergo an evidentiary hearing after permit issuance, and modified the procedures for termination of NPDES and RCRA permits, on June 14, 2000.
(c)(1) For any NPDES permit decision for which a request for evidentiary hearing was granted on or prior to
(2) For any NPDES permit decision for which a request for evidentiary hearing was denied on or prior to June 13, 2000, but for which the Board has not yet completed proceedings under § 124.91, the appeal, and any hearing or other proceedings on remand if the Board so orders, shall proceed pursuant to the procedures of this part as in effect on June 13, 2000.
(3) For any NPDES permit decision for which a request for evidentiary hearing was filed on or prior to June 13, 2000 but was neither granted nor denied prior to that date, the Regional Administrator shall, no later than July 14, 2000, notify the requester that the request for evidentiary hearing is being returned without prejudice. Notwithstanding the time limit in § 124.19(a), the requester may file an appeal with the Board, in accordance with the other requirements of § 124.19(a), no later than August 13, 2000.
(4) A party to a proceeding otherwise subject to paragraph (c) (1) or (2) of this section may, no later than June 14, 2000, request that the evidentiary hearing process be suspended. The Regional Administrator shall inquire of all other parties whether they desire the evidentiary hearing to continue. If no party desires the hearing to continue, the Regional Administrator shall return the request for evidentiary hearing in the manner specified in paragraph (c)(3) of this section.
(d) For any proceeding to terminate an NPDES or RCRA permit commenced on or prior to June 13, 2000, the Regional Administrator shall follow the procedures of § 124.5(d) as in effect on June 13, 2000, and any formal hearing shall follow the procedures of subpart E of this part as in effect on the same date.
(a)
(b) Prior to the submission of a part B RCRA permit application for a facility, or to the submission of a written Notice of Intent to be covered by a RCRA standardized permit (see 40 CFR part 270, subpart J), the applicant must hold at least one meeting with the public in order to solicit questions from the community and inform the community of proposed hazardous waste management activities. The applicant shall
(c) The applicant shall submit a summary of the meeting, along with the list of attendees and their addresses developed under paragraph (b) of this section, and copies of any written comments or materials submitted at the meeting, to the permitting agency as a part of the part B application, in accordance with 40 CFR 270.14(b), or with the written Notice of Intent to be covered by a RCRA standardized permit (see 40 CFR part 270, subpart J).
(d) The applicant must provide public notice of the pre-application meeting at least 30 days prior to the meeting. The applicant must maintain, and provide to the permitting agency upon request, documentation of the notice.
(1) The applicant shall provide public notice in all of the following forms:
(i)
(ii)
(iii)
(iv)
(2) The notices required under paragraph (d)(1) of this section must include:
(i) The date, time, and location of the meeting;
(ii) A brief description of the purpose of the meeting;
(iii) A brief description of the facility and proposed operations, including the address or a map (e.g., a sketched or copied street map) of the facility location;
(iv) A statement encouraging people to contact the facility at least 72 hours before the meeting if they need special access to participate in the meeting; and
(v) The name, address, and telephone number of a contact person for the applicant.
(a)
(b) Notification at application submittal.
(1) The Director shall provide public notice as set forth in § 124.10(c)(1)(ix), and notice to appropriate units of State and local government as set forth in § 124.10(c)(1)(x), that a part B permit application has been submitted to the Agency and is available for review.
(2) The notice shall be published within a reasonable period of time after the application is received by the Director. The notice must include:
(i) The name and telephone number of the applicant's contact person;
(ii) The name and telephone number of the permitting agency's contact office, and a mailing address to which information, opinions, and inquiries may be directed throughout the permit review process;
(iii) An address to which people can write in order to be put on the facility mailing list;
(iv) The location where copies of the permit application and any supporting documents can be viewed and copied;
(v) A brief description of the facility and proposed operations, including the address or a map (e.g., a sketched or copied street map) of the facility location on the front page of the notice; and
(vi) The date that the application was submitted.
(c) Concurrent with the notice required under § 124.32(b) of this subpart, the Director must place the permit application and any supporting documents in a location accessible to the public in the vicinity of the facility or at the permitting agency's office.
(a)
(b) The Director may assess the need, on a case-by-case basis, for an information repository. When assessing the need for an information repository, the Director shall consider a variety of factors, including: the level of public interest; the type of facility; the presence of an existing repository; and the proximity to the nearest copy of the administrative record. If the Director determines, at any time after submittal of a permit application, that there is a need for a repository, then the Director shall notify the facility that it must establish and maintain an information repository. (See 40 CFR 270.30(m) for similar provisions relating to the information repository during the life of a permit).
(c) The information repository shall contain all documents, reports, data, and information deemed necessary by the Director to fulfill the purposes for which the repository is established. The Director shall have the discretion to limit the contents of the repository.
(d) The information repository shall be located and maintained at a site chosen by the facility. If the Director finds the site unsuitable for the purposes and persons for which it was established, due to problems with the location, hours of availability, access, or other relevant considerations, then the Director shall specify a more appropriate site.
(e) The Director shall specify requirements for informing the public about the information repository. At a minimum, the Director shall require the facility to provide a written notice about the information repository to all individuals on the facility mailing list.
(f) The facility owner/operator shall be responsible for maintaining and updating the repository with appropriate information throughout a time period specified by the Director. The Director may close the repository at his or her discretion, based on the factors in paragraph (b) of this section.
Whenever PSD permits are processed under this part, the following terms shall have the following meanings:
(a) The Regional Administrator shall provide notice of any permit application for a proposed major PSD stationary source or major PSD modification the emissions from which would affect a Class I area to the Federal Land Manager, and the Federal official charged with direct responsibility for management of any lands within such area. The Regional Administrator shall provide such notice promptly after receiving the application.
(b) Any demonstration which the Federal Land Manager wishes to present under 40 CFR 52.21(q)(3), and any variances sought by an owner or operator under § 52.21(q)(4) shall be submitted in writing, together with any necessary supporting analysis, by the end of the public comment period under § 124.10 or § 124.118. (40 CFR 52.21(q)(3) provides for denial of a PSD permit to a facility or activity when the Federal Land Manager demonstrates that its emissions would adversely affect a Class I area even though the applicable increments
(c) Variances authorized by 40 CFR 52.21 (q)(5) through (q)(7) shall be handled as specified in those paragraphs and shall not be subject to this part. Upon receiving appropriate documentation of a variance properly granted under any of these provisions, the Regional Administrator shall enter the variance in the administrative record. Any decisions later made in proceedings under this part concerning that permit shall be consistent with the conditions of that variance.
(a) This subpart sets forth additional requirements and procedures for decisionmaking for the NPDES program.
(b) Decisions on NPDES variance requests ordinarily will be made during the permit issuance process. Variances and other changes in permit conditions ordinarily will be decided through the same notice-and-comment and hearing procedures as the basic permit.
(c) As stated in 40 CFR 131.4, an Indian Tribe that meets the statutory criteria which authorize EPA to treat the Tribe in a manner similar to that in which it treats a State for purposes of the Water Quality Standards program is likewise qualified for such treatment for purposes of State certification of water quality standards pursuant to section 401(a)(1) of the Act and subpart D of this part.
(a) Various sections of part 122, subpart B allow the Director to determine, on a case-by-case basis, that certain concentrated animal feeding operations (§ 122.23), concentrated aquatic animal production facilities (§ l22.24), storm water discharges (§ 122.26), and certain other facilities covered by general permits (§ 122.28) that do not generally require an individual permit may be required to obtain an individual permit because of their contributions to water pollution.
(b) Whenever the Regional Administrator decides that an individual permit is required under this section, except as provided in paragraph (c) of this section, the Regional Administrator shall notify the discharger in writing of that decision and the reasons for it, and shall send an application form with the notice. The discharger must apply for a permit under § 122.21 within 60 days of notice, unless permission for a later date is granted by the Regional Administrator. The question whether the designation was proper will remain open for consideration during the public comment period under § 124.11 and in any subsequent hearing.
(c) Prior to a case-by-case determination that an individual permit is required for a storm water discharge under this section (see § 122.26(a)(1)(v), (c)(1)(v), and (a)(9)(iii) of this chapter), the Regional Administrator may require the discharger to submit a permit application or other information regarding the discharge under section 308 of the CWA. In requiring such information, the Regional Administrator shall notify the discharger in writing and shall send an application form with the notice. The discharger must apply for a permit within 180 days of notice, unless permission for a later date is granted by the Regional Administrator. The question whether the initial designation was proper will remain open for consideration during the public comment period under § 124.11 and in any subsequent hearing.
(a) Under CWA section 401(a)(1), EPA may not issue a permit until a certification is granted or waived in accordance with that section by the State in which the discharge originates or will originate.
(b) Applications received without a State certification shall be forwarded by the Regional Administrator to the certifying State agency with a request that certification be granted or denied.
(c) If State certification has not been received by the time the draft permit is prepared, the Regional Administrator shall send the certifying State agency:
(1) A copy of a draft permit;
(2) A statement that EPA cannot issue or deny the permit until the certifying State agency has granted or denied certification under § 124.55, or waived its right to certify; and
(3) A statement that the State will be deemed to have waived its right to certify unless that right is exercised within a specified reasonable time not to exceed 60 days from the date the draft permit is mailed to the certifying State agency unless the Regional Administrator finds that unusual circumstances require a longer time.
(d) State certification shall be granted or denied within the reasonable time specified under paragraph (c)(3) of this section. The State shall send a notice of its action, including a copy of any certification, to the applicant and the Regional Administrator.
(e) State certification shall be in writing and shall include:
(1) Conditions which are necessary to assure compliance with the applicable provisions of CWA sections 208(e), 301, 302, 303, 306, and 307 and with appropriate requirements of State law;
(2) When the State certifies a draft permit instead of a permit application, any conditions more stringent than those in the draft permit which the State finds necessary to meet the requirements listed in paragraph (e)(1) of this section. For each more stringent condition, the certifying State agency shall cite the CWA or State law references upon which that condition is based. Failure to provide such a citation waives the right to certify with respect to that condition; and
(3) A statement of the extent to which each condition of the draft permit can be made less stringent without violating the requirements of State law, including water quality standards. Failure to provide this statement for any condition waives the right to certify or object to any less stringent condition which may be established during the EPA permit issuance process.
(a) When an application for a permit incorporating a variance request under CWA section 301(h) is submitted to a State, the appropriate State official shall either:
(1) Deny the request for the CWA section 301(h) variance (and so notify the applicant and EPA) and, if the State is an approved NPDES State and the permit is due for reissuance, process the permit application under normal procedures; or
(2) Forward a certification meeting the requirements of § 124.53 to the Regional Administrator.
(b) When EPA issues a tentative decision on the request for a variance under CWA section 301(h), and no certification has been received under paragraph (a) of this section, the Regional Administrator shall forward the tentative decision to the State in accordance with § 124.53(b) specifying a reasonable time for State certification and concurrence. If the State fails to deny or grant certification and concurrence under paragraph (a) of this section within such reasonable time, certification shall be waived and the State shall be deemed to have concurred in the issuance of a CWA section 301(h) variance.
(c) Any certification provided by a State under paragraph (a)(2) of this section shall constitute the State's concurrence (as required by section 301(h)) in the issuance of the permit incorporating a section 301(h) variance subject to any conditions specified therein by the State. CWA section 301(h) certification and concurrence under this section will not be forwarded to the State by EPA for recertification after the permit issuance process; States must specify any conditions required by State law, including water quality standards, in the initial certification.
(a) When certification is required under CWA section 401(a)(1) no final permit shall be issued:
(1) If certification is denied, or
(2) Unless the final permit incorporates the requirements specified in the certification under § 124.53(e).
(b) If there is a change in the State law or regulation upon which a certification is based, or if a court of competent jurisdiction or appropriate State board or agency stays, vacates, or remands a certification, a State which has issued a certification under § 124.53 may issue a modified certification or notice of waiver and forward it to EPA. If the modified certification is received before final agency action on the permit, the permit shall be consistent with the more stringent conditions which are based upon State law identified in such certification. If the certification or notice of waiver is received after final agency action on the permit, the Regional Administrator may modify the permit on request of the permittee only to the extent necessary to delete any conditions based on a condition in a certification invalidated by a court of competent jurisdiction or by an appropriate State board or agency.
(c) A State may not condition or deny a certification on the grounds that State law allows a less stringent permit condition. The Regional Administrator shall disregard any such certification conditions, and shall consider those conditions or denials as waivers of certification.
(d) A condition in a draft permit may be changed during agency review in any manner consistent with a certification meeting the requirements of § 124.53(e). No such changes shall require EPA to submit the permit to the State for recertification.
(e) Review and appeals of limitations and conditions attributable to State certification shall be made through the applicable procedures of the State and may not be made through the procedures in this part.
(f) Nothing in this section shall affect EPA's obligation to comply with § 122.47. See CWA section 301(b)(1)(C).
(
(a) Any calculations or other necessary explanation of the derivation of specific effluent limitations and conditions or standards for sewage sludge use or disposal, including a citation to the applicable effluent limitation guideline, performance standard, or standard for sewage sludge use or disposal as required by § 122.44 and reasons why they are applicable or an explanation of how the alternate effluent limitations were developed.
(b)(1) When the draft permit contains any of the following conditions, an explanation of the reasons that such conditions are applicable:
(i) Limitations to control toxic pollutants under § 122.44(e) of this chapter;
(ii) Limitations on internal waste streams under § 122.45(i) of this chapter;
(iii) Limitations on indicator pollutants under § 125.3(g) of this chapter;
(iv) Limitations set on a case-by-case basis under § 125.3 (c)(2) or (c)(3) of this chapter, or pursuant to Section 405(d)(4) of the CWA;
(v) Limitations to meet the criteria for permit issuance under § 122.4(i) of this chapter, or
(vi) Waivers from monitoring requirements granted under § 122.44(a) of this chapter.
(2) For every permit to be issued to a treatment works owned by a person other than a State or municipality, an explanation of the Director's decision on regulation of users under § 122.44(m).
(c) When appropriate, a sketch or detailed description of the location of the discharge or regulated activity described in the application; and
(d) For EPA-issued NPDES permits, the requirements of any State certification under § 124.53.
(e) For permits that include a sewage sludge land application plan under 40 CFR 501.15(a)(2)(ix), a brief description of how each of the required elements of
(a)
(1) A statement that the thermal component of the discharge is subject to effluent limitations under CWA section 301 or 306 and a brief description, including a quantitative statement, of the thermal effluent limitations proposed under section 301 or 306;
(2) A statement that a section 316(a) request has been filed and that alternative less stringent effluent limitations may be imposed on the thermal component of the discharge under section 316(a) and a brief description, including a quantitative statement, of the alternative effluent limitations, if any, included in the request; and
(3) If the applicant has filed an early screening request under § 125.72 for a section 316(a) variance, a statement that the applicant has submitted such a plan.
(b) [Reserved]
(
(a) If during the comment period for an NPDES draft permit, the District Engineer advises the Director in writing that anchorage and navigation of any of the waters of the United States would be substantially impaired by the granting of a permit, the permit shall be denied and the applicant so notified. If the District Engineer advised the Director that imposing specified conditions upon the permit is necessary to avoid any substantial impairment of anchorage or navigation, then the Director shall include the specified conditions in the permit. Review or appeal of denial of a permit or of conditions specified by the District Engineer shall be made through the applicable procedures of the Corps of Engineers, and may not be made through the procedures provided in this part. If the conditions are stayed by a court of competent jurisdiction or by applicable procedures of the Corps of Engineers, those conditions shall be considered stayed in the NPDES permit for the duration of that stay.
(b) If during the comment period the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, or any other State or Federal agency with jurisdiction over fish, wildlife, or public health advises the Director in writing that the imposition of specified conditions upon the permit is necessary to avoid substantial impairment of fish, shellfish, or wildlife resources, the Director may include the specified conditions in the permit to the extent they are determined necessary to carry out the provisions of § 122.49 and of the CWA.
(c) In appropriate cases the Director may consult with one or more of the agencies referred to in this section before issuing a draft permit and may reflect their views in the statement of basis, the fact sheet, or the draft permit.
In addition to the requirements of §§ 124.15, 124.16, and 124.19, the following provisions apply to NPDES permits:
(a) Notwithstanding the provisions of § 124.16(a)(1), if, for any offshore or coastal mobile exploratory drilling rig or coastal mobile developmental drilling rig which has never received a final effective permit to discharge at a “site,” but which is not a “new discharger” or a “new source,” the Regional Administrator finds that compliance with certain permit conditions may be necessary to avoid irreparable environmental harm during the administrative review, he or she may specify in the statement of basis or fact sheet
(b)(1) As provided in § 124.16(a), if an appeal of an initial permit decision is filed under § 124.19, the force and effect of the contested conditions of the final permit shall be stayed until final agency action under § 124.19(f). The Regional Administrator shall notify, in accordance with § 124.16(a)(2)(ii), the discharger and all interested parties of the uncontested conditions of the final permit that are enforceable obligations of the discharger.
(2) When effluent limitations are contested, but the underlying control technology is not, the notice shall identify the installation of the technology in accordance with the permit compliance schedules (if uncontested) as an uncontested, enforceable obligation of the permit.
(3) When a combination of technologies is contested, but a portion of the combination is not contested, that portion shall be identified as uncontested if compatible with the combination of technologies proposed by the requester.
(4) Uncontested conditions, if inseverable from a contested condition, shall be considered contested.
(5) Uncontested conditions shall become enforceable 30 days after the date of notice under paragraph (b)(1) of this section.
(6) Uncontested conditions shall include:
(i) Preliminary design and engineering studies or other requirements necessary to achieve the final permit conditions which do not entail substantial expenditures;
(ii) Permit conditions which will have to be met regardless of the outcome of the appeal under § 124.19;
(iii) When the discharger proposed a less stringent level of treatment than that contained in the final permit, any permit conditions appropriate to meet the levels proposed by the discharger, if the measures required to attain that less stringent level of treatment are consistent with the measures required to attain the limits proposed by any other party; and
(iv) Construction activities, such as segregation of waste streams or installation of equipment, which would partially meet the final permit conditions and could also be used to achieve the discharger's proposed alternative conditions.
(c) In addition to the requirements of § 124.16(c)(2), when an appeal is filed under § 124.19 on an application for a renewal of an existing permit and upon written request from the applicant, the Regional Administrator may delete requirements from the existing permit which unnecessarily duplicate uncontested provisions of the new permit.
No final NPDES permit for a new source shall be issued until at least 30 days after the date of issuance of a final environmental impact statement if one is required under 40 CFR 6.805.
(
(a) The Director may grant or deny requests for the following variances (subject to EPA objection under § 123.44 for State permits):
(1) Extensions under CWA section 301(i) based on delay in completion of a publicly owned treatment works;
(2) After consultation with the Regional Administrator, extensions under CWA section 301(k) based on the use of innovative technology; or
(3) Variances under CWA section 316(a) for thermal pollution.
(b) The State Director may deny, or forward to the Regional Administrator with a written concurrence, or submit to EPA without recommendation a completed request for:
(1) A variance based on the economic capability of the applicant under CWA section 301(c); or
(2) A variance based on water quality related effluent limitations under CWA section 302(b)(2).
(c) The Regional Administrator may deny, forward, or submit to the EPA Office Director for Water Enforcement and Permits with a recommendation for approval, a request for a variance
(d) The EPA Office Director for Water Enforcement and Permits may approve or deny any variance request submitted under paragraph (c) of this section. If the Office Director approves the variance, the Director may prepare a draft permit incorporating the variance. Any public notice of a draft permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision under § 124.64.
(e) The State Director may deny or forward to the Administrator (or his delegate) with a written concurrence a completed request for:
(1) A variance based on the presence of “fundamentally different factors” from those on which an effluent limitations guideline was based;
(2) A variance based upon certain water quality factors under CWA section 301(g).
(f) The Administrator (or his delegate) may grant or deny a request for a variance listed in paragraph (e) of this section that is forwarded by the State Director, or that is submitted to EPA by the requester where EPA is the permitting authority. If the Administrator (or his delegate) approves the variance, the State Director or Regional Administrator may prepare a draft permit incorporating the variance. Any public notice of a draft permit for which a variance or modification has been approved or denied shall identify the applicable procedures for appealing that decision under § 124.64.
(a) In States where EPA is the permit issuing authority and a request for a variance is filed as required by § 122.21, the request shall be processed as follows:
(1)(i) If, at the time, that a request for a variance based on the presence of fundamentally different factors or on section 301(g) of the CWA is submitted, the Regional Administrator has received an application under § 124.3 for issuance or renewal of that permit, but has not yet prepared a draft permit under § 124.6 covering the discharge in question, the Administrator (or his delegate) shall give notice of a tentative decision on the request at the time the notice of the draft permit is prepared as specified in § 124.10, unless this would significantly delay the processing of the permit. In that case the processing of the variance request may be separated from the permit in accordance with paragraph (a)(3) of this section, and the processing of the permit shall proceed without delay.
(ii) If, at the time, that a request for a variance under sections 301(c) or 302(b)(2) of the CWA is submitted, the Regional Administrator has received an application under § 124.3 for issuance or renewal of that permit, but has not yet prepared a draft permit under § 124.6 covering the discharge in question, the Regional Administrator, after obtaining any necessary concurrence of the EPA Deputy Assistant Administrator for Water Enforcement under § 124.62, shall give notice of a tentative decision on the request at the time the notice of the draft permit is prepared as specified in § 124.10, unless this would significantly delay the processing of the permit. In that case the processing of the variance request may be separated from the permit in accordance with paragraph (a)(3) of this section, and the processing of the permit shall proceed without delay.
(2) If, at the time that a request for a variance is filed the Regional Administrator has given notice under § 124.10 of a draft permit covering the discharge in question, but that permit has not yet become final, administrative proceedings concerning that permit may be stayed and the Regional Administrator shall prepare a new draft permit including a tentative decision on the request, and the fact sheet required by § 124.8. However, if this will significantly delay the processing of the existing draft permit or the Regional Administrator, for other reasons, considers combining the variance request and the existing draft permit
(3) If the permit has become final and no application under § 124.3 concerning it is pending or if the variance request has been separated from a draft permit as described in paragraphs (a) (1) and (2) of this section, the Regional Administrator may prepare a new draft permit and give notice of it under § 124.10. This draft permit shall be accompanied by the fact sheet required by § 124.8 except that the only matters considered shall relate to the requested variance.
(a) When a State issues a permit on which EPA has made a variance decision, separate appeals of the State permit and of the EPA variance decision are possible. If the owner or operator is challenging the same issues in both proceedings, the Regional Administrator will decide, in consultation with State officials, which case will be heard first.
(b) Variance decisions made by EPA may be appealed under the provisions of § 124.19.
(c)
(1) In the judgment of the Regional Administrator, the stay or the variance sought will not result in the discharge of pollutants in quantities which may reasonably be anticipated to pose an unacceptable risk to human health or the environment because of bioaccumulation, persistency in the environment, acute toxicity, chronic toxicity, or synergistic propensities; and
(2) In the judgment of the Regional Administrator, there is a substantial likelihood that the discharger will succeed on the merits of its appeal; and
(3) The discharger files a bond or other appropriate security which is required by the Regional Administrator to assure timely compliance with the requirements from which a variance is sought in the event that the appeal is unsuccessful.
(d) Stays for variances other than section 301(g) variances are governed by §§ 124.16 and 124.60.
(a) The only issues connected with issuance of a particular permit on which EPA will make a final Agency decision before the final permit is issued under §§ 124.15 and 124.60 are whether alternative effluent limitations would be justified under CWA section 316(a) and whether cooling water intake structures will use the best available technology under section 316(b). Permit applicants who wish an early decision on these issues should request it and furnish supporting reasons at the time their permit applications are filed under § 122.21. The Regional Administrator will then decide whether or not to make an early decision. If it is granted, both the early decision on CWA section 316 (a) or (b) issues and the grant of the balance of the permit shall be considered permit issuance under these regulations, and shall be subject to the same requirements of public notice and comment and the same opportunity for an appeal under § 124.19.
(b) If the Regional Administrator, on review of the administrative record, determines that the information necessary to decide whether or not the CWA section 316(a) issue is not likely to be available in time for a decision on permit issuance, the Regional Administrator may issue a permit under § 124.15 for a term up to 5 years. This permit shall require achievement of the effluent limitations initially proposed for the thermal component of the discharge no later than the date otherwise required by law. However, the permit shall also afford the permittee an opportunity to file a demonstration under CWA section 316(a) after conducting such studies as are required
(c) Any proceeding held under paragraph (a) of this section shall be publicly noticed as required by § 124.10 and shall be conducted at a time allowing the permittee to take necessary measures to meet the final compliance date in the event its request for modification of thermal limits is denied.
(d) Whenever the Regional Administrator defers the decision under CWA section 316(a), any decision under section 316(b) may be deferred.
The standardized permit is a special form of RCRA permit, that may consist of two parts: A uniform portion that the Director issues in all cases, and a supplemental portion that the Director issues at his or her discretion. We formally define the term “Standardized permit” in § 124.2.
(a) What comprises the uniform portion? The uniform portion of a standardized permit consists of terms and conditions, relevant to the unit(s) you are operating at your facility, that EPA has promulgated in 40 CFR part 267 (Standards for Owners and Operators of Hazardous Waste Facilities Operating under a Standardized Permit). If you intend to operate under the standardized permit, you must comply with these nationally applicable terms and conditions.
(b) What comprises the supplemental portion? The supplemental portion of a standardized permit consists of site-specific terms and conditions, beyond those of the uniform portion, that the Director may impose on your particular facility, as necessary to protect human health and the environment. If the Director issues you a supplemental portion, you must comply with the site-specific terms and conditions it imposes.
(1) When required under § 267.101, provisions to implement corrective action will be included in the supplemental portion.
(2) Unless otherwise specified, these supplemental permit terms and conditions apply to your facility in addition to the terms and conditions of the uniform portion of the standardized permit and not in place of any of those terms and conditions.
(a) You may be eligible for a standardized permit if:
(1) You generate hazardous waste and then store or non-thermally treat the hazardous waste on-site in containers, tanks, or containment buildings; or
(2) You receive hazardous waste generated off-site by a generator under the same ownership as the receiving facility, and then you store or non-thermally treat the hazardous waste in containers, tanks, or containment buildings.
(3) In either case, the Director will inform you of your eligibility when a decision is made on your permit.
(b) [Reserved]
(a) You must follow the requirements in this subpart as well as those in § 124.31, 40 CFR 270.10, and 40 CFR part 270, subpart J.
(b) You must submit to the Director a written Notice of Intent to operate under the standardized permit. You must also include the information and certifications required under 40 CFR part 270, subpart J.
Where all units in the RCRA permit are eligible for the standardized permit, you may request that your individual permit be revoked and reissued as a standardized permit, in accordance with § 124.5. Where only some of the units in the RCRA permit are eligible for the standardized permit, you may request that your individual permit be modified to no longer include those units and issue a standardized permit for those units in accordance with § 124.204.
(a) You must review the Notice of Intent and supporting information submitted by the facility owner or operator.
(b) You must determine whether the facility is or is not eligible to operate under the standardized permit.
(1) If the facility is eligible for the standardized permit, you must propose terms and conditions, if any, to include in a supplemental portion. If you determine that these terms and conditions are necessary to protect human health and the environment and cannot be imposed, you must tentatively deny coverage under the standardized permit.
(2) If the facility is not eligible for the standardized permit, you must tentatively deny coverage under the standardized permit. Cause for ineligibility may include, but is not limited to, the following:
(i) Failure of owner or operator to submit all the information required under § 270.275.
(ii) Information submitted that is required under § 270.275 is determined to be inadequate.
(iii) Facility does not meet the eligibility requirements (activities are outside the scope of the standardized permit).
(iv) Demonstrated history of significant non-compliance with applicable requirements.
(v) Permit conditions cannot ensure protection of human health and the environment.
(c) You must prepare your draft permit decision within 120 days after receiving the Notice of Intent and supporting documents from a facility owner or operator. Your tentative determination under this section to deny or grant coverage under the standardized permit, including any proposed site-specific conditions in a supplemental portion, constitutes a draft permit decision. You are allowed a one time extension of 30 days to prepare the draft permit decision. When the use of the 30-day extension is anticipated, you should inform the permit applicant during the initial 120-day review period. Reasons for an extension may include, but is not limited to, needing to complete review of submissions with the Notice of Intent (
(d) Many requirements in subpart A of this part apply to processing the standardized permit application and preparing your draft permit decision. For example, your draft permit decision must be accompanied by a statement of basis or fact sheet and must be based on the administrative record. In preparing your draft permit decision, the following provisions of subpart A of this part apply (subject to the following modifications):
(1) Section 124.1 Purpose and Scope. All paragraphs.
(2) Section 124.2 Definitions. All paragraphs.
(3) Section 124.3 Application for a permit. All paragraphs, except paragraphs (c), (d), (f), and (g) of this section apply.
(4) Section 124.4 Consolidation of permit processing. All paragraphs apply; however, in the context of the RCRA standardized permit, the reference to the public comment period is § 124.208 instead of § 124.10.
(5) Section 124.5 Modification, revocation and re-issuance, or termination of permits. Not applicable.
(6) Section 124.6 Draft permits. This section does not apply to the RCRA standardized permit; procedures in this subpart apply instead.
(7) Section 124.7 Statement of basis. The entire section applies.
(8) Section 124.8 Fact sheet. All paragraphs apply; however, in the context of the RCRA standardized permit, the reference to the public comment period is § 124.208 instead of § 124.10.
(9) Section 124.9 Administrative record for draft permits when EPA is the permitting authority. All paragraphs apply; however, in the context of the RCRA standardized permit, the reference to draft permits is § 24.204(c) instead of § 124.6.
(10) Section 124.10 Public notice of permit actions and public comment period. Only §§ 124.10(c)(1)(ix) and (c)(1)(x)(A) apply to the RCRA standardized permit. Most of § 124.10 does not apply to the RCRA standardized permit; §§ 124.207, 124.208, and 124.209 apply instead.
As Director of the regulatory agency, you must consider all comments received during the public comment period (see § 124.208) in making your final permit decision. In addition, many requirements in subpart A of this part apply to the public comment period, public hearings, and preparation of your final permit decision. In preparing a final permit decision, the following provisions of subpart A of this part apply (subject to the following modifications):
(a) Section 124.1 Purpose and Scope. All paragraphs.
(b) Section 124.2 Definitions. All paragraphs.
(c) Section 124.11 Public comments and requests for public hearings. This section does not apply to the RCRA standardized permit; the procedures in § 124.208 apply instead.
(d) Section 124.12 Public hearings. Paragraphs (b), (c), and (d) apply.
(e) Section 124.13 Obligation to raise issues and provide information during the public comment period. The entire section applies; however, in the context of the RCRA standardized permit, the reference to the public comment period is § 124.208 instead of § 124.10.
(f) Section124.14 Reopening of the public comment period. All paragraphs apply; however, in the context of the RCRA standardized permit, use the following reference: in § 124.14(b)(1) use reference to § 124.204 instead of § 124.6; in § 124.14(b)(3) use reference to § 124.208 instead of § 124.10; in § 124.14(c) use reference to § 124.207 instead of § 124.10.
(g) Section 124.15 Issuance and effective date of permit. All paragraphs apply, however, in the context of the RCRA standardized permit, the reference to the public comment period is § 124.208 instead of § 124.10.
(h) Section 124.16 Stays of contested permit conditions. All paragraphs apply.
(i) Section 124.17 Response to comments. This section does not apply to the RCRA standardized permit; procedures in § 124.209 apply instead.
(j) Section 124.18 Administrative record for final permit when EPA is the permitting authority. All paragraphs apply, however, use reference to § 124.209 instead of § 124.17.
(k) Seciton124.19 Appeal of RCRA, UIC, NPDES, and PSD permits. All paragraphs apply.
(l) Section 124.20 Computation of time. All paragraphs apply.
(a) Cases where you may determine that a facility is not eligible for the standardized permit include, but are not limited to, the following:
(1) The facility does not meet the criteria in § 124.201.
(2) The facility has a demonstrated history of significant non-compliance with regulations or permit conditions.
(3) The facility has a demonstrated history of submitting incomplete or deficient permit application information.
(4) The facility has submitted an incomplete or inadequate materials with the Notice of Intent.
(b) If you determine that a facility is not eligible for the standardized permit, you must inform the facility owner or operator that they must apply for an individual permit.
(c) You may require any facility that has a standardized permit to apply for and obtain an individual RCRA permit. Any interested person may petition
(1) The facility is not in compliance with the terms and conditions of the standardized RCRA permit.
(2) Circumstances have changed since the time the facility owner or operator applied for the standardized permit, so that the facility's hazardous waste management practices are no longer appropriately controlled under the standardized permit.
(d) You may require any facility authorized by a standardized permit to apply for an individual RCRA permit only if you have notified the facility owner or operator in writing that an individual permit application is required. You must include in this notice a brief statement of the reasons for your decision, a statement setting a deadline for the owner or operator to file the application, and a statement that, on the effective date of the individual RCRA permit, the facility's standardized permit automatically terminates. You may grant additional time upon request from the facility owner or operator.
(e) When you issue an individual RCRA permit to an owner or operator otherwise subject to a standardized RCRA permit, the standardized permit for their facility will automatically cease to apply on the effective date of the individual permit.
(a) You, as the Director, must provide public notice of your draft permit decision and must provide an opportunity for the public to submit comments and request a hearing on that decision. You must provide the public notice to:
(1) The applicant;
(2) Any other agency which you know has issued or is required to issue a RCRA permit for the same facility or activity (including EPA when the draft permit is prepared by the State);
(3) Federal and State agencies with jurisdiction over fish, shellfish, and wildlife resources and over coastal zone management plans, the Advisory Council on Historic Preservation, State Historic Preservation Officers, including any affected States;
(4) To everyone on the facility mailing list developed according to the requirements in § 124.10(c)(1)(ix); and
(5) To any units of local government having jurisdiction over the area where the facility is proposed to be located and to each State agency having any authority under State law with respect to the construction or operation of the facility.
(b) You must issue the public notice according to the following methods:
(1) Publication in a daily or weekly major local newspaper of general circulation and broadcast over local radio stations;
(2) When the program is being administered by an approved State, in a manner constituting legal notice to the public under State law; and
(3) Any other method reasonably calculated to give actual notice of the draft permit decision to the persons potentially affected by it, including press releases or any other forum or medium to elicit public participation.
(c) You must include the following information in the public notice:
(1) The name and telephone number of the contact person at the facility.
(2) The name and telephone number of your contact office, and a mailing address to which people may direct comments, information, opinions, or inquiries.
(3) An address to which people may write to be put on the facility mailing list.
(4) The location where people may view and make copies of the draft standardized permit and the Notice of Intent and supporting documents.
(5) A brief description of the facility and proposed operations, including the address or a map (for example, a sketched or copied street map) of the facility location on the front page of the notice.
(6) The date that the facility owner or operator submitted the Notice of Intent and supporting documents.
(d) At the same time that you issue the public notice under this section, you must place the draft standardized permit (including both the uniform portion and the supplemental portion, if any), the Notice of Intent and supporting documents, and the statement of basis or fact sheet in a location accessible to the public in the vicinity of the facility or at your office.
(a) The public notice that you issue under § 124.207 must allow at least 45 days for people to submit written comments on your draft permit decision. This time is referred to as the public comment period. You must automatically extend the public comment period to the close of any public hearing under this section. The hearing officer may also extend the comment period by so stating at the hearing.
(b) During the public comment period, any interested person may submit written comments on the draft permit and may request a public hearing. If someone wants to request a public hearing, they must submit their request in writing to you. Their request must state the nature of the issues they propose to raise during the hearing.
(c) You must hold a public hearing whenever you receive a written notice of opposition to a standardized permit and a request for a hearing within the public comment period under paragraph (a) of this section. You may also hold a public hearing at your discretion, whenever, for instance, such a hearing might clarify one or more issues involved in the permit decision.
(d) Whenever possible, you must schedule a hearing under this section at a location convenient to the nearest population center to the facility. You must give public notice of the hearing at least 30 days before the date set for the hearing. (You may give the public notice of the hearing at the same time you provide public notice of the draft permit, and you may combine the two notices.)
(e) You must give public notice of the hearing according to the methods in § 124.207(a) and (b). The hearing must be conducted according to the procedures in § 124.12(b), (c), and (d).
(f) In their written comments and during the public hearing, if held, interested parties may provide comments on the draft permit decision. These comments may include, but are not limited to, the facility's eligibility for the standardized permit, the tentative supplemental conditions you proposed, and the need for additional supplemental conditions.
(a) At the time you issue a final standardized permit, you must also respond to comments received during the public comment period on the draft permit. Your response must:
(1) Specify which additional conditions (
(2) Briefly describe and respond to all significant comments on the facility's ability to meet the general requirements (
(3) Make the comments and responses accessible to the public.
(b) You may request additional information from the facility owner or operator or inspect the facility if you need additional information to adequately respond to significant comments or to make decisions about conditions you may need to add to the supplemental portion of the standardized permit.
(c) If you are the Director of an EPA permitting agency, you must include in the administrative record for your final permit decision any documents cited in the response to comments. If new points are raised or new material supplied during the public comment period, you may document your response to those matters by adding new materials to the administrative record.
You may petition for administrative review of the Director's final permit decision, including his or her decision that the facility is eligible for the standardized permit, according to the procedures of § 124.19. However, the terms and conditions of the uniform portion of the standardized permit are not subject to administrative review under this provision.
You may make both routine changes, routine changes with prior Agency approval, and significant changes. For the purposes of this section:
(a) “Routine changes” are any changes to the standardized permit that qualify as a class 1 permit modification (without prior Agency approval) under 40 CFR 270.42, Appendix I, and
(b) “Routine changes with prior Agency approval” are for those changes to the standardized permit that would qualify as a class 1 modification with prior agency approval, or a class 2 permit modification under 40 CFR 270.42, Appendix I; and
(c) “Significant changes” are any changes to the standardized permit that:
(1) Qualify as a class 3 permit modification under 40 CFR 270.42, Appendix I;
(2) Are not explicitly identified in 40 CFR 270.42, Appendix I; or
(3) Amend any terms or conditions in the supplemental portion of your standardized permit.
(a) You can make routine changes to the standardized permit without obtaining approval from the Director. However, you must first determine whether the routine change you will make amends the information you submitted under 40 CFR 270.275 with your Notice of Intent to operate under the standardized permit.
(b) If the routine changes you make amend the information you submitted under 40 CFR 270.275 with your Notice of Intent to operate under the standardized permit, then before you make the routine changes you must:
(1) Submit to the Director the revised information pursuant to 40 CFR 270.275(a); and
(2) Provide notice of the changes to the facility mailing list and to state and local governments in accordance with the procedures in § 124.10(c)(1)(ix) and (x).
(a) Routine changes to the standardized permit with prior Agency approval may only be made with the prior written approval of the Director.
(b) You must also follow the procedures in § 124.212(b)(1)-(2).
(a) You must first provide notice of and conduct a public meeting.
(1) Public Meeting. You must hold a meeting with the public to solicit questions from the community and inform the community of your proposed modifications to your hazardous waste management activities. You must post a sign-in sheet or otherwise provide a voluntary opportunity for people attending the meeting to provide their names and addresses.
(2) Public Notice. At least 30 days before you plan to hold the meeting, you must issue a public notice in accordance with the requirements of § 124.31(d).
(b) After holding the public meeting, you must submit a modification request to the Director that:
(1) Describes the exact change(s) you want and whether they are changes to information you provided under 40 CFR 270.275 or to terms and conditions in the supplemental portion of your standardized permit;
(2) Explain why the modification is needed; and
(3) Includes a summary of the public meeting under paragraph (a) of this section, along with the list of
(c) Once the Director receives your modification request, he or she must make a tentative determination within 120 days to approve or disapprove your request. You are allowed a one time extension of 30 days to prepare the draft permit decision. When the use of the 30-day extension is anticipated, you should inform the permit applicant during the initial 120-day review period.
(d) After the Director makes this tentative determination, the procedures in § 124.205 and §§ 124.207 through 124.210 for processing an initial request for coverage under the standardized permit apply to making the final determination on the modification request.
The Clean Water Act, 33 U.S.C. 1251
This subpart establishes criteria and standards for the imposition of technology-based treatment requirements in permits under section 301(b) of the Act, including the application of EPA promulgated effluent limitations and case-by-case determinations of effluent limitations under section 402(a)(1) of the Act.
For the purposes of this part, any reference to
(a)
(1) For POTW's, effluent limitations based upon:
(i) Secondary treatment—from date of permit issuance; and
(ii) The best practicable waste treatment technology—not later than July 1, 1983; and
(2) For dischargers other than POTWs except as provided in § 122.29(d), effluent limitations requiring:
(i) The best practicable control technology currently available (BPT)—
(A) For effluent limitations promulgated under Section 304(b) after January 1, 1982 and requiring a level of control substantially greater or based on fundamentally different control technology than under permits for an industrial category issued before such date, compliance as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 304(b) and in no case later than March 31, 1989;
(B) For effluent limitations established on a case-by-case basis based on Best Professional Judgment (BPJ) under Section 402(a)(1)(B) of the Act in a permit issued after February 4, 1987, compliance as expeditiously as practicable but in no case later than three years after the date such limitations are established and in no case later than March 31, 1989;
(C) For all other BPT effluent limitations compliance is required from the date of permit issuance.
(ii) For conventional pollutants, the best conventional pollutant control technology (BCT)—
(A) For effluent limitations promulgated under section 304(b), as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 304(b), and in no case later than March 31, 1989.
(B) For effluent limitations established on a case-by-case (BPJ) basis under section 402(a)(1)(B) of the Act in a permit issued after February 4, 1987, compliance as expeditiously as practicable but in no case later than three years after the date such limitations are established and in no case later than March 31, 1989;
(iii) For all toxic pollutants referred to in Committee Print No. 95-30, House Committee on Public Works and Transportation, the best available technology economically achievable (BAT)—
(A) For effluent limitations established under section 304(b), as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 304(b), and in no case later than March 31, 1989.
(B) For permits issued on a case-by-case (BPJ) basis under section 402(a)(1)(B) of the Act after February 4, 1987 establishing BAT effluent limitations, compliance is required as expeditiously as practicable but in no case later than three years after the date such limitations are promulgated under section 304(b), and in no case later than March 31, 1989.
(iv) For all toxic pollutants other than those listed in Committee Print No. 95-30, effluent limitations based on BAT—
(A) For effluent limitations promulgated under section 304(b) compliance is required as expeditiously as practicable, but in no case later than three years after the date such limitations are promulgated under section 304(b) and in no case later than March 31, 1989.
(B) For permits issued on a case-by-case (BPJ) basis under Section 402(a)(1)(B) of the Act after February 4,
(v) For all pollutants which are neither toxic nor conventional pollutants, effluent limitations based on BAT—
(A) For effluent limitations promulgated under section 304(b), compliance is required as expeditiously as practicable but in no case later than 3 years after the date such limitations are established and in no case later than March 31, 1989.
(B) For permits issued on a case-by-case (BPJ) basis under section 402(a)(1)(B) of the Act after February 4, 1987 establishing BAT effluent limitations compliance is required as expeditiously as practicable but in no case later than three years after the date such limitations are established and in no case later than March 31, 1989.
(b)
(i) For POTW's, a section 301(h) marine discharge variance from secondary treatment (subpart G);
(ii) For dischargers other than POTW's;
(A) A section 301(c) economic variance from BAT (subpart E);
(B) A section 301(g) water quality related variance from BAT (subpart F); and
(C) A section 316(a) thermal variance from BPT, BCT and BAT (subpart H).
(2) The following extensions of deadlines for compliance with technology-based treatment requirements are authorized by the Act and may be applied for under § 124.53:
(i) For POTW's a section 301(i) extension of the secondary treatment deadline (subpart J);
(ii) For dischargers other than POTW's:
(A) A section 301(i) extension of the BPT deadline (subpart J); and
(B) A section 301(k) extension of the BAT deadline (subpart C).
(c)
(1) Application of EPA-promulgated effluent limitations developed under section 304 of the Act to dischargers by category or subcategory. These effluent limitations are not applicable to the extent that they have been remanded or withdrawn. However, in the case of a court remand, determinations underlying effluent limitations shall be binding in permit issuance proceedings where those determinations are not required to be reexamined by a court remanding the regulations. In addition, dischargers may seek fundamentally different factors variances from these effluent limitations under § 122.21 and subpart D of this part.
(2) On a case-by-case basis under section 402(a)(1) of the Act, to the extent that EPA-promulgated effluent limitations are inapplicable. The permit writer shall apply the appropriate factors listed in § 125.3(d) and shall consider:
(i) The appropriate technology for the category or class of point sources of which the applicant is a member, based upon all available information; and
(ii) Any unique factors relating to the applicant.
(3) Through a combination of the methods in paragraphs (d) (1) and (2) of this section. Where promulgated effluent limitations guidelines only apply to certain aspects of the discharger's operation, or to certain pollutants, other aspects or activities are subject to regulation on a case-by-case basis in order to carry out the provisions of the Act.
(4) Limitations developed under paragraph (d)(2) of this section may be expressed, where appropriate, in terms of toxicity (e.g., “the LC
(d) In setting case-by-case limitations pursuant to § 125.3(c), the permit
(1)
(ii) The age of equipment and facilities involved;
(iii) The process employed;
(iv) The engineering aspects of the application of various types of control techniques;
(v) Process changes; and
(vi) Non-water quality environmental impact (including energy requirements).
(2)
(ii) The comparison of the cost and level of reduction of such pollutants from the discharge from publicly owned treatment works to the cost and level of reduction of such pollutants from a class or category of industrial sources;
(iii) The age of equipment and facilities involved;
(iv) The process employed;
(v) The engineering aspects of the application of various types of control techniques;
(vi) Process changes; and
(vii) Non-water quality environmental impact (including energy requirements).
(3)
(ii) The process employed;
(iii) The engineering aspects of the application of various types of control techniques;
(iv) Process changes;
(v) The cost of achieving such effluent reduction; and
(vi) Non-water quality environmental impact (including energy requirements).
(e) Technology-based treatment requirements are applied prior to or at the point of discharge.
(f) Technology-based treatment requirements cannot be satisfied through the use of “non-treatment” techniques such as flow augmentation and in-stream mechanical aerators. However, these techniques may be considered as a method of achieving water quality standards on a case-by-case basis when:
(1) The technology-based treatment requirements applicable to the discharge are not sufficient to achieve the standards;
(2) The discharger agrees to waive any opportunity to request a variance under section 301 (c), (g) or (h) of the Act; and
(3) The discharger demonstrates that such a technique is the preferred environmental and economic method to achieve the standards after consideration of alternatives such as advanced waste treatment, recycle and reuse, land disposal, changes in operating methods, and other available methods.
(g) Technology-based effluent limitations shall be established under this subpart for solids, sludges, filter backwash, and other pollutants removed in the course of treatment or control of wastewaters in the same manner as for other pollutants.
(h)(1) The Director may set a permit limit for a conventional pollutant at a level more stringent than the best conventional pollution control technology (BCT), or a limit for a nonconventional pollutant which shall not be subject to modification under section 301 (c) or (g) of the Act where:
(i) Effluent limitations guidelines specify the pollutant as an indicator for a toxic pollutant, or
(ii)(A) The limitation reflects BAT-level control of discharges of one or more toxic pollutants which are present in the waste stream, and a specific BAT limitation upon the toxic pollutant(s) is not feasible for economic or technical reasons;
(B) The permit identifies which toxic pollutants are intended to be controlled by use of the limitation; and
(C) The fact sheet required by § 124.56 sets forth the basis for the limitation, including a finding that compliance with the limitation will result in BAT-level control of the toxic pollutant discharges identified in paragraph (h)(1)(ii)(B) of this section, and a finding that it would be economically or technically infeasible to directly limit the toxic pollutant(s).
(2) The Director may set a permit limit for a conventional pollutant at a level more stringent than BCT when:
(i) Effluent limitations guidelines specify the pollutant as an indicator for a hazardous substance, or
(ii)(A) The limitation reflects BAT-level control of discharges (or an appropriate level determined under section 301(c) or (g) of the Act) of one or more hazardous substance(s) which are present in the waste stream, and a specific BAT (or other appropriate) limitation upon the hazardous substance(s) is not feasible for economic or technical reasons;
(B) The permit identifies which hazardous substances are intended to be controlled by use of the limitation; and
(C) The fact sheet required by § 124.56 sets forth the basis for the limitation, including a finding that compliance with the limitations will result in BAT-level (or other appropriate level) control of the hazardous substances discharges identified in paragraph (h)(2)(ii)(B) of this section, and a finding that it would be economically or technically infeasible to directly limit the hazardous substance(s).
(iii) Hazardous substances which are also toxic pollutants are subject to paragraph (h)(1) of this section.
(3) The Director may not set a more stringent limit under the preceding paragraphs if the method of treatment required to comply with the limit differs from that which would be required if the toxic pollutant(s) or hazardous substance(s) controlled by the limit were limited directly.
(4) Toxic pollutants identified under paragraph (h)(1) of this section remain subject to the requirements of § 122.42(a)(1) (notification of increased discharges of toxic pollutants above levels reported in the application form).
(a) These regulations establish guidelines under sections 318 and 402 of the Act for approval of any discharge of pollutants associated with an aquaculture project.
(b) The regulations authorize, on a selective basis, controlled discharges which would otherwise be unlawful under the Act in order to determine the feasibility of using pollutants to grow aquatic organisms which can be harvested and used beneficially. EPA policy is to encourage such projects, while at the same time protecting other beneficial uses of the waters.
(c) Permits issued for discharges into aquaculture projects under this subpart are NPDES permits and are subject to the applicable requirements of parts 122, 123 and 124. Any permit shall include such conditions (including monitoring and reporting requirements) as are necessary to comply with those parts. Technology-based effluent limitations need not be applied to discharges into the approved project except with respect to toxic pollutants.
(a) No NPDES permit shall be issued to an aquaculture project unless:
(1) The Director determines that the aquaculture project:
(i) Is intended by the project operator to produce a crop which has significant direct or indirect commercial value (or is intended to be operated for research into possible production of such a crop); and
(ii) Does not occupy a designated project area which is larger than can be economically operated for the crop under cultivation or than is necessary for research purposes.
(2) The applicant has demonstrated, to the satisfaction of the Director, that the use of the pollutant to be discharged to the aquaculture project will result in an increased harvest of organisms under culture over what would naturally occur in the area;
(3) The applicant has demonstrated, to the satisfaction of the Director, that if the species to be cultivated in the aquaculture project is not indigenous
(4) The Director determines that the crop will not have a significant potential for human health hazards resulting from its consumption;
(5) The Director determines that migration of pollutants from the designated project area to water outside of the aquaculture project will not cause or contribute to a violation of water quality standards or a violation of the applicable standards and limitations applicable to the supplier of the pollutant that would govern if the aquaculture project were itself a point source. The approval of an aquaculture project shall not result in the enlargement of a pre-existing mixing zone area beyond what had been designated by the State for the original discharge.
(b) No permit shall be issued for any aquaculture project in conflict with a plan or an amendment to a plan approved under section 208(b) of the Act.
(c) No permit shall be issued for any aquaculture project located in the territorial sea, the waters of the contiguous zone, or the oceans, except in conformity with guidelines issued under section 403(c) of the Act.
(d) Designated project areas shall not include a portion of a body of water large enough to expose a substantial portion of the indigenous biota to the conditions within the designated project area. For example, the designated project area shall not include the entire width of a watercourse, since all organisms indigenous to that watercourse might be subjected to discharges of pollutants that would, except for the provisions of section 318 of the Act, violate section 301 of the Act.
(e) Any modifications caused by the construction or creation of a reef, barrier or containment structure shall not unduly alter the tidal regimen of an estuary or interfere with migrations of unconfined aquatic species.
(f) Any pollutants not required by or beneficial to the aquaculture crop shall not exceed applicable standards and limitations when entering the designated project area.
(a) This subpart establishes the criteria and standards to be used in determining whether effluent limitations alternative to those required by promulgated EPA effluent limitations guidelines under sections 301 and 304 of the Act (hereinafter referred to as “national limits”) should be imposed on a discharger because factors relating to the discharger's facilities, equipment, processes or other factors related to the discharger are fundamentally different from the factors considered by EPA in development of the national limits. This subpart applies to all national limitations promulgated under sections 301 and 304 of the Act, except for the BPT limits contained in 40 CFR 423.12 (steam electric generating point source category).
(b) In establishing national limits, EPA takes into account all the information it can collect, develop and solicit regarding the factors listed in sections 304(b) and 304(g) of the Act. In some cases, however, data which could affect these national limits as they apply to a particular discharge may not be available or may not be considered during their development. As a result, it may be necessary on a case-by-case basis to adjust the national limits, and make them either more or less stringent as they apply to certain dischargers within an industrial category or subcategory. This will only be done if data specific to that discharger indicates it presents factors fundamentally different from those considered by EPA in developing the limit at issue. Any
(a) A request for the establishment of effluent limitations under this subpart (fundamentally different factors variance) shall be approved only if:
(1) There is an applicable national limit which is applied in the permit and specifically controls the pollutant for which alternative effluent limitations or standards have been requested; and
(2) Factors relating to the discharge controlled by the permit are fundamentally different from those considered by EPA in establishing the national limits; and
(3) The request for alternative effluent limitations or standards is made in accordance with the procedural requirements of part 124.
(b) A request for the establishment of effluent limitations less stringent than those required by national limits guidelines shall be approved only if:
(1) The alternative effluent limitation or standard requested is no less stringent than justified by the fundamental difference; and
(2) The alternative effluent limitation or standard will ensure compliance with sections 208(e) and 301(b)(1)(C) of the Act; and
(3) Compliance with the national limits (either by using the technologies upon which the national limits are based or by other control alternatives) would result in:
(i) A removal cost wholly out of proportion to the removal cost considered during development of the national limits; or
(ii) A non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the national limits.
(c) A request for alternative limits more stringent than required by national limits shall be approved only if:
(1) The alternative effluent limitation or standard requested is no more stringent than justified by the fundamental difference; and
(2) Compliance with the alternative effluent limitation or standard would not result in:
(i) A removal cost wholly out of proportion to the removal cost considered during development of the national limits; or
(ii) A non-water quality environmental impact (including energy requirements) fundamentally more adverse than the impact considered during development of the national limits.
(d) Factors which may be considered fundamentally different are:
(1) The nature or quality of pollutants contained in the raw waste load of the applicant's process wastewater;
(2) Waste stream(s) associated with a discharger's process wastewater which were not considered in the development of the national limits will not ordinarily be treated as fundamentally different under paragraph (a) of this section. Instead, national limits should be applied to the other streams, and the unique stream(s) should be subject to limitations based on section 402(a)(1) of the Act. See § 125.2(c)(2).]
(2) The volume of the discharger's process wastewater and effluent discharged;
(3) Non-water quality environmental impact of control and treatment of the discharger's raw waste load;
(4) Energy requirements of the application of control and treatment technology;
(5) Age, size, land availability, and configuration as they relate to the discharger's equipment or facilities; processes employed; process changes; and engineering aspects of the application of control technology;
(6) Cost of compliance with required control technololgy.
(e) A variance request or portion of such a request under this section shall not be granted on any of the following grounds:
(1) The infeasibility of installing the required waste treatment equipment within the time the Act allows.
(2) The assertion that the national limits cannot be achieved with the appropriate waste treatment facilities installed, if such assertion is not based on factor(s) listed in paragraph (d) of this section;
(3) The discharger's ability to pay for the required waste treatment; or
(4) The impact of a discharge on local receiving water quality.
(f) Nothing in this section shall be construed to impair the right of any State or locality under section 510 of the Act to impose more stringent limitations than those required by Federal law.
(a) A written request for a variance under this subpart D shall be submitted in duplicate to the Director in accordance with §§ 122.21(m)(1) and 124.3 of this chapter.
(b) The burden is on the person requesting the variance to explain that:
(1) Factor(s) listed in § 125.31(b) regarding the discharger's facility are fundamentally different from the factors EPA considered in establishing the national limits. The requester should refer to all relevant material and information, such as the published guideline regulations development document, all associated technical and economic data collected for use in developing each national limit, all records of legal proceedings, and all written and printed documentation including records of communication, etc., relevant to the regulations which are kept on public file by the EPA;
(2) The alternative limitations requested are justified by the fundamental difference alleged in paragraph (b)(1) of this section; and
(3) The appropriate requirements of § 125.31 have been met.
Clean Water Act, as amended by the Clean Water Act of 1977, 33 U.S.C. 1251
This subpart establishes the criteria to be applied by EPA in acting on section 301(h) requests for modifications
(a) Section 301(h) of the Clean Water Act provides that:
Administrator, with the concurrence of the State, may issue a permit under section 402 which modifies the requirements of paragraph (b)(1)(B) of this section with respect to the discharge of any pollutant from a publicly owned treatment works into marine waters, if the applicant demonstrates to the satisfaction of the Administrator that—
(1) There is an applicable water quality standard specific to the pollutant for which the modification is requested, which has been identified under section 304(a)(6) of this Act;
(2) The discharge of pollutants in accordance with such modified requirements will not interfere, alone or in combination with pollutants from other sources, with the attainment or maintenance of that water quality which assures protection of public water supplies and protection and propagation of a balanced indigenous population of shellfish, fish, and wildlife, and allows recreational activities, in and on the water;
(3) The applicant has established a system for monitoring the impact of such discharge on a representative sample of aquatic biota, to the extent practicable, and the scope of such monitoring is limited to include only those scientific investigations which are necessary to study the effects of the proposed discharge;
(4) Such modified requirements will not result in any additional requirements on any other point or nonpoint source;
(5) All applicable pretreatment requirements for sources introducing waste into such treatment works will be enforced;
(6) In the case of any treatment works serving a population of 50,000 or more, with respect to any toxic pollutant introduced into such works by an industrial discharger for which pollutant there is no applicable pretreatment requirement in effect, sources introducing waste into such works are in compliance with all applicable pretreatment requirements, the applicant will enforce such requirements, and the applicant has in effect a pretreatment program which, in combination with the treatment of discharges from such works, removes the same amount of such pollutant as would be removed if such works were to apply secondary treatment to discharges and if such works had no pretreatment program with respect to such pollutant;
(7) To the extent practicable, the applicant has established a schedule of activities designed to eliminate the entrance of toxic pollutants from nonindustrial sources into such treatment works;
(8) There will be no new or substantially increased discharges from the point source of the pollutant to which the modification applies above that volume of discharge specified in the permit;
(9) The applicant at the time such modification becomes effective will be discharging effluent which has received at least primary or equivalent treatment and which meets the criteria established under section 304(a)(1) of this Act after initial mixing in the waters surrounding or adjacent to the point at which such effluent is discharged.
For the purposes of this section, the phrase “the discharge of any pollutant into marine waters” refers to a discharge into deep waters of the territorial sea or the waters of the contiguous zone, or into saline estuarine waters where there is strong tidal movement and other hydrological and geological characteristics which the Administrator determines necessary to allow compliance with paragraph (2) of this section, and section 101(a)(2) of this Act. For the purposes of paragraph (9), “primary or equivalent treatment” means treatment by screening, sedimentation, and skimming adequate to remove at least 30 percent of the biological oxygen demanding material and of the suspended solids in the treatment works influent, and disinfection, where appropriate. A municipality which applies secondary treatment shall be eligible to receive a permit pursuant to this subsection which modifies the requirements of paragraph (b)(1)(B) of this section with respect to the discharge of any pollutant from any treatment works owned by such municipality into marine waters. No permit issued under this subsection shall authorize the discharge of sewage sludge into marine waters. In order for a permit to be issued under this subsection for the discharge of a pollutant into marine waters, such marine waters must exhibit characteristics assuring that water providing dilution does not contain significant amounts of previously discharged effluent from such treatment works. No permit issued under this subsection shall authorize the discharge of any pollutant into saline estuarine waters which at the time of application do not support a balanced indigenous population of shellfish, fish, and wildlife, or allow recreation in and on the waters or which exhibit ambient water quality below applicable water quality standards adopted for the protection of public water supplies, shellfish, fish, and wildlife or recreational activities or such other standards necessary to assure
(b) Section 301(j)(1) of the Clean Water Act provides that:
Any application filed under this section for a modification of the provisions of—
(A) subsection (b)(1)(B) under subsection (h) of this section shall be filed not later than the 365th day which begins after the date of enactment of the Municipal Wastewater Treatment Construction Grant Amendments of 1981, except that a publicly owned treatment works which prior to December 31, 1982, had a contractual arrangement to use a portion of the capacity of an ocean outfall operated by another publicly owned treatment works which has applied for or received modification under subsection (h) may apply for a modification of subsection (h) in its own right not later than 30 days after the date of the enactment of the Water Quality Act of 1987.
(c) Section 22(e) of the Municipal Wastewater Treatment Construction Grant Amendments of 1981, Public Law 97-117, provides that:
The amendments made by this section shall take effect on the date of enactment of this Act except that no applicant, other than the city of Avalon, California, who applies after the date of enactment of this Act for a permit pursuant to subsection (h) of section 301 of the Federal Water Pollution Control Act which modifies the requirements of subsection (b)(1)(B) of section 301 of such Act shall receive such permit during the one-year period which begins on the date of enactment of this Act.
(d) Section 303(b)(2) of the Water Quality Act, Public Law 100-4, provides that:
Section 301(h)(3) shall only apply to modifications and renewals of modifications which are tentatively or finally approved after the date of the enactment of this Act.
(e) Section 303(g) of the Water Quality Act provides that:
The amendments made to sections 301(h) and (h)(2), as well as provisions of (h)(6) and (h)(9), shall not apply to an application for a permit under section 301(h) of the Federal Water Pollution Control Act which has been tentatively or finally approved by the Administrator before the date of the enactment of this Act; except that such amendments shall apply to all renewals of such permits after such date of enactment.
For the purpose of this subpart:
(a)
(b)
(c)
(d)
(e)
(f)
(1) Exhibits characteristics similar to those of nearby, healthy communities existing under comparable but unpolluted environmental conditions; or
(2) May reasonably be expected to become re-established in the polluted water body segment from adjacent waters if sources of pollution were removed.
(g)
(h)
(i)
(1) Construction of planned outfall improvements, including, without limitation, outfall relocation, outfall repair, or diffuser modification; or
(2) Construction of planned treatment system improvements to treatment levels or discharge characteristics; or
(3) Implementation of a planned program to improve operation and maintenance of an existing treatment system or to eliminate or control the introduction of pollutants into the applicant's treatment works.
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(y)
(z)
(aa)
(bb)
(cc)
(dd)
(a)
(b)
(1) Where such issuance would not assure compliance with all applicable requirements of this subpart and part 122;
(2) For the discharge of sewage sludge;
(3) Where such issuance would conflict with applicable provisions of State, local, or other Federal laws or Executive Orders. This includes compliance with the Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1451
(4) Where the discharge of any pollutant enters into saline estuarine waters which at the time of application do not support a balanced indigenous population of shellfish, fish, and wildlife, or allow recreation in and on the waters or which exhibit ambient water quality below applicable water quality standards adopted for the protection of public water supplies, shellfish, fish, and wildlife or recreational activities or such other standards necessary to assure support and protection of such uses. The prohibition contained in the preceding sentence shall apply without regard to the presence or absence of a causal relationship between such characteristics and the applicant's current or proposed discharge; or
(5) Where the discharge of any pollutant is into the New York Bight Apex.
(c)
(1) A signed, completed NPDES Application Standard form A, parts I, II, III;
(2) A completed Application Questionnaire;
(3) The certification in accordance with 40 CFR 122.22(d);
(4) In addition to the requirements of § 125.59(c) (1) through (3), applicants for permit renewal shall support continuation of the modification by supplying to EPA the results of studies and monitoring performed in accordance with § 125.63 during the life of the permit. Upon a demonstration meeting the statutory criteria and requirements of this subpart, the permit may be renewed under the applicable procedures of 40 CFR part 124.
(d)
(2) Other applicants may revise their applications one time following a tentative decision to propose changes to treatment levels and/or outfall and diffuser location and design in accordance with § 125.59(f)(2)(i). Revisions by such applicants which propose downgrading treatment levels and/or outfall and diffuser location and design must be justified on the basis of substantial changes in circumstances beyond the applicant's control since the time of application submission.
(3) Applicants authorized or requested to submit additional information under § 125.59(g) may submit a revised application in accordance with § 125.59(f)(2)(ii) where such additional information supports changes in proposed treatment levels and/or outfall location and diffuser design. The opportunity for such revision shall be in addition to the one-time revision allowed under § 125.59(d) (1) and (2).
(4) POTWs which revise their applications must:
(i) Modify their NPDES form and Application Questionnaire as needed to ensure that the information filed with their application is correct and complete;
(ii) Provide additional analysis and data as needed to demonstrate compliance with this subpart;
(iii) Obtain new State determinations under §§ 125.61(b)(2) and 125.64(b); and
(iv) Provide the certification described in paragraph (c)(3) of this section.
(5) Applications for permit renewal may not be revised.
(e)
(i) For compliance with § 125.60: (A) A description of the proposed treatment system which upgrades treatment to satisfy the requirements of § 125.60.
(B) A project plan, including a schedule for data collection and for achieving compliance with § 125.60. The project plan shall include dates for design and construction of necessary facilities, submittal of influent/effluent data, and submittal of any other information necessary to demonstrate compliance with § 125.60. The Administrator will review the project plan and may require revisions prior to authorizing submission of the additional information.
(ii) For compliance with § 125.65: (A) A determination of what approach will be used to achieve compliance with § 125.65.
(B) A project plan for achieving compliance. The project plan shall include any necessary data collection activities, submittal of additional information, and/or development of appropriate pretreatment limits to demonstrate compliance with § 125.65. The Administrator will review the project plan and may require revisions prior to submission of the additional information.
(iii) POTWs which submit additional information must:
(A) Modify their NPDES form and Application Questionnaire as needed to ensure that the information filed with their application is correct and complete;
(B) Obtain new State determinations under §§ 125.61(b)(2) and 125.64(b); and
(C) Provide the certification described in paragraph (c)(3) of this section.
(2) The information required under this paragraph must be submitted in accordance with the schedules in § 125.59(f)(3)(ii). If the applicant does not meet these schedules for compliance, EPA may deny the application on that basis.
(f)
(ii) The application for renewal of a 301(h) modified permit shall be submitted no less than 180 days prior to the expiration of the existing permit, unless permission for a later date has been granted by the Administrator. (The Administrator shall not grant permission for applications to be submitted later than the expiration date of the existing permit.)
(iii) A copy of the application shall be provided to the State and interstate agency(s) authorized to provide certification/concurrence under §§ 124.53 through 124.55 on or before the date the application is submitted to EPA.
(2)
(A) Submit to the appropriate Regional Administrator a letter of intent to revise their application either within 45 days of the date of EPA's tentative decision on their original application or within 45 days of November 26, 1982, whichever is later. Following receipt by EPA of a letter of intent, further EPA proceedings on the tentative decision under 40 CFR part 124 will be stayed.
(B) Submit the revised application as described for new applications in § 125.59(f)(1) either within one year of the date of EPA's tentative decision on their original application or within one year of November 26, 1982, if a tentative decision has already been made, whichever is later.
(ii) Applicants desiring to revise their applications under § 125.59(d)(3) must submit the revised application as described for new applications in § 125.59(f)(1) concurrent with submission of the additional information under § 125.59(g).
(3) Deadline for additional information to demonstrate compliance with §§ 125.60 and 125.65.
(i) A letter of intent required under § 125.59(e)(1) must be submitted by the following dates: for permittees with 301(h) modifications or for applicants to which a tentative or final decision has been issued, November 7, 1994; for all others, within 90 days after the Administrator issues a tentative decision on an application. Following receipt by EPA of a letter of intent containing the information required in § 125.59(e)(1), further EPA proceedings on the tentative decision under 40 CFR part 124 will be stayed.
(ii) The project plan submitted under § 125.59(e)(1) shall ensure that the applicant meets all the requirements of §§ 125.60 and 125.65 by the following deadlines:
(A) By August 9, 1996 for applicants that are not grandfathered under § 125.59(j).
(B) At the time of permit renewal or by August 9, 1996, whichever is later, for applicants that are grandfathered under § 125.59(j).
(4)
(g)(1) The Administrator may authorize or request an applicant to submit additional information by a specified date not to exceed one year from the date of authorization or request.
(2) Applicants seeking authorization to submit additional information on current/modified discharge characteristics, water quality, biological conditions or oceanographic characteristics must:
(i) Demonstrate that they made a diligent effort to provide such information with their application and were unable to do so, and
(ii) Submit a plan of study, including a schedule, for data collection and submittal of the additional information. EPA will review the plan of study and may require revisions prior to authorizing submission of the additional information.
(h)
(i)
(2) No section 301(h) modified permit shall be issued until the appropriate State certification/concurrence is granted or waived pursuant to § 124.54 or if the State denies certification/ concurrence pursuant to § 124.54.
(3) In the case of a modification issued to an applicant in a State administering an approved permit program under 40 CFR part 123, the State Director may:
(i) Revoke an existing permit as of the effective date of the EPA issued section 301(h) modified permit; and
(ii) Cosign the section 301(h) modified permit if the Director has indicated an intent to do so in the written concurrence.
(4) Any section 301(h) modified permit shall:
(i) Be issued in accordance with the procedures set forth in 40 CFR part 124, except that, because section 301(h) permits may be issued only by EPA, the terms “Administrator or a person designated by the Administrator” shall be substituted for the term “Director” as appropriate; and
(ii) Contain all applicable terms and conditions set forth in 40 CFR part 122 and § 125.68.
(5) Appeals of section 301(h) determinations shall be governed by the procedures in 40 CFR part 124.
(j)
(a) The applicant shall demonstrate that, at the time its modification becomes effective, it will be discharging effluent that has received at least primary or equivalent treatment.
(b) The applicant shall perform monitoring to ensure, based on the monthly average results of the monitoring, that the effluent it discharges has received primary or equivalent treatment.
(c)(1) An applicant may request that the demonstration of compliance with the requirement under paragraph (b) of this section to provide 30 percent removal of BOD be allowed on an averaging basis different from monthly (e.g., quarterly), subject to the demonstrations provided in paragraphs (c)(1)(i), (ii) and (iii) of this section. The Administrator may approve such requests if the applicant demonstrates to the Administrator's satisfaction that:
(i) The applicant's POTW is adequately designed and well operated;
(ii) The applicant will be able to meet all requirements under section 301(h) of the CWA and these subpart G regulations with the averaging basis selected; and
(iii) The applicant cannot achieve 30 percent removal on a monthly average basis because of circumstances beyond the applicant's control. Circumstances beyond the applicant's control may include seasonally dilute influent BOD concentrations due to relatively high (although nonexcessive) inflow and infiltration; relatively high soluble to insoluble BOD ratios on a fluctuating
(2) In no event shall averaging on a less frequent basis than annually be allowed.
(a) There must exist a water quality standard or standards applicable to the pollutant(s) for which a section 301(h) modified permit is requested, including:
(1) Water quality standards for biochemical oxygen demand or dissolved oxygen;
(2) Water quality standards for suspended solids, turbidity, light transmission, light scattering, or maintenance of the euphotic zone; and
(3) Water quality standards for pH.
(b) The applicant must: (1) Demonstrate that the modified discharge will comply with the above water quality standard(s); and
(2) Provide a determination signed by the State or interstate agency(s) authorized to provide certification under §§ 124.53 and 124.54 that the proposed modified discharge will comply with applicable provisions of State law including water quality standards. This determination shall include a discussion of the basis for the conclusion reached.
(a)
(i) All applicable water quality standards; and
(ii) All applicable EPA water quality criteria for pollutants for which there is no applicable EPA-approved water quality standard that directly corresponds to the EPA water quality criterion for the pollutant.
(iii) For purposes of paragraph (a)(1)(ii) of this section, a State water quality standard “directly corresponds” to an EPA water quality criterion only if:
(A) The State water quality standard addresses the same pollutant as the EPA water quality criterion and
(B) The State water quality standard specifies a numeric criterion for that pollutant or State objective methodology for deriving such a numeric criterion.
(iv) The evaluation of compliance with paragraphs (a)(1) (i) and (ii) of this section shall be based upon conditions reflecting periods of maximum stratification and during other periods when discharge characteristics, water quality, biological seasons, or oceanographic conditions indicate more critical situations may exist.
(2) The evaluation under paragraph (a)(1)(ii) of this section as to compliance with applicable section 304(a)(1) water quality criteria shall be based on the following:
(i)
(ii)
(B) For purposes of paragraph (a)(2)(ii)(A) of this section, an acceptable risk level will be a single level that has been consistently used, as determined by the Administrator, as the basis of the State's EPA-approved water quality standards for carcinogenic pollutants. Alternatively, the Administrator may consider a State's recommendation to use a risk level that has been otherwise adopted or formally proposed by the State. The State recommendation must demonstrate, to the satisfaction of the Administrator, that the recommended level is sufficiently protective of human health in light of the exposure and uncertainty factors associated with the estimate of the actual risk posed by the applicant's discharge. The State must include with its demonstration a showing that the risk level selected is based on the best information available and that the State has held a public hearing to review the selection of the risk level, in accordance with provisions of State law and public participation requirements of 40 CFR part 25. If the Administrator neither determines that there is a consistently used single risk level nor accepts a risk level recommended by the State, then the Administrator shall otherwise determine an acceptable risk level based on all relevant information.
(iii)
(3) The requirements of paragraphs (a)(1) and (a)(2) of this section apply in addition to, and do not waive or substitute for, the requirements of § 125.61.
(b)
(2) The applicant's modified discharge must not:
(i) Prevent a planned or existing public water supply from being used, or from continuing to be used, as a public water supply; or
(ii) Have the effect of requiring treatment over and above that which would be necessary in the absence of such discharge in order to comply with local and EPA drinking water standards.
(c)
(2) A balanced indigenous population of shellfish, fish, and wildlife must exist:
(i) Immediately beyond the zone of initial dilution of the applicant's modified discharge; and
(ii) In all other areas beyond the zone of initial dilution where marine life is actually or potentially affected by the applicant's modified discharge.
(3) Conditions within the zone of initial dilution must not contribute to extreme adverse biological impacts, including, but not limited to, the destruction of distinctive habitats of limited distribution, the presence of disease epicenter, or the stimulation of phytoplankton blooms which have adverse effects beyond the zone of initial dilution.
(4) In addition, for modified discharges into saline estuarine water:
(i) Benthic populations within the zone of initial dilution must not differ substantially from the balanced indigenous populations which exist immediately beyond the boundary of the zone of initial dilution;
(ii) The discharge must not interfere with estuarine migratory pathways within the zone of initial dilution; and
(iii) The discharge must not result in the accumulation of toxic pollutants or pesticides at levels which exert adverse
(d)
(2) There must be no Federal, State, or local restrictions on recreational activities within the vicinity of the applicant's modified outfall unless such restrictions are routinely imposed around sewage outfalls. This exception shall not apply where the restriction would be lifted or modified, in whole or in part, if the applicant were discharging a secondary treatment effluent.
(e)
(1) A demonstration that such improvements or alterations have been thoroughly planned and studied and can be completed or implemented expeditiously;
(2) Detailed analyses projecting changes in average and maximum monthly flow rates and composition of the applicant's discharge which are expected to result from proposed improvements or alterations;
(3) The assessments required by paragraphs (a) through (d) of this section based on its current discharge; and
(4) A detailed analysis of how the applicant's planned improvements or alterations will comply with the requirements of paragraphs (a) through (d) of this section.
(f)
(1) Contribute to, increase, or perpetuate such stressed conditions;
(2) Contribute to further degradation of the biota or water quality if the level of human perturbation from other sources increases; and
(3) Retard the recovery of the biota or water quality if the level of human perturbation from other sources decreases.
(a)
(i) Have a monitoring program that is:
(A) Designed to provide data to evaluate the impact of the modified discharge on the marine biota, demonstrate compliance with applicable water quality standards or water quality criteria, as applicable, and measure toxic substances in the discharge, and
(B) Limited to include only those scientific investigations necessary to study the effects of the proposed discharge;
(ii) Describe the sampling techniques, schedules and locations (including appropriate control sites), analytical techniques, quality control and verification procedures to be used in the monitoring program;
(iii) Demonstrate that it has the resources necessary to implement the program upon issuance of the modified permit and to carry it out for the life of the modified permit; and
(iv) Determine the frequency and extent of the monitoring program taking into consideration the applicant's rate of discharge, quantities of toxic pollutants discharged, and potentially significant impacts on receiving water
(2) The Administrator may require revision of the proposed monitoring program before issuing a modified permit and during the term of any modified permit.
(b)
(1) Biological monitoring shall include to the extent practicable:
(i) Periodic surveys of the biological communities and populations which are most likely affected by the discharge to enable comparisons with baseline conditions described in the application and verified by sampling at the control stations/reference sites during the periodic surveys;
(ii) Periodic determinations of the accumulation of toxic pollutants and pesticides in organisms and examination of adverse effects, such as disease, growth abnormalities, physiological stress, or death;
(iii) Sampling of sediments in areas of solids deposition in the vicinity of the ZID, in other areas of expected impact, and at appropriate reference sites to support the water quality and biological surveys and to measure the accumulation of toxic pollutants and pesticides; and
(iv) Where the discharge would affect commercial or recreational fisheries, periodic assessments of the conditions and productivity of fisheries.
(2) Small applicants are not subject to the requirements of paragraph (b)(1) (ii) through (iv) of this section if they discharge at depths greater than 10 meters and can demonstrate through a suspended solids deposition analysis that there will be negligible seabed accumulation in the vicinity of the modified discharge.
(3) For applicants seeking a section 301(h) modified permit based on:
(i) A current discharge, biological monitoring shall be designed to demonstrate ongoing compliance with the requirements of § 125.62(c);
(ii) An improved discharge or altered discharge other than outfall relocation, biological monitoring shall provide baseline data on the current impact of the discharge and data which demonstrate, upon completion of improvements or alterations, that the requirements of § 125.62(c) are met; or
(iii) An improved or altered discharge involving outfall relocation, the biological monitoring shall:
(A) Include the current discharge site until such discharge ceases; and
(B) Provide baseline data at the relocation site to demonstrate the impact of the discharge and to provide the basis for demonstrating that requirements of § 125.62(c) will be met.
(c)
(1) Provide adequate data for evaluating compliance with water quality standards or water quality criteria, as applicable under § 125.62(a)(1);
(2) Measure the presence of toxic pollutants which have been identified or reasonably may be expected to be present in the discharge.
(d)
(2) The permit shall require the collection of data on a frequency specified in the permit to provide adequate data for evaluating compliance with the percent removal efficiency requirements under § 125.60.
(a) No modified discharge may result in any additional pollution control requirements on any other point or nonpoint source.
(b) The applicant shall obtain a determination from the State or interstate agency(s) having authority to establish wasteload allocations indicating whether the applicant's discharge will result in an additional treatment pollution control, or other requirement on any other point or nonpoint sources. The State determination shall include a discussion of the basis for its conclusion.
(a)
(2) The requirements of this section apply in addition to any applicable requirements of 40 CFR part 403, and do not waive or substitute for the part 403 requirements in any way.
(b)
(i) Has an applicable pretreatment requirement in effect in accordance with paragraph (c) of this section; or
(ii) Has in effect a program that achieves secondary removal equivalency in accordance with paragraph (d) of this section.
(2) Each applicant shall demonstrate that industrial sources introducing waste into the applicant's treatment works are in compliance with all applicable pretreatment requirements, including numerical standards set by local limits, and that it will enforce those requirements.
(c)
(i) As to a toxic pollutant introduced into the applicant's treatment works by an industrial discharger for which there is no applicable categorical pretreatment standard for the toxic pollutant, a local limit or limits on the toxic pollutant as necessary to satisfy the requirements of 40 CFR part 403; and
(ii) As to a toxic pollutant introduced into the applicant's treatment works by an industrial discharger that is subject to a categorical pretreatment standard for the toxic pollutant, the categorical standard and a local limit or limits as necessary to satisfy the requirements of 40 CFR part 403;
(iii) As to a toxic pollutant introduced into the applicant's treatment works by an industrial discharger for which there is no applicable categorical pretreatment standard for the toxic pollutant, and the 40 CFR part 403 analysis on the toxic pollutant shows that no local limit is necessary, the applicant shall demonstrate to EPA on an annual basis during the term of the permit through continued monitoring and appropriate technical review that a local limit is not necessary, and, where appropriate, require industrial management practices plans and other pollution prevention activities to reduce or control the discharge of each such pollutant by industrial dischargers to the POTW. If such monitoring and technical review of data indicate that a local limit is needed, the POTW shall establish and implement a local limit.
(2) Any local limits developed to meet the requirements of paragraphs (b)(1)(i) and (c)(1) of this section shall be:
(i) Consistent with all applicable requirements of 40 CFR part 403 and
(ii) Subject to approval by the Administrator as part of the 301(h) application review. The Administrator may require such local limits to be revised as necessary to meet the requirements of this section or 40 CFR part 403.
(d)
(a)
(2) Unless required by the State, this requirement shall not apply to any small section 301(h) applicant which certifies that there are no known or suspected sources of toxic pollutants or pesticides and documents the certification with an industrial user survey as described by 40 CFR 403.8(f)(2).
(b)
(c)
(2) This requirement shall not apply to any applicant which has no known or suspected industrial sources of toxic pollutants or pesticides and so certifies to the Administrator.
(3) The pretreatment program submitted by the applicant under this section shall be subject to revision as required by the Administrator prior to issuing or renewing any section 301(h) modified permit and during the term of any such permit.
(4) Implementation of all existing pretreatment requirements and authorities must be maintained through the period of development of any additional pretreatment requirements that may be necessary to comply with the requirements of this subpart.
(d)
(2) The applicant shall also develop and implement additional nonindustrial source control programs on the earliest possible schedule. This requirement shall not apply to a small applicant which certifies that there are no known or suspected water quality, sediment accumulation, or biological problems related to toxic pollutants or pesticides in its discharge.
(3) The applicant's nonindustrial source control programs under paragraph (d)(2) of this section shall include the following schedules which are to be implemented no later than 18 months after issuance of a section 301(h) modified permit:
(i) A schedule of activities for identifying nonindustrial sources of toxic pollutants and pesticides; and
(ii) A schedule for the development and implementation of control programs, to the extent practicable, for nonindustrial sources of toxic pollutants and pesticides.
(4) Each proposed nonindustrial source control program and/or schedule submitted by the applicant under this section shall be subject to revision as determined by the Administrator prior to issuing or renewing any section 301(h) modified permit and during the term of any such permit.
(a) No modified discharge may result in any new or substantially increased discharges of the pollutant to which the modification applies above the discharge specified in the section 301(h) modified permit.
(b) Where pollutant discharges are attributable in part to combined sewer overflows, the applicant shall minimize
(c) The applicant shall provide projections of effluent volume and mass loadings for any pollutants to which the modification applies in 5-year increments for the design life of its facility.
Each section 301(h) modified permit issued shall contain, in addition to all applicable terms and conditions required by 40 CFR part 122, the following:
(a) Effluent limitations and mass loadings which will assure compliance with the requirements of this subpart;
(b) A schedule or schedules of compliance for:
(1) Pretreatment program development required by § 125.66(c);
(2) Nonindustrial toxics control program required by § 125.66(d); and
(3) Control of combined sewer overflows required by § 125.67.
(c) Monitoring program requirements that include:
(1) Biomonitoring requirements of § 125.63(b);
(2) Water quality requirements of § 125.63(c);
(3) Effluent monitoring requirements of §§ 125.60(b), 125.62(c) and (d), and 125.63(d).
(d) Reporting requirements that include the results of the monitoring programs required by paragraph (c) of this section at such frequency as prescribed in the approved monitoring program.
OMB Control Number 2040-0088 Expires on 2/28/96 Public reporting burden for this collection of information is estimated to average 1,295 - 19,552 hours per response, for small and large applicants, respectively. The reporting burden includes time for reviewing instructions, gathering data, including monitoring and toxics control activities, and completing and reviewing the questionnaire. Send comments regarding the burden estimate or any other aspect of this collection, including suggestions for reducing the burden, to Chief, Information Policy Branch, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave., NW. (2136), Washington, DC 20460 and Office of Management and Budget, Office of Information and Regulatory Affairs, Attn: Desk Officer for EPA, Washington, DC 20503.
1. This questionnaire is to be submitted by both small and large applicants for modification of secondary treatment requirements under section 301(h) of the Clean Water Act (CWA). A small applicant is defined as a POTW that has a contributing population to its wastewater treatment facility of less than 50,000 and a projected average dry weather flow of less than 5.0 million gallons per day (mgd, 0.22 cubic meters/sec) [40 CFR 125.58(c)]. A large applicant is defined as a POTW that has a population contributing to its wastewater treatment facility of at least 50,000 or a projected average dry weather flow of its discharge of at least 5.0 million gallons per day (mgd, 0.22 cubic meters/sec) [40 CFR 125.58(c)]. The questionnaire is in two sections, a general information and basic requirements section (part II) and a technical evaluation section (part III). Satisfactory completion by small and large dischargers of the appropriate questions of this questionnaire is necessary to enable EPA to determine whether the applicant's modified discharge meets the criteria of section 301(h) and EPA regulations (40 CFR part 125, subpart G).
2. Most small applicants should be able to complete the questionnaire using available information. However, small POTWs with low initial dilution discharging into shallow waters or waters with poor dispersion and transport characteristics, discharging near distinctive and susceptible biological habitats, or discharging substantial quantities of toxics should anticipate the need to collect additional information and/or conduct additional analyses to demonstrate compliance with section 301(h) criteria. If there are questions in this regard, applicants should contact the appropriate EPA Regional Office for guidance.
3. Guidance for responding to this questionnaire is provided by the newly amended section 301(h) technical support document. Where available information is incomplete and the applicant needs to collect additional data during the period it is preparing the application or a letter of intent, EPA encourages the applicant to consult with EPA prior to data collection and submission. Such consultation, particularly if the applicant provides a project plan, will help ensure that the proper data are gathered in the most efficient matter.
4. The notation (L) means large applicants must respond to the question, and (S) means small applicants must respond.
1. (L,S) On which of the following are you basing your application: a current discharge, improved discharge, or altered discharge, as defined in 40 CFR 125.58? [40 CFR 125.59(a)]
2. (L,S) Description of the Treatment/Outfall System [40 CFR 125.62(a) and 125.62(e)]
a. Provide detailed descriptions and diagrams of the treatment system and outfall configuration which you propose to satisfy the requirements of section 301(h) and 40 CFR part 125, subpart G. What is the total discharge design flow upon which this application is based?
b. Provide a map showing the geographic location of proposed outfall(s) (i.e., discharge). What is the latitude and longitude of the proposed outfall(s)?
c. For a modification based on an improved or altered discharge, provide a description and diagram of your current treatment system and outfall configuration. Include the current outfall's latitude and longitude, if different from the proposed outfall.
3. (L,S) Primary or equivalent treatment requirements [40 CFR 125.60]
a. Provide data to demonstrate that your effluent meets at least primary or equivalent treatment requirements as defined in 40 CFR 125.58(r) [40 CFR 125.60]
b. If your effluent does not meet the primary or equivalent treatment requirements, when do you plan to meet them? Provide a detailed schedule, including design, construction, start-up and full operation, with your application. This requirement must be met by the effective date of the new section 301(h) modified permit.
4. (L,S) Effluent Limitations and Characteristics [40 CFR 125.61(b) and 125.62(e)(2)]
a. Identify the final effluent limitations for five-day biochemical oxygen demand (BOD
b. Provide data on the following effluent characteristics for your current discharge as well as for the modified discharge if different from the current discharge:
BOD
Suspended solids (mg/L) for the following plant flows:
Toxic pollutants and pesticides (ug/L):
pH:
Dissolved oxygen (mg/L, prior to chlorination) for the following plant flows:
Immediate dissolved oxygen demand (mg/L).
5. (L,S) Effluent Volume and Mass Emissions [40 CFR 125.62(e)(2) and 125.67]
a. Provide detailed analyses showing projections of effluent volume (annual average, m
b. Provide projections for the end of your five-year permit term for 1) the treatment facility contributing population and 2) the average daily total discharge flow for the maximum month of the dry weather season.
6. (L,S) Average Daily Industrial Flow (m
7. (L,S) Combined Sewer Overflows [40 CFR 125.67(b)]
a. Does (will) your treatment and collection system include combined sewer overflows?
b. If yes, provide a description of your plan for minimizing combined sewer overflows to the receiving water.
8. (L,S) Outfall/Diffuser Design. Provide the following data for your current discharge as well as for the modified discharge, if different from the current discharge: [40 CFR 125.62(a)(1)]
1. (L,S) Are you applying for a modification based on a discharge to the ocean [40 CFR 125.58(n)] or to a saline estuary [40 CFR 125.58(v)]? [40 CFR 125.59(a)].
2. (L,S) Is your current discharge or modified discharge to stressed waters as defined in 40 CFR 125.58(z)? If yes, what are the pollution sources contributing to the stress? [40 CFR 125.59(b)(4) and 125.62(f)].
3. (L,S) Provide a description and data on the seasonal circulation patterns in the vicinity of your current and modified discharge(s). [40 CFR 125.62(a)].
4. (L) Oceanographic conditions in the vicinity of the current and proposed modified discharge(s). Provide data on the following: [40 CFR 125.62(a)].
5. (L,S) Do the receiving waters for your discharge contain significant amounts of effluent previously discharged from the treatment works for which you are applying for a section 301(h) modified permit? [40 CFR 125.57(a)(9)]
6. Ambient water quality conditions during the period(s) of maximum stratification: at the zone of initial dilution (ZID) boundary, at other areas of potential impact, and at control stations. [40 CFR 125.62(a)]
a. (L) Provide profiles (with depth) on the following for the current discharge location and for the modified discharge location, if different from the current discharge:
b. (S) Provide available data on the following in the vicinity of the current discharge location and for the modified discharge location, if different from the current discharge: [40 CFR 125.61(b)(1)]
c. (L,S)Are there other periods when receiving water quality conditions may be more critical than the period(s) of maximum stratification? If so, describe these and other critical periods and data requested in 6.a. for the other critical period(s). [40 CFR 125.62(a)(1)].
7. (L) Provide data on steady state sediment dissolved oxygen demand and dissolved oxygen demand due to resuspension of sediments in the vicinity of your current and modified discharge(s) (mg/L/day).
1. (L) Provide a detailed description of representative biological communities (e.g., plankton, macrobenthos, demersal fish, etc.) in the vicinity of your current and modified discharge(s): within the ZID, at the ZID boundary, at other areas of potential discharge-related impact, and at reference (control) sites. Community characteristics to be described shall include (but not be limited to) species composition; abundance; dominance and diversity; spatial/temporal distribution; growth and reproduction; disease frequency; trophic structure and productivity patterns; presence of opportunistic species; bioaccumulation of toxic materials; and the occurrence of mass mortalities.
2. (L,S)a. Are distinctive habitats of limited distribution (such as kelp beds or coral reefs) located in areas potentially affected by the modified discharge? [40 CFR 125.62(c)]
b. If yes, provide information on type, extent, and location of habitats.
3. (L,S)a. Are commercial or recreational fisheries located in areas potentially affected by the discharge? [40 CFR 125.62 (c) and (d)]
b. If yes, provide information on types, location, and value of fisheries.
1. (L,S) Are there water quality standards applicable to the following pollutants for which a modification is requested:
2. (L,S) If yes, what is the water use classification for your discharge area? What are the applicable standards for your discharge area for each of the parameters for which a modification is requested? Provide a copy of all applicable water quality standards or a citation to where they can be found.
3. (L,S) Will the modified discharge: [40 CFR 125.59(b)(3)].
4. (L,S) Are you aware of any State or Federal laws or regulations (other than the Clean Water Act or the three statutes identified in item 3 above) or an Executive Order which is applicable to your discharge? If yes, provide sufficient information to demonstrate that your modified discharge will comply with such law(s), regulation(s), or order(s). [40 CFR 125.59 (b)(3)].
1. (L,S) What is the critical initial dilution for your current and modified discharge(s) during (1) the period(s) of maximum stratification? and (2) any other critical period(s) of discharge volume/composition, water quality, biological seasons, or oceanographic conditions?
2. (L,S) What are the dimensions of the zone of initial dilution for your modified discharge(s)?
3. (L) What are the effects of ambient currents and stratification on dispersion and transport of the discharge plume/wastefield?
4. (S) Will there be significant sedimentation of suspended solids in the vicinity of the modified discharge?
5. (L) Sedimentation of suspended solids
a. What fraction of the modified discharge's suspended solids will accumulate within the vicinity of the modified discharge?
b. What are the calculated area(s) and rate(s) of sediment accumulation within the vicinity of the modified discharge(s) (g/m
c. What is the fate of settleable solids transported beyond the calculated sediment accumulation area?
1. (L,S) What is the concentration of dissolved oxygen immediately following initial dilution for the period(s) of maximum stratification and any other critical period(s) of discharge volume/composition, water quality, biological seasons, or oceanographic conditions?
2. (L,S) What is the farfield dissolved oxygen depression and resulting concentration due to BOD exertion of the wastefield during the period(s) of maximum stratification and any other critical period(s)?
3. (L) What are the dissolved oxygen depressions and resulting concentrations near the bottom due to steady sediment demand and resuspension of sediments?
4. (L,S) What is the increase in receiving water suspended solids concentration immediately following initial dilution of the modified discharge(s)?
5. (L) What is the change in receiving water pH immediately following initial dilution of the modified discharge(s)?
6. (L,S) Does (will) the modified discharge comply with applicable water quality standards for:
7. (L,S) Provide data to demonstrate that all applicable State water quality standards, and all applicable water quality criteria established under Section 304(a)(1) of the Clean Water Act for which there are no directly corresponding numerical applicable water quality standards approved by EPA, are met at and beyond the boundary of the ZID under critical environmental and treatment plant conditions in the waters surrounding or adjacent to the point at which your effluent is discharged. [40 CFR 125.62(a)(1)]
8. (L,S) Provide the determination required by 40 CFR 125.61(b)(2) for compliance with all applicable provisions of State law, including water quality standards or, if the determination has not yet been received, a copy of a
1. (L,S) Is there a planned or existing public water supply (desalinization facility) intake in the vicinity of the current or modified discharge?
2. (L,S) If yes:
a. What is the location of the intake(s) (latitude and longitude)?
b. Will the modified discharge(s) prevent the use of intake(s) for public water supply?
c. Will the modified discharge(s) cause increased treatment requirements for public water supply(s) to meet local, State, and EPA drinking water standards?
1. (L,S) Does (will) a balanced indigenous population of shellfish, fish, and wildlife exist:
2. (L,S) Have distinctive habitats of limited distribution been impacted adversely by the current discharge and will such habitats be impacted adversely by the modified discharge?
3. (L,S) Have commercial or recreational fisheries been impacted adversely by the current discharge (e.g., warnings, restrictions, closures, or mass mortalities) or will they be impacted adversely by the modified discharge?
4. (L,S*) Does the current or modified discharge cause the following within or beyond the ZID: [40 CFR 125.62(c)(3)]
5. (L,S) For discharges into saline estuarine waters: [40 CFR 125.62 (c)(4)]
No section (h) modified permit shall be issued where the discharge enters into stressed saline estuarine waters as stated in 40 CFR 125.59(b)(4).
6. (L,S) For improved discharges, will the proposed improved discharge(s) comply with the requirements of 40 CFR 125.62(a) through 125.62(d)? [40 CFR 125.62(e)]
7. (L,S) For altered discharge(s), will the altered discharge(s) comply with the requirements of 40 CFR 125.62(a) through 125.62(d)? [40 CFR 125.62(e)]
8. (L,S) If your current discharge is to stressed ocean waters, does or will your current or modified discharge: [40 CFR 125.62(f)]
1. (L,S) Describe the existing or potential recreational activities likely to be affected by the modified discharge(s) beyond the zone of initial dilution.
2. (L,S) What are the existing and potential impacts of the modified discharge(s) on recreational activities? Your answer should include, but not be limited to, a discussion of fecal coliform bacteria.
3. (L,S) Are there any Federal, State, or local restrictions on recreational activities in the vicinity of the modified discharge(s)? If yes, describe the restrictions and provide citations to available references.
4. (L,S) If recreational restrictions exist, would such restrictions be lifted or modified if you were discharging a secondary treatment effluent?
1. (L,S) Describe the biological, water quality, and effluent monitoring programs which you propose to meet the criteria of 40 CFR 125.63. Only those scientific investigations that are necessary to study the effects of the proposed discharge should be included in the scope of the 301(h) monitoring program [40 CFR 125.63(a)(1)(i)(B)].
2. (L,S) Describe the sampling techniques, schedules, and locations, analytical techniques, quality control and verification procedures to be used.
3. (L,S) Describe the personnel and financial resources available to implement the monitoring programs upon issuance of a
1. (L,S) Does (will) your modified discharge(s) cause additional treatment or control requirements for any other point or nonpoint pollution source(s)?
2. (L,S) Provide the determination required by 40 CFR 125.64(b) or, if the determination has not yet been received, a copy of a letter to the appropriate agency(s) requesting the required determination.
1. a. (L,S) Do you have any known or suspected industrial sources of toxic pollutants or pesticides?
b. (L,S) If no, provide the certification required by 40 CFR 125.66(a)(2) for small dischargers, and required by 40 CFR 125.66(c)(2) for large dischargers.
c. (L,S*) Provide the results of wet and dry weather effluent analyses for toxic pollutants and pesticides as required by 40 CFR 125.66(a)(1). (* to the extent practicable)
d. (L,S*) Provide an analysis of known or suspected industrial sources of toxic pollutants and pesticides identified in (1)(c) above as required by 40 CFR 125.66(b). (* to the extent practicable)
2. (S)a. Are there any known or suspected water quality, sediment accumulation, or biological problems related to toxic pollutants or pesticides from your modified discharge(s)?
(S)b. If no, provide the certification required by 40 CFR 125.66(d)(2) together with available supporting data.
(S)c. If yes, provide a schedule for development and implementation of nonindustrial toxics control programs to meet the requirements of 40 CFR 126.66(d)(3).
(L)d. Provide a schedule for development and implementation of a nonindustrial toxics control program to meet the requirements of 40 CFR 125.66(d)(3).
3. (L,S) Describe the public education program you propose to minimize the entrance of nonindustrial toxic pollutants and pesticides into your treatment system. [40 CFR 125.66(d)(1)]
4. (L,S) Do you have an approved industrial pretreatment program?
a. If yes, provide the date of EPA approval.
b. If no, and if required by 40 CFR part 403 to have an industrial pretreatment program, provide a proposed schedule for development and implementation of your industrial pretreatment program to meet the requirements of 40 CFR part 403.
5. Urban area pretreatment requirement [40 CFR 125.65] Dischargers serving a population of 50,000 or more must respond.
a. Provide data on all toxic pollutants introduced into the treatment works from industrial sources (categorical and noncategorical).
b. Note whether applicable pretreatment requirements are in effect for each toxic pollutant. Are the industrial sources introducing such toxic pollutants in compliance with all of their pretreatment requirements? Are these pretreatment requirements being enforced? [40 CFR 125.65(b)(2)]
c. If applicable pretreatment requirements do not exist for each toxic pollutant in the POTW effluent introduced by industrial sources,
Section 316(a) of the Act provides that:
“With respect to any point source otherwise subject to the provisions of section 301 or section 306 of this Act, whenever the owner or operator of any such source, after opportunity for public hearing, can demonstrate to the satisfaction of the Administrator (or, if appropriate, the State) that any effluent limitation proposed for the control of the thermal component of any discharge from such source will require effluent limitations more stringent than necessary to assure the projection [sic] and propagation of a balanced, indigenous population of shellfish, fish and wildlife in and on the body of water into which the discharge is to be made, the Administrator (or, if appropriate, the State) may impose an effluent limitation under such sections on such plant, with respect to the thermal component of such discharge (taking into account the interaction of such thermal component with other pollutants), that will assure the protection and propagation of a balanced indigenous population of shellfish, fish and wildlife in and on that body of water.”
For the purpose of this subpart:
(a)
(b)
(c) The term
(a) Any initial application for a section 316(a) variance shall include the following early screening information:
(1) A description of the alternative effluent limitation requested;
(2) A general description of the method by which the discharger proposes to demonstrate that the otherwise applicable thermal discharge effluent limitations are more stringent than necessary;
(3) A general description of the type of data, studies, experiments and other information which the discharger intends to submit for the demonstration; and
(4) Such data and information as may be available to assist the Director in selecting the appropriate representative important species.
(b) After submitting the early screening information under paragraph (a) of this section, the discharger shall consult with the Director at the earliest practicable time (but not later than 30 days after the application is filed) to discuss the discharger's early screening information. Within 60 days after the application is filed, the discharger shall submit for the Director's approval a detailed plan of study which the discharger will undertake to support its section 316(a) demonstration. The discharger shall specify the nature and extent of the following type of information to be included in the plan of study: Biological, hydrographical and meteorological data; physical monitoring data; engineering or diffusion models; laboratory studies; representative important species; and other relevant information. In selecting representative important species, special consideration shall be given to species mentioned in applicable water quality standards. After the discharger submits its detailed plan of study, the Director shall either approve the plan or specify any necessary revisions to the plan. The discharger shall provide any additional information or studies which the Director subsequently determines necessary to support the demonstration, including such studies or inspections as may be necessary to select representative important species. The discharger may provide any additional information or studies which the discharger feels are appropriate to support the demonstration.
(c) Any application for the renewal of a section 316(a) variance shall include only such information described in paragraphs (a) and (b) of this section as the Director requests within 60 days after receipt of the permit application.
(d) The Director shall promptly notify the Secretary of Commerce and the Secretary of the Interior, and any affected State of the filing of the request and shall consider any timely recommendations they submit.
(e) In making the demonstration the discharger shall consider any information or guidance published by EPA to assist in making such demonstrations.
(f) If an applicant desires a ruling on a section 316(a) application before the ruling on any other necessary permit terms and conditions, (as provided by § 124.65), it shall so request upon filing its application under paragraph (a) of this section. This request shall be granted or denied at the discretion of the Director.
At the expiration of the permit, any discharger holding a section 316(a) variance should be prepared to support the continuation of the variance with studies based on the discharger's actual operation experience.
(a) Thermal discharge effluent limitations or standards established in permits may be less stringent than those required by applicable standards and limitations if the discharger demonstrates to the satisfaction of the director that such effluent limitations are more stringent than necessary to assure the protection and propagation of a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge is made. This demonstration must show that the alternative effluent limitation desired by the discharger, considering the cumulative impact of its thermal discharge together with all other significant impacts on the species affected, will assure the protection and propagation of a balanced indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge is to be made.
(b) In determining whether or not the protection and propagation of the affected species will be assured, the Director may consider any information contained or referenced in any applicable thermal water quality criteria and thermal water quality information published by the Administrator under section 304(a) of the Act, or any other information he deems relevant.
(c) (1) Existing dischargers may base their demonstration upon the absence of prior appreciable harm in lieu of predictive studies. Any such demonstrations shall show:
(i) That no appreciable harm has resulted from the normal component of the discharge (taking into account the interaction of such thermal component with other pollutants and the additive effect of other thermal sources to a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge has been made; or
(ii) That despite the occurrence of such previous harm, the desired alternative effluent limitations (or appropriate modifications thereof) will nevertheless assure the protection and propagation of a balanced, indigenous community of shellfish, fish and wildlife in and on the body of water into which the discharge is made.
(2) In determining whether or not prior appreciable harm has occurred, the Director shall consider the length of time in which the applicant has been discharging and the nature of the discharge.
(a) This subpart establishes requirements that apply to the location, design, construction, and capacity of cooling water intake structures at new facilities. The purpose of these requirements is to establish the best technology available for minimizing adverse environmental impact associated with the use of cooling water intake
(b) This subpart implements section 316(b) of the CWA for new facilities. Section 316(b) of the CWA provides that any standard established pursuant to sections 301 or 306 of the CWA and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.
(c) New facilities that do not meet the threshold requirements regarding amount of water withdrawn or percentage of water withdrawn for cooling water purposes in § 125.81(a) must meet requirements determined on a case-by-case, best professional judgement (BPJ) basis.
(d) Nothing in this subpart shall be construed to preclude or deny the right of any State or political subdivision of a State or any interstate agency under section 510 of the CWA to adopt or enforce any requirement with respect to control or abatement of pollution that is more stringent than those required by Federal law.
(a) This subpart applies to a new facility if it:
(1) Is a point source that uses or proposes to use a cooling water intake structure;
(2) Has at least one cooling water intake structure that uses at least 25 percent of the water it withdraws for cooling purposes as specified in paragraph (c) of this section; and
(3) Has a design intake flow greater than two (2) million gallons per day (MGD).
(b) Use of a cooling water intake structure includes obtaining cooling water by any sort of contract or arrangement with an independent supplier (or multiple suppliers) of cooling water if the supplier or suppliers withdraw(s) water from waters of the United States. Use of cooling water does not include obtaining cooling water from a public water system or the use of treated effluent that otherwise would be discharged to a water of the U.S. This provision is intended to prevent circumvention of these requirements by creating arrangements to receive cooling water from an entity that is not itself a point source.
(c) The threshold requirement that at least 25 percent of water withdrawn be used for cooling purposes must be measured on an average monthly basis. A new facility meets the 25 percent cooling water threshold if, based on the new facility's design, any monthly average over a year for the percentage of cooling water withdrawn is expected to equal or exceed 25 percent of the total water withdrawn.
(d) This subpart does not apply to facilities that employ cooling water intake structures in the offshore and coastal subcategories of the oil and gas extraction point source category as defined under 40 CFR 435.10 and 40 CFR 435.40.
You must comply with this subpart when an NPDES permit containing requirements consistent with this subpart is issued to you.
The following special definitions apply to this subpart:
(1) Examples of “new facilities” include, but are not limited to: the following scenarios:
(i) A new facility is constructed on a site that has never been used for industrial or commercial activity. It has a new cooling water intake structure for its own use.
(ii) A facility is demolished and another facility is constructed in its place. The newly-constructed facility uses the original facility's cooling water intake structure, but modifies it to increase the design capacity to accommodate the intake of additional cooling water.
(iii) A facility is constructed on the same property as an existing facility, but is a separate and independent industrial operation. The cooling water intake structure used by the original facility is modified by constructing a new intake bay for the use of the newly constructed facility or is otherwise modified to increase the intake capacity for the new facility.
(2) Examples of facilities that would not be considered a “new facility” include, but are not limited to, the following scenarios:
(i) A facility in commercial or industrial operation is modified and either continues to use its original cooling water intake structure or uses a new or modified cooling water intake structure.
(ii) A facility has an existing intake structure. Another facility (a separate and independent industrial operation), is constructed on the same property and connects to the facility's cooling water intake structure behind the intake pumps, and the design capacity of the cooling water intake structure has not been increased. This facility would not be considered a “new facility” even if routine maintenance or repairs that do not increase the design capacity were performed on the intake structure.
(a)(1) The owner or operator of a new facility must comply with either:
(i) Track I in paragraph (b) or (c) of this section; or
(ii) Track II in paragraph (d) of this section.
(2) In addition to meeting the requirements in paragraph (b), (c), or (d) of this section, the owner or operator of a new facility may be required to comply with paragraph (e) of this section.
(b)
(1) You must reduce your intake flow, at a minimum, to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system;
(2) You must design and construct each cooling water intake structure at
(3) You must design and construct your cooling water intake structure such that the total design intake flow from all cooling water intake structures at your facility meets the following requirements:
(i) For cooling water intake structures located in a freshwater river or stream, the total design intake flow must be no greater than five (5) percent of the source water annual mean flow;
(ii) For cooling water intake structures located in a lake or reservoir, the total design intake flow must not disrupt the natural thermal stratification or turnover pattern (where present) of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency(ies);
(iii) For cooling water intake structures located in an estuary or tidal river, the total design intake flow over one tidal cycle of ebb and flow must be no greater than one (1) percent of the volume of the water column within the area centered about the opening of the intake with a diameter defined by the distance of one tidal excursion at the mean low water level;
(4) You must select and implement design and construction technologies or operational measures for minimizing impingement mortality of fish and shellfish if:
(i) There are threatened or endangered or otherwise protected federal, state, or tribal species, or critical habitat for these species, within the hydraulic zone of influence of the cooling water intake structure; or
(ii) Based on information submitted by any fishery management agency(ies) or other relevant information, there are migratory and/or sport or commercial species of impingement concern to the Director that pass through the hydraulic zone of influence of the cooling water intake structure; or
(iii) It is determined by the Director, based on information submitted by any fishery management agency(ies) or other relevant information, that the proposed facility, after meeting the technology-based performance requirements in paragraphs (b)(1), (2), and (3) of this section, would still contribute unacceptable stress to the protected species, critical habitat of those species, or species of concern;
(5) You must select and implement design and construction technologies or operational measures for minimizing entrainment of entrainable life stages of fish and shellfish if:
(i) There are threatened or endangered or otherwise protected federal, state, or tribal species, or critical habitat for these species, within the hydraulic zone of influence of the cooling water intake structure; or
(ii) Based on information submitted by any fishery management agency(ies) or other relevant information, there are or would be undesirable cumulative stressors affecting entrainable life stages of species of concern to the Director and the Director determines that the proposed facility, after meeting the technology-based performance requirements in paragraphs (b)(1), (2), and (3) of this section, would still contribute unacceptable stress to the protected species , critical habitat of those species, or these species of concern;
(6) You must submit the application information required in 40 CFR 122.21(r) and § 125.86(b);
(7) You must implement the monitoring requirements specified in § 125.87;
(8) You must implement the record-keeping requirements specified in § 125.88.
(c)
(1) You must design and construct each cooling water intake structure at your facility to a maximum through-screen design intake velocity of 0.5 ft/s;
(2) You must design and construct your cooling water intake structure such that the total design intake flow from all cooling water intake structures at your facility meets the following requirements:
(i) For cooling water intake structures located in a freshwater river or stream, the total design intake flow
(ii) For cooling water intake structures located in a lake or reservoir, the total design intake flow must not disrupt the natural thermal stratification or turnover pattern (where present) of the source water except in cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish by any fishery management agency(ies);
(iii) For cooling water intake structures located in an estuary or tidal river, the total design intake flow over one tidal cycle of ebb and flow must be no greater than one (1) percent of the volume of the water column within the area centered about the opening of the intake with a diameter defined by the distance of one tidal excursion at the mean low water level;
(3) You must select and implement design and construction technologies or operational measures for minimizing impingement mortality of fish and shellfish if:
(i) There are threatened or endangered or otherwise protected federal, state, or tribal species, or critical habitat for these species, within the hydraulic zone of influence of the cooling water intake structure; or
(ii) Based on information submitted by any fishery management agency(ies) or other relevant information, there are migratory and/or sport or commercial species of impingement concern to the Director that pass through the hydraulic zone of influence of the cooling water intake structure; or
(iii) It is determined by the Director, based on information submitted by any fishery management agency(ies) or other relevant information, that the proposed facility, after meeting the technology-based performance requirements in paragraphs (c)(1) and (2) of this section, would still contribute unacceptable stress to the protected species, critical habitat of those species, or species of concern;
(4) You must select and implement design and construction technologies or operational measures for minimizing entrainment of entrainable life stages of fish and shellfish;
(5) You must submit the application information required in 40 CFR 122.21(r) and § 125.86(b)(2), (3), and (4);
(6) You must implement the monitoring requirements specified in § 125.87;
(7) You must implement the recordkeeping requirements specified in § 125.88.
(d)
(1) You must demonstrate to the Director that the technologies employed will reduce the level of adverse environmental impact from your cooling water intake structures to a comparable level to that which you would achieve were you to implement the requirements of paragraphs (b)(1) and (2) of this section. This demonstration must include a showing that the impacts to fish and shellfish, including important forage and predator species, within the watershed will be comparable to those which would result if you were to implement the requirements of paragraphs (b)(1) and (2) of this section. This showing may include consideration of impacts other than impingement mortality and entrainment, including measures that will result in increases in fish and shellfish, but it must demonstrate comparable performance for species that the Director identifies as species of concern. In identifying such species, the Director may consider information provided by any fishery management agency(ies) along with data and information from other sources.
(2) You must design and construct your cooling water intake structure such that the total design intake flow from all cooling water intake structures at your facility meet the following requirements:
(i) For cooling water intake structures located in a freshwater river or stream, the total design intake flow must be no greater than five (5) percent of the source water annual mean flow;
(ii) For cooling water intake structures located in a lake or reservoir, the total design intake flow must not disrupt the natural thermal stratification or turnover pattern (where present) of the source water except in cases where
(iii) For cooling water intake structures located in an estuary or tidal river, the total design intake flow over one tidal cycle of ebb and flow must be no greater than one (1) percent of the volume of the water column within the area centered about the opening of the intake with a diameter defined by the distance of one tidal excursion at the mean low water level.
(3) You must submit the application information required in 40 CFR 122.21(r) and § 125.86(c).
(4) You must implement the monitoring requirements specified in § 125.87.
(5) You must implement the record-keeping requirements specified in § 125.88.
(e) You must comply with any more stringent requirements relating to the location, design, construction, and capacity of a cooling water intake structure or monitoring requirements at a new facility that the Director deems are reasonably necessary to comply with any provision of state law, including compliance with applicable state water quality standards (including designated uses, criteria, and antidegradation requirements).
(a) Any interested person may request that alternative requirements less stringent than those specified in § 125.84(a) through (e) be imposed in the permit. The Director may establish alternative requirements less stringent than the requirements of § 125.84(a) through (e) only if:
(1) There is an applicable requirement under § 125.84(a) through (e);
(2) The Director determines that data specific to the facility indicate that compliance with the requirement at issue would result in compliance costs wholly out of proportion to the costs EPA considered in establishing the requirement at issue or would result in significant adverse impacts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets;
(3) The alternative requirement requested is no less stringent than justified by the wholly out of proportion cost or the significant adverse impacts on local air quality, significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on local energy markets; and
(4) The alternative requirement will ensure compliance with other applicable provisions of the Clean Water Act and any applicable requirement of state law.
(b) The burden is on the person requesting the alternative requirement to demonstrate that alternative requirements should be authorized.
(a)(1) As an owner or operator of a new facility, you must submit to the Director a statement that you intend to comply with either:
(i) The Track I requirements for new facilities that withdraw equal to or greater than 10 MGD in § 125.84(b);
(ii) The Track I requirements for new facilities that withdraw equal to or greater than 2 MGD and less than 10 MGD in § 125.84(c);
(iii) The requirements for Track II in § 125.84 (d).
(2) You must also submit the application information required by 40 CFR 122.21(r) and the information required in either paragraph (b) of this section for Track I or paragraph (c) of this section for Track II when you apply for a new or reissued NPDES permit in accordance with 40 CFR 122.21.
(b)
(1)
(i) A narrative description of your system that has been designed to reduce your intake flow to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system and any engineering calculations, including documentation demonstrating that your make-up and blowdown flows have been minimized; and
(ii) If the flow reduction requirement is met entirely, or in part, by reusing or recycling water withdrawn for cooling purposes in subsequent industrial processes, you must provide documentation that the amount of cooling water that is not reused or recycled has been minimized.
(2)
(i) A narrative description of the design, structure, equipment, and operation used to meet the velocity requirement; and
(ii) Design calculations showing that the velocity requirement will be met at minimum ambient source water surface elevations (based on best professional judgement using available hydrological data) and maximum head loss across the screens or other device.
(3)
(i) If your cooling water intake structure is located in a freshwater river or stream, you must provide the annual mean flow and any supporting documentation and engineering calculations to show that your cooling water intake structure meets the flow requirements;
(ii) If your cooling water intake structure is located in an estuary or tidal river, you must provide the mean low water tidal excursion distance and any supporting documentation and engineering calculations to show that your cooling water intake structure facility meets the flow requirements; and
(iii) If your cooling water intake structure is located in a lake or reservoir, you must provide a narrative description of the water body thermal stratification, and any supporting documentation and engineering calculations to show that the natural thermal stratification and turnover pattern will not be disrupted by the total design intake flow. In cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish you must provide supporting documentation and include a written concurrence from any fisheries management agency(ies) with responsibility for fisheries potentially affected by your cooling water intake structure(s).
(4)
(i) Information to demonstrate whether or not you meet the criteria in § 125.84(b)(4) and (b)(5), or (c)(3) and (c)(4);
(ii) Delineation of the hydraulic zone of influence for your cooling water intake structure;
(iii) New facilities required to install design and construction technologies and/or operational measures must develop a plan explaining the technologies and measures you have selected based on information collected for the Source Water Biological Baseline Characterization required by 40 CFR 122.21(r)(3). (Examples of appropriate technologies include, but are not limited to, wedgewire screens, fine mesh screens, fish handling and return systems, barrier nets, aquatic filter barrier systems, etc. Examples of appropriate operational measures include, but are not limited to, seasonal shutdowns or reductions in flow, continuous operations of screens, etc.) The
(A) A narrative description of the design and operation of the design and construction technologies, including fish-handling and return systems, that you will use to maximize the survival of those species expected to be most susceptible to impingement. Provide species-specific information that demonstrates the efficacy of the technology;
(B) A narrative description of the design and operation of the design and construction technologies that you will use to minimize entrainment of those species expected to be the most susceptible to entrainment. Provide species-specific information that demonstrates the efficacy of the technology; and
(C) Design calculations, drawings, and estimates to support the descriptions provided in paragraphs (b)(4)(iii)(A) and (B) of this section.
(c)
(1)
(i) If your cooling water intake structure is located in a freshwater river or stream, you must provide the annual mean flow and any supporting documentation and engineering calculations to show that your cooling water intake structure meets the flow requirements;
(ii) If your cooling water intake structure is located in an estuary or tidal river, you must provide the mean low water tidal excursion distance and any supporting documentation and engineering calculations to show that your cooling water intake structure facility meets the flow requirements; and
(iii) If your cooling water intake structure is located in a lake or reservoir, you must provide a narrative description of the water body thermal stratification, and any supporting documentation and engineering calculations to show that the natural thermal stratification and thermal or turnover pattern will not be disrupted by the total design intake flow. In cases where the disruption is determined to be beneficial to the management of fisheries for fish and shellfish you must provide supporting documentation and include a written concurrence from any fisheries management agency(ies) with responsibility for fisheries potentially affected by your cooling water intake structure(s).
(2)
(i) You have reduced both impingement mortality and entrainment of all life stages of fish and shellfish to 90 percent or greater of the reduction that would be achieved through § 125.84(b)(1) and (2); or
(ii) If your demonstration includes consideration of impacts other than impingement mortality and entrainment, that the measures taken will maintain the fish and shellfish in the waterbody at a substantially similar level to that which would be achieved through § 125.84(b)(1) and (2); and
(iii) You must develop and submit a plan to the Director containing a proposal for how information will be collected to support the study. The plan must include:
(A) A description of the proposed and/or implemented technology(ies) to be evaluated in the Study;
(B) A list and description of any historical studies characterizing the physical and biological conditions in the vicinity of the proposed or actual intakes and their relevancy to the proposed Study. If you propose to rely on existing source water body data, it must be no more than 5 years old, you must
(C) Any public participation or consultation with Federal or State agencies undertaken in developing the plan; and
(D) A sampling plan for data that will be collected using actual field studies in the source water body. The sampling plan must document all methods and quality assurance procedures for sampling, and data analysis. The sampling and data analysis methods you propose must be appropriate for a quantitative survey and based on consideration of methods used in other studies performed in the source water body. The sampling plan must include a description of the study area (including the area of influence of the cooling water intake structure and at least 100 meters beyond); taxonomic identification of the sampled or evaluated biological assemblages (including all life stages of fish and shellfish); and sampling and data analysis methods; and
(iv) You must submit documentation of the results of the Study to the Director. Documentation of the results of the Study must include:
(A)
(
(
(
(B)
(
(
(C)
(
(
(D)
(
(
As an owner or operator of a new facility, you will be required to perform monitoring to demonstrate your compliance with the requirements specified in § 125.84.
(a)
(1)
(2)
(b)
(c)
As an owner or operator of a new facility you are required to keep records and report information and data to the Director as follows:
(a) You must keep records of all the data used to complete the permit application and show compliance with the requirements, any supplemental information developed under § 125.86, and any compliance monitoring data submitted under § 125.87, for a period of at least three (3) years from the date of permit issuance. The Director may require that these records be kept for a longer period.
(b) You must provide the following to the Director in a yearly status report:
(1) Biological monitoring records for each cooling water intake structure as required by § 125.87(a);
(2) Velocity and head loss monitoring records for each cooling water intake structure as required by § 125.87(b); and
(3) Records of visual or remote inspections as required in § 125.87(c).
(a)
(1) After receiving the initial permit application from the owner or operator of a new facility, the Director must determine applicable standards in § 125.84 to apply to the new facility. In addition, the Director must review materials to determine compliance with the applicable standards.
(2) For each subsequent permit renewal, the Director must review the application materials and monitoring data to determine whether requirements, or additional requirements, for design and construction technologies or operational measures should be included in the permit.
(3) For Track II facilities, the Director may review the information collection proposal plan required by § 125.86(c)(2)(iii). The facility may initiate sampling and data collection activities prior to receiving comment from the Director.
(b)
(1)
(i) For a facility that chooses Track I, you must review the Design and Construction Technology Plan required in § 125.86(b)(4) to evaluate the suitability and feasibility of the technology proposed to minimize impingement mortality and entrainment of all life stages of fish and shellfish. In the first permit issued, you must put a condition requiring the facility to reduce impingement mortality and entrainment commensurate with the implementation of the technologies in the permit. Under subsequent permits, the Director must review the performance of the technologies implemented and require additional or different design and construction technologies, if needed to minimize impingement mortality and entrainment of all life stages of fish and shellfish. In addition, you must consider whether more stringent conditions are reasonably necessary in accordance with § 125.84(e).
(ii) For a facility that chooses Track II, you must review the information submitted with the Comprehensive Demonstration Study information required in § 125.86(c)(2), evaluate the suitability of the proposed design and construction technologies and operational measures to determine whether they will reduce both impingement mortality and entrainment of all life stages of fish and shellfish to 90 percent or greater of the reduction that could be achieved through Track I. If you determine that restoration measures are appropriate at the new facility for consideration of impacts other than impingement mortality and entrainment, you must review the Evaluation of Proposed Restoration Measures and evaluate whether the proposed measures will maintain the fish and shellfish in the waterbody at a substantially similar level to that which would be achieved through § 125.84(b)(1) and (2). In addition, you must review the Verification Monitoring Plan in § 125.86(c)(2)(iv)(D) and require that the proposed monitoring begin at the start of operations of the cooling water intake structure and continue for a sufficient period of time to demonstrate that the technologies, operational measures and restoration measures meet the requirements in § 125.84(d)(1). Under subsequent permits, the Director must review the performance of the additional and /or different technologies or measures used and determine that they reduce the level of adverse environmental impact from the cooling water intake structures to a comparable level that the facility would achieve were it to implement the requirements of § 125.84(b)(1) and (2).
(2)
(3)
(a) This subpart establishes requirements that apply to the location, design, construction, and capacity of cooling water intake structures at existing facilities that are subject to this subpart (
(b) Existing facilities that are not subject to requirements under this or another subpart of this part must meet requirements under section 316(b) of the CWA determined by the Director on a case-by-case, best professional judgment (BPJ) basis.
(c)
(d) Nothing in this subpart shall be construed to preclude or deny the right of any State or political subdivision of a State or any interstate agency under section 510 of the CWA to adopt or enforce any requirement with respect to control or abatement of pollution that is not less stringent than those required by Federal law.
(a) An existing facility, as defined in § 125.93, is a Phase II existing facility subject to this subpart if it meets each of the following criteria:
(1) It is a point source.
(2) It uses or proposes to use cooling water intake structures with a total design intake flow of 50 million gallons per day (MGD) or more to withdraw cooling water from waters of the United States;
(3) As its primary activity, the facility both generates and transmits electric power, or generates electric power but sells it to another entity for transmission; and
(4) It uses at least 25 percent of water withdrawn exclusively for cooling purposes, measured on an average annual basis.
(b) In the case of a Phase II existing facility that is co-located with a manufacturing facility, only that portion of the combined cooling water intake flow that is used by the Phase II facility to generate electricity for sale to another entity will be considered for purposes of determining whether the 50 MGD and 25 percent criteria in paragraphs (a)(2) and (4) of this section have been exceeded.
(c) Use of a cooling water intake structure includes obtaining cooling water by any sort of contract or arrangement with one or more independent suppliers of cooling water if the supplier withdraws water from waters of the United States but is not itself a Phase II existing facility, except as provided in paragraph (d) of this section. This provision is intended to prevent circumvention of these requirements by creating arrangements to receive cooling water from an entity that is not itself a Phase II existing facility.
(d) Notwithstanding paragraph (c) of this section, obtaining cooling water from a public water system or using treated effluent as cooling water does not constitute use of a cooling water intake structure for purposes of this subpart.
In addition to the definitions provided in § 122.3 of this chapter, the following special definitions apply to this subpart:
(a)
(1)(i)You may demonstrate to the Director that you have reduced, or will reduce, your flow commensurate with a closed-cycle recirculating system. In this case, you are deemed to have met the applicable performance standards and will
(ii) You may demonstrate to the Director that you have reduced, or will reduce, your maximum through-screen design intake velocity to 0.5 ft/s or less. In this case, you are deemed to have met the impingement mortality performance standards and will not be required to demonstrate further that your facility meets the performance standards for impingement mortality specified in paragraph (b) of this section and you are not subject to the requirements in §§ 125.95, 125.96, 125.97, or 125.98 as they apply to impingement mortality. However, you are still subject to any applicable requirements for entrainment reduction and may still be subject to any more stringent requirements established under paragraph (e) of this section.
(2) You may demonstrate to the Director that your existing design and construction technologies, operational measures, and/or restoration measures meet the performance standards specified in paragraph (b) of this section and/or the restoration requirements in paragraph (c) of this section.
(3) You may demonstrate to the Director that you have selected, and will install and properly operate and maintain, design and construction technologies, operational measures, and/or restoration measures that will, in combination with any existing design and construction technologies, operational measures, and/or restoration measures, meet the performance standards specified in paragraph (b) of this section and/or the restoration requirements in paragraph (c) of this section;
(4) You may demonstrate to the Director that you have installed, or will install, and properly operate and maintain an approved design and construction technology in accordance with § 125.99(a) or (b); or
(5) You may demonstrate to the Director that you have selected, installed, and are properly operating and maintaining, or will install and properly operate and maintain design and construction technologies, operational measures, and/or restoration measures that the Director has determined to be the best technology available to minimize adverse environmental impact for your facility in accordance with paragraphs (a)(5)(i) or (ii) of this section.
(i) If the Director determines that data specific to your facility demonstrate that the costs of compliance under alternatives in paragraphs (a)(2) through (4) of this section would be significantly greater than the costs considered by the Administrator for a facility like yours in establishing the applicable performance standards in paragraph (b) of this section, the Director must make a site-specific determination of the best technology available for minimizing adverse environmental impact. This determination must be based on reliable, scientifically valid cost and performance data submitted by you and any other information that the Director deems appropriate. The Director must establish site-specific alternative requirements based on new and/or existing design and construction technologies, operational measures, and/or restoration measures that achieve an efficacy that is, in the judgment of the Director, as close as practicable to the applicable performance standards in paragraph (b) of this section, without resulting in costs that are significantly greater than the costs considered by the Administrator for a facility like yours in establishing the applicable performance standards. The Director's site-specific determination may conclude that design and construction technologies, operational measures, and/or restoration measures in addition to those already in place are not justified because of the significantly greater costs. To calculate the costs considered by the Administrator for a facility like yours in establishing the applicable performance standards you must:
(A) Determine which technology the Administrator modeled as the most appropriate compliance technology for your facility;
(B) Using the Administrator's costing equations, calculate the annualized capital and net operation and maintenance (O&M) costs for a facility with your design intake flow using this technology;
(C) Determine the annualized net revenue loss associated with net construction downtime that the Administrator modeled for your facility to install this technology;
(D) Determine the annualized pilot study costs that the Administrator modeled for your facility to test and optimize this technology;
(E) Sum the cost items in paragraphs (a)(5)(i)(B), (C), and (D) of this section; and
(F) Determine if the performance standards that form the basis of these estimates (
(ii) If the Director determines that data specific to your facility demonstrate that the costs of compliance under alternatives in paragraphs (a)(2) through (4) of this section would be significantly greater than the benefits of complying with the applicable performance standards at your facility, the Director must make a site-specific determination of best technology available for minimizing adverse environmental impact. This determination must be based on reliable, scientifically valid cost and performance data submitted by you and any other information the Director deems appropriate. The Director must establish site-specific alternative requirements based on new and/or existing design and construction technologies, operational measures, and/or restoration measures that achieve an efficacy that, in the judgment of the Director, is as close as practicable to the applicable performance standards in paragraph (b) of this section without resulting in costs that are significantly greater than the benefits at your facility. The Director's site-specific determination may conclude that design and construction technologies, operational measures, and/or restoration measures in addition to those already in place are not justified because the costs would be significantly greater than the benefits at your facility.
(b)
(2)
(i) Your facility has a capacity utilization rate of 15 percent or greater, and
(ii)(A) Your facility uses cooling water withdrawn from a tidal river, estuary, ocean, or one of the Great Lakes; or
(B) Your facility uses cooling water withdrawn from a freshwater river or stream and the design intake flow of your cooling water intake structures is greater than five percent of the mean annual flow.
(3)
(4)
(c)
(1) You have evaluated the use of design and construction technologies and operational measures for your facility and determined that the use of restoration measures is appropriate because meeting the applicable performance standards or site-specific requirements through the use of design and construction technologies and/or operational measures alone is less feasible, less cost-effective, or less environmentally desirable than meeting the standards or requirements in whole or in part through the use of restoration measures; and
(2) The restoration measures you will implement, alone or in combination with design and construction technologies and/or operational measures, will produce ecological benefits (fish and shellfish), including maintenance or protection of community structure and function in your facility's waterbody or watershed, at a level that is substantially similar to the level you would achieve by meeting the applicable performance standards under paragraph (b) of this section, or that satisfies alternative site-specific requirements established pursuant to paragraph (a)(5) of this section.
(d)(1)
(2) During subsequent permit terms, if you selected and installed design and construction technologies and/or operational measures and have been in compliance with the construction, operational, maintenance, monitoring, and adaptive management requirements of your Technology Installation and Operation Plan during the preceding permit term, you may request that compliance with the requirements of § 125.94 during the following permit term be determined based on whether you remain in compliance with your Technology Installation and Operation Plan, revised in accordance with your adaptive management plan in § 125.95(b)(4)(ii)(C) if applicable performance standards are not being met. Each request and approval of a Technology Installation and Operation Plan shall be limited to one permit term.
(3) During subsequent permit terms, if you selected and installed restoration measures and have been in compliance with the construction, operational, maintenance, monitoring, and adaptive management requirements in your Restoration Plan during the preceding permit term, you may request that compliance with the requirements of this section during the following permit term be determined based on whether you remain in compliance with your Restoration Plan, revised in accordance with your adaptive management plan in § 125.95(b)(5)(v) if applicable performance standards are not being met. Each request and approval of a Restoration Plan shall be limited to one permit term.
(e)
(f)
(a)(1) You must submit to the Director the Proposal for Information Collection required in paragraph (b)(1) of this section prior to the start of information collection activities;
(2) You must submit to the Director the information required in 40 CFR 122.21(r)(2), (r)(3) and (r)(5) and any applicable portions of the Comprehensive Demonstration Study (Study), except for the Proposal for Information Collection required by paragraph (b)(1) of this section; and
(i) You must submit your NPDES permit application in accordance with the time frames specified in 40 CFR 122.21(d)(2).
(ii) If your existing permit expires before July 9, 2008, you may request that the Director establish a schedule for you to submit the information required by this section as expeditiously as practicable, but not later than January 7, 2008. Between the time your existing permit expires and the time an NPDES permit containing requirements consistent with this subpart is issued to your facility, the best technology available to minimize adverse environmental impact will continue to
(3) In subsequent permit terms, the Director may approve a request to reduce the information required to be submitted in your permit application on the cooling water intake structure(s) and the source waterbody, if conditions at your facility and in the waterbody remain substantially unchanged since your previous application. You must submit your request for reduced cooling water intake structure and waterbody application information to the Director at least one year prior to the expiration of the permit. Your request must identify each required information item in § 122.21(r) and this section that you determine has not substantially changed since the previous permit application and the basis for your determination.
(b)
(1)
(i) A description of the proposed and/or implemented technologies, operational measures, and/or restoration measures to be evaluated in the Study;
(ii) A list and description of any historical studies characterizing impingement mortality and entrainment and/or the physical and biological conditions in the vicinity of the cooling water intake structures and their relevance to this proposed Study. If you propose to use existing data, you must demonstrate the extent to which the data are representative of current conditions and that the data were collected using appropriate quality assurance/quality control procedures;
(iii) A summary of any past or ongoing consultations with appropriate Federal, State, and Tribal fish and wildlife agencies that are relevant to this Study and a copy of written comments received as a result of such consultations; and
(iv) A sampling plan for any new field studies you propose to conduct in order to ensure that you have sufficient data to develop a scientifically valid estimate of impingement mortality and entrainment at your site. The sampling plan must document all methods and quality assurance/quality control procedures for sampling and data analysis. The sampling and data analysis methods you propose must be appropriate for a quantitative survey and include consideration of the methods used in other studies performed in the source
(2)
(i) If your cooling water intake structure is located in a freshwater river or stream, you must provide the annual mean flow of the waterbody and any supporting documentation and engineering calculations to support your analysis of whether your design intake flow is greater than five percent of the mean annual flow of the river or stream for purposes of determining applicable performance standards under paragraph (b) of this section. Representative historical data (from a period of time up to 10 years, if available) must be used; and
(ii) If your cooling water intake structure is located in a lake (other than one of the Great Lakes) or a reservoir and you propose to increase its design intake flow, you must provide a description of the thermal stratification in the waterbody, and any supporting documentation and engineering calculations to show that the total design intake flow after the increase will not disrupt the natural thermal stratification and turnover pattern in a way that adversely impacts fisheries, including the results of any consultations with Federal, State, or Tribal fish and wildlife management agencies.
(3)
(i) Taxonomic identifications of all life stages of fish, shellfish, and any species protected under Federal, State, or Tribal Law (including threatened or endangered species) that are in the vicinity of the cooling water intake structure(s) and are susceptible to impingement and entrainment;
(ii) A characterization of all life stages of fish, shellfish, and any species protected under Federal, State, or Tribal Law (including threatened or endangered species) identified pursuant to paragraph (b)(3)(i) of this section, including a description of the abundance and temporal and spatial characteristics in the vicinity of the cooling water intake structure(s), based on sufficient data to characterize annual, seasonal, and diel variations in impingement mortality and entrainment (
(iii) Documentation of the current impingement mortality and entrainment of all life stages of fish, shellfish, and any species protected under Federal, State, or Tribal Law (including threatened or endangered species) identified pursuant to paragraph (b)(3)(i) of this section and an estimate of impingement mortality and entrainment to be used as the calculation baseline. The documentation may include historical data that are representative of the current operation of your facility and of biological conditions at the site. Impingement mortality and entrainment samples to support the calculations required in paragraphs (b)(4)(i)(C) and (b)(5)(iii) of this section must be collected during periods of representative operational flows for the cooling water intake structure and the flows associated with the samples must be documented;
(4)
(A) A narrative description of the design and operation of all design and construction technologies and/or operational measures (existing and proposed), including fish handling and return systems, that you have in place or will use to meet the requirements to reduce impingement mortality of those species expected to be most susceptible to impingement, and information that demonstrates the efficacy of the technologies and/or operational measures for those species;
(B) A narrative description of the design and operation of all design and construction technologies and/or operational measures (existing and proposed) that you have in place or will use to meet the requirements to reduce entrainment of those species expected to be the most susceptible to entrainment, if applicable, and information that demonstrates the efficacy of the technologies and/or operational measures for those species;
(C) Calculations of the reduction in impingement mortality and entrainment of all life stages of fish and shellfish that would be achieved by the technologies and/or operational measures you have selected based on the Impingement Mortality and/or Entrainment Characterization Study in paragraph (b)(3) of this section. In determining compliance with any requirements to reduce impingement mortality or entrainment, you must assess the total reduction in impingement mortality and entrainment against the calculation baseline determined in accordance with paragraph (b)(3) of this section. Reductions in impingement mortality and entrainment from this calculation baseline as a result of any design and construction technologies and/or operational measures already implemented at your facility should be added to the reductions expected to be achieved by any additional design and/or construction technologies and operational measures that will be implemented, and any increases in fish and shellfish within the waterbody attributable to your restoration measures. Facilities that recirculate a portion of their flow, but do not reduce flow sufficiently to satisfy the compliance option in § 125.94(a)(1)(i) may take into account the reduction in impingement mortality and entrainment associated with the reduction in flow when determining the net reduction associated with existing design and construction technologies and/or operational measures. This estimate must include a site-specific evaluation of the suitability of the technologies and/or operational measures based on the species that are found at the site, and may be determined based on representative studies (
(D) Design and engineering calculations, drawings, and estimates prepared by a qualified professional to support the descriptions required by
(ii)
(A) A schedule for the installation and maintenance of any new design and construction technologies. Any downtime of generating units to accommodate installation and/or maintenance of these technologies should be scheduled to coincide with otherwise necessary downtime (
(B) List of operational and other parameters to be monitored, and the location and frequency that you will monitor them;
(C) List of activities you will undertake to ensure to the degree practicable the efficacy of installed design and construction technologies and operational measures, and your schedule for implementing them;
(D) A schedule and methodology for assessing the efficacy of any installed design and construction technologies and operational measures in meeting applicable performance standards or site-specific requirements, including an adaptive management plan for revising design and construction technologies, operational measures, operation and maintenance requirements, and/or monitoring requirements if your assessment indicates that applicable performance standards or site-specific requirements are not being met; and
(E) If you choose the compliance alternative in § 125.94(a)(4), documentation that the appropriate site conditions in § 125.99(a) or (b) exist at your facility.
(5)
(i) A demonstration to the Director that you have evaluated the use of design and construction technologies and/or operational measures for your facility and an explanation of how you determined that restoration would be more feasible, cost-effective, or environmentally desirable;
(ii) A narrative description of the design and operation of all restoration measures (existing and proposed) that you have in place or will use to produce fish and shellfish;
(iii) Quantification of the ecological benefits of the proposed restoration measures. You must use information from the Impingement Mortality and/or Entrainment Characterization Study required in paragraph (b)(3) of this section, and any other available and appropriate information, to estimate the reduction in fish and shellfish impingement mortality and/or entrainment that would be necessary for your facility to comply with § 125.94(c)(2). You must then calculate the production of fish and shellfish that you will achieve with the restoration measures you will or have already installed. You must include a discussion of the nature and magnitude of uncertainty associated with the performance of these restoration measures. You must also include a discussion of the time frame within which these ecological benefits are expected to accrue;
(iv) Design calculations, drawings, and estimates to document that your proposed restoration measures in combination with design and construction technologies and/or operational measures, or alone, will meet the requirements of § 125.94(c)(2). If the restoration measures address the same fish and
(v) A plan utilizing an adaptive management method for implementing, maintaining, and demonstrating the efficacy of the restoration measures you have selected and for determining the extent to which the restoration measures, or the restoration measures in combination with design and construction technologies and operational measures, have met the applicable requirements of § 125.94(c)(2). The plan must include:
(A) A monitoring plan that includes a list of the restoration parameters that will be monitored, the frequency at which you will monitor them, and success criteria for each parameter;
(B) A list of activities you will undertake to ensure the efficacy of the restoration measures, a description of the linkages between these activities and the items in paragraph (b)(5)(v)(A) of this section, and an implementation schedule; and
(C) A process for revising the Restoration Plan as new information, including monitoring data, becomes available, if the applicable requirements under § 125.94(c)(2) are not being met.
(vi) A summary of any past or ongoing consultation with appropriate Federal, State, and Tribal fish and wildlife management agencies on your use of restoration measures including a copy of any written comments received as a result of such consultations;
(vii) If requested by the Director, a peer review of the items you submit for the Restoration Plan. You must choose the peer reviewers in consultation with the Director who may consult with EPA and Federal, State, and Tribal fish and wildlife management agencies with responsibility for fish and wildlife potentially affected by your cooling water intake structure(s). Peer reviewers must have appropriate qualifications (
(viii) A description of the information to be included in a bi-annual status report to the Director.
(6)
(i)
(A) Engineering cost estimates in sufficient detail to document the costs
(B) A demonstration that the costs documented in paragraph (b)(6)(i)(A) of this section significantly exceed either those considered by the Administrator for a facility like yours in establishing the applicable performance standards or the benefits of meeting the applicable performance standards at your facility; and
(C) Engineering cost estimates in sufficient detail to document the costs of implementing the design and construction technologies, operational measures, and/or restoration measures in your Site-Specific Technology Plan developed in accordance with paragraph (b)(6)(iii) of this section.
(ii)
(A) A description of the methodology(ies) used to value commercial, recreational, and ecological benefits (including any non-use benefits, if applicable);
(B) Documentation of the basis for any assumptions and quantitative estimates. If you plan to use an entrainment survival rate other than zero, you must submit a determination of entrainment survival at your facility based on a study approved by the Director;
(C) An analysis of the effects of significant sources of uncertainty on the results of the study; and
(D) If requested by the Director, a peer review of the items you submit in the Benefits Valuation Study. You must choose the peer reviewers in consultation with the Director who may consult with EPA and Federal, State, and Tribal fish and wildlife management agencies with responsibility for fish and wildlife potentially affected by your cooling water intake structure. Peer reviewers must have appropriate qualifications depending upon the materials to be reviewed.
(E) A narrative description of any non-monetized benefits that would be realized at your site if you were to meet the applicable performance standards and a qualitative assessment of their magnitude and significance.
(iii)
(A) A narrative description of the design and operation of all existing and proposed design and construction technologies, operational measures, and/or restoration measures that you have selected in accordance with § 125.94(a)(5);
(B) An engineering estimate of the efficacy of the proposed and/or implemented design and construction technologies or operational measures, and/or restoration measures. This estimate must include a site-specific evaluation of the suitability of the technologies or operational measures for reducing impingement mortality and/or entrainment (as applicable) of all life stages of fish and shellfish based on representative studies (
(C) A demonstration that the proposed and/or implemented design and construction technologies, operational measures, and/or restoration measures achieve an efficacy that is as close as
(D) Design and engineering calculations, drawings, and estimates prepared by a qualified professional to support the elements of the Plan.
(7)
(i) Description of the frequency and duration of monitoring, the parameters to be monitored, and the basis for determining the parameters and the frequency and duration for monitoring. The parameters selected and duration and frequency of monitoring must be consistent with any methodology for assessing success in meeting applicable performance standards in your Technology Installation and Operation Plan as required by paragraph (b)(4)(ii) of this section.
(ii) A proposal on how naturally moribund fish and shellfish that enter the cooling water intake structure would be identified and taken into account in assessing success in meeting the performance standards in § 125.94(b).
(iii) A description of the information to be included in a bi-annual status report to the Director.
As an owner or operator of a Phase II existing facility, you must perform monitoring, as applicable, in accordance with the Technology Installation and Operation Plan required by § 125.95(b)(4)(ii), the Restoration Plan required by § 125.95(b)(5), the Verification Monitoring Plan required by § 125.95(b)(7), and any additional monitoring specified by the Director to demonstrate compliance with the applicable requirements of § 125.94.
As an owner or operator of a Phase II existing facility you are required to keep records and report information and data to the Director as follows:
(a) You must keep records of all the data used to complete the permit application and show compliance with the requirements of § 125.94, any supplemental information developed under § 125.95, and any compliance monitoring data submitted under § 125.96, for a period of at least three (3) years from date of permit issuance. The Director may require that these records be kept for a longer period.
(b) You must submit a status report to the Director for review every two years that includes appropriate monitoring data and other information as specified by the Director in accordance with § 125.98(b)(5).
(a)
(1) You must review and comment on the Proposal for Information Collection submitted by the facility in accordance with § 125.95(a)(1). You are encouraged to provide comments expeditiously so that the permit applicant can make responsive modifications to its information gathering activities. If
(2) After receiving the permit application from the owner or operator of a Phase II existing facility, you must determine which of the requirements specified in § 125.94 apply to the facility. In addition, you must review materials to determine compliance with the applicable requirements.
(3) At each permit renewal, you must review the application materials and monitoring data to determine whether new or revised requirements for design and construction technologies, operational measures, or restoration measures should be included in the permit to meet the applicable performance standards in § 125.94(b) or alternative site-specific requirements established pursuant to § 125.94(a)(5).
(b)
(1)
(i) You must review and approve the Design and Construction Technology Plan required in § 125.95(b)(4) to evaluate the suitability and feasibility of the design and construction technology and/or operational measures proposed to meet the performance standards in § 125.94(b) or site-specific requirements developed pursuant to § 125.94(a)(5).
(ii) If the facility proposes restoration measures in accordance with § 125.94(c), you must review and approve the Restoration Plan required under § 125.95(b)(5) to determine whether the proposed measures, alone or in combination with design and construction technologies and/or operational measures, will meet the requirements under § 125.94(c).
(iii) In each reissued permit, you must include a condition in the permit requiring the facility to reduce impingement mortality and entrainment (or to increase fish production, if applicable) commensurate with the efficacy
(iv) If the facility implements design and construction technologies and/or operational measures and requests that compliance with the requirements in § 125.94 be measured for the first permit term (or subsequent permit terms, if applicable) employing the Technology Installation and Operation Plan in accordance with § 125.95(b)(4)(ii), you must review the Technology Installation and Operation Plan to ensure it meets the requirements of § 125.95(b)(4)(ii). If the Technology Installation and Operation Plan meets the requirements of § 125.95(b)(4)(ii), you must approve the Technology Installation and Operation Plan and require the facility to meet the terms of the plan including any revision to the plan that may be necessary if applicable performance standards or alternative site-specific requirements are not being met. If the facility implements restoration measures and requests that compliance with the requirements in § 125.94 be measured for the first permit term (or subsequent permit terms, if applicable) employing a Restoration Plan in accordance with § 125.95(b)(5), you must review the Restoration Plan to ensure it meets the requirements of § 125.95(b)(5). If the Restoration Plan meets the requirements of § 125.95(b)(5), you must approve the plan and require the facility to meet the terms of the plan including any revision to the plan that may be necessary if applicable performance standards or site-specific requirements are not being met. In determining whether to approve a Technology Installation and Operation Plan or Restoration Plan, you must evaluate whether the design and construction technologies, operational measures, and/or restoration measures the facility has installed, or proposes to install, can reasonably be expected to meet the applicable performance standards in § 125.94(b), restoration requirements in § 125.94(c)(2), and/or alternative site-specific requirements established pursuant to § 125.94(a)(5), and whether the Technology Installation and Operation Plan and/or Restoration Plan complies with the applicable requirements of § 125.95(b). In reviewing the Technology Installation and Operation Plan, you must approve any reasonable scheduling provisions that are designed to ensure that impacts to energy reliability and supply are minimized, in accordance with § 125.95(b)(4)(ii)(A). If the facility does not request that compliance with the requirements in § 125.94 be measured employing a Technology Installation and Operation Plan and/or Restoration Plan, or the facility has not been in compliance with the terms of its current Technology Installation and Operation Plan and/or Restoration Plan during the preceding permit term, you must require the facility to comply with the applicable performance standards in § 125.94(b), restoration requirement in § 125.94(c)(2), and/or alternative site-specific requirements developed pursuant to § 125.94(a)(5). In considering a permit application, you must review the performance of the design and construction technologies, operational measures, and/or restoration measures implemented and require additional or different design and construction technologies, operational measures, and/or restoration measures, and/or improved operation and maintenance of existing technologies and measures, if needed to meet the applicable performance standards, restoration requirements, and/or alternative site-specific requirements.
(v) You must review and approve the proposed Verification Monitoring Plan submitted under § 125.95(b)(7) (for design and construction technologies) and/or monitoring provisions of the Restoration Plan submitted under § 125.95(b)(5)(v) and require that the monitoring continue for a sufficient period of time to demonstrate whether the design and construction technology, operational measures, and/or restoration measures meet the applicable performance standards in § 125.94(b), restoration requirements in 125.94(c)(2) and/or site-specific requirements established pursuant to § 125.94(a)(5).
(vi) If a facility requests requirements based on a site-specific determination of best technology available for minimizing adverse environmental impact, you must review the application materials submitted under
(vii) You must review the proposed methods for assessing success in meeting applicable performance standards and/or restoration requirements submitted by the facility under § 125.95(b)(4)(ii)(D) and/or (b)(5)(v)(A), evaluate those and other available methods, and specify how assessment of success in meeting the performance standards and/or restoration requirements must be determined including the averaging period for determining the percent reduction in impingement mortality and entrainment and/or the production of fish and shellfish. Compliance for facilities who request that compliance be measured employing a Technology Installation and Operation Plan and/or Restoration Plan must be determined in accordance with § 125.98(b)(1)(iv).
(2)
(3)
(4)
(ii) If a person requests approval of a technology under § 125.99(b), the Director must review and approve the information submitted and determine its suitability for widespread use at facilities with similar site conditions in its jurisdiction with minimal study. As the Director, you must evaluate the adequacy of the technology when installed in accordance with the required design criteria and site conditions to consistently meet the performance standards in § 125.94. You, as the Director, may only approve a technology following public notice and consideration of comment regarding such approval.
(5)
(a) The following technologies constitute approved design and construction technologies for purposes of § 125.94(a)(4):
(1) Submerged cylindrical wedge-wire screen technology, if you meet the following conditions:
(i) Your cooling water intake structure is located in a freshwater river or stream;
(ii) Your cooling water intake structure is situated such that sufficient ambient counter currents exist to promote cleaning of the screen face;
(iii)Your maximum through-screen design intake velocity is 0.5 ft/s or less;
(iv) The slot size is appropriate for the size of eggs, larvae, and juveniles of all fish and shellfish to be protected at the site; and
(v) Your entire main condenser cooling water flow is directed through the technology. Small flows totaling less than 2 MGD for auxiliary plant cooling uses are excluded from this provision.
(2) A technology that has been approved in accordance with the process described in paragraph (b) of this section.
(b) You or any other interested person may submit a request to the Director that a technology be approved in accordance with the compliance alternative in § 125.94(a)(4) after providing the public with notice and an opportunity to comment on the request for approval of the technology. If the Director approves the technology, it may be used by all facilities with similar site conditions under the Director's jurisdiction. Requests for approval of a technology must be submitted to the Director and include the following information:
(1) A detailed description of the technology;
(2) A list of design criteria for the technology and site characteristics and conditions that each facility must have in order to ensure that the technology can consistently meet the appropriate impingement mortality and entrainment performance standards in § 125.94(b); and
(3) Information and data sufficient to demonstrate that facilities under the jurisdiction of the Director can meet the applicable impingement mortality and entrainment performance standards in § 125.94(b) if the applicable design criteria and site characteristics and conditions are present at the facility.
This subpart establishes guidelines for issuance of National Pollutant Discharge Elimination System (NPDES) permits for the discharge of pollutants from a point source into the territorial seas, the contiguous zone, and the oceans.
(a)
(b)
(c)
(d)
(1) No land-based disposal sites, discharge point(s) within internal waters, or approved ocean dumping sites within a reasonable distance of the site of the proposed discharge the use of which would not cause unwarranted economic impacts on the discharger, or, notwithstanding the availability of such sites,
(2) On-site disposal is environmentally preferable to other alternative means of disposal after consideration of:
(i) The relative environmental harm of disposal on-site, in disposal sites located on land, from discharge point(s) within internal waters, or in approved ocean dumping sites, and
(ii) The risk to the environment and human safety posed by the transportation of the pollutants.
(e)
(2) Threat to human health through direct exposure to pollutants or through consumption of exposed aquatic organisms, or
(3) Loss of esthetic, recreational, scientific or economic values which is unreasonable in relation to the benefit derived from the discharge.
(a) The director shall determine whether a discharge will cause unreasonable degradation of the marine environment based on consideration of:
(1) The quantities, composition and potential for bioaccumulation or persistence of the pollutants to be discharged;
(2) The potential transport of such pollutants by biological, physical or chemical processes;
(3) The composition and vulnerability of the biological communities which may be exposed to such pollutants, including the presence of unique species or communities of species, the presence of species identified as endangered or threatened pursuant to the Endangered Species Act, or the presence of those species critical to the structure or function of the ecosystem, such as those important for the food chain;
(4) The importance of the receiving water area to the surrounding biological community, including the presence of spawning sites, nursery/forage areas, migratory pathways, or areas necessary for other functions or critical stages in the life cycle of an organism.
(5) The existence of special aquatic sites including, but not limited to marine sanctuaries and refuges, parks, national and historic monuments, national seashores, wilderness areas and coral reefs;
(6) The potential impacts on human health through direct and indirect pathways;
(7) Existing or potential recreational and commercial fishing, including finfishing and shellfishing;
(8) Any applicable requirements of an approved Coastal Zone Management plan;
(9) Such other factors relating to the effects of the discharge as may be appropriate;
(10) Marine water quality criteria developed pursuant to section 304(a)(1).
(b) Discharges in compliance with section 301(g), 301(h), or 316(a) variance requirements or State water quality standards shall be presumed not to cause unreasonable degradation of the marine environment, for any specific pollutants or conditions specified in the variance or the standard.
(a) If the director on the basis of available information including that supplied by the applicant pursuant to § 125.124 determines prior to permit issuance that the discharge will not cause unreasonable degradation of the marine environment after application of any necessary conditions specified in § 125.123(d), he may issue an NPDES permit containing such conditions.
(b) If the director, on the basis of available information including that supplied by the applicant pursuant to § 125.124 determines prior to permit issuance that the discharge will cause unreasonable degradation of the marine environment after application of all possible permit conditions specified in § 125.123(d), he may not issue an
(c) If the director has insufficient information to determine prior to permit issuance that there will be no unreasonable degradation of the marine environment pursuant to § 125.122, there shall be no discharge of pollutants into the marine environment unless the director on the basis of available information, including that supplied by the applicant pursuant to § 125.124 determines that:
(1) Such discharge will not cause irreparable harm to the marine environment during the period in which monitoring is undertaken, and
(2) There are no reasonable alternatives to the on-site disposal of these materials, and
(3) The discharge will be in compliance with all permit conditions established pursuant to paragraph (d) of this section.
(d) All permits which authorize the discharge of pollutants pursuant to paragraph (c) of this section shall:
(1) Require that a discharge of pollutants will: (i) Following dilution as measured at the boundary of the mixing zone not exceed the limiting permissible concentration for the liquid and suspended particulate phases of the waste material as described in § 227.27(a) (2) and (3), § 227.27(b), and § 227.27(c) of the Ocean Dumping Criteria; and (ii) not exceed the limiting permissible concentration for the solid phase of the waste material or cause an accumulation of toxic materials in the human food chain as described in § 227.27 (b) and (d) of the Ocean Dumping Criteria;
(2) Specify a monitoring program, which is sufficient to assess the impact of the discharge on water, sediment, and biological quality including, where appropriate, analysis of the bioaccumulative and/or persistent impact on aquatic life of the discharge;
(3) Contain any other conditions, such as performance of liquid or suspended particulate phase bioaccumulation tests, seasonal restrictions on discharge, process modifications, dispersion of pollutants, or schedule of compliance for existing discharges, which are determined to be necessary because of local environmental conditions, and
(4) Contain the following clause: In addition to any other grounds specified herein, this permit shall be modified or revoked at any time if, on the basis of any new data, the director determines that continued discharges may cause unreasonable degradation of the marine environment.
The applicant is responsible for providing information which the director may request to make the determination required by this subpart. The director may require the following information as well as any other pertinent information:
(a) An analysis of the chemical constituents of any discharge;
(b) Appropriate bioassays necessary to determine the limiting permissible concentrations for the discharge;
(c) An analysis of initial dilution;
(d) Available process modifications which will reduce the quantities of pollutants which will be discharged;
(e) Analysis of the location where pollutants are sought to be discharged, including the biological community and the physical description of the discharge facility;
(f) Evaluation of available alternatives to the discharge of the pollutants including an evaluation of the possibility of land-based disposal or disposal in an approved ocean dumping site.
(a) This subpart establishes requirements that apply to the location, design, construction, and capacity of cooling water intake structures at new offshore oil and gas extraction facilities. The purpose of these requirements is to establish the best technology
(b) This subpart implements section 316(b) of the CWA for new offshore oil and gas extraction facilities. Section 316(b) of the CWA provides that any standard established pursuant to sections 301 or 306 of the CWA and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.
(c) New offshore oil and gas extraction facilities that do not meet the threshold requirements regarding amount of water withdrawn or percentage of water withdrawn for cooling water purposes in § 125.131(a) must meet requirements determined by the Director on a case-by-case, best professional judgement (BPJ) basis.
(d) Nothing in this subpart shall be construed to preclude or deny the right of any State or political subdivision of a State or any interstate agency under section 510 of the CWA to adopt or enforce any requirement with respect to control or abatement of pollution that is more stringent than those required by Federal law.
(a) This subpart applies to a new offshore oil and gas extraction facility if it meets all of the following criteria:
(1) It is a point source that uses or proposes to use a cooling water intake structure;
(2) It has at least one cooling water intake structure that uses at least 25 percent of the water it withdraws for cooling purposes as specified in paragraph (c) of this section; and
(3) It has a design intake flow greater than two (2) million gallons per day (MGD).
(b) Use of a cooling water intake structure includes obtaining cooling water by any sort of contract or arrangement with an independent supplier (or multiple suppliers) of cooling water if the supplier or suppliers withdraw(s) water from waters of the United States. Use of cooling water does not include obtaining cooling water from a public water system or the use of treated effluent that otherwise would be discharged to a water of the U.S.
(c) The threshold requirement that at least 25 percent of water withdrawn be used for cooling purposes must be measured on an average monthly basis. A new offshore oil and gas extraction facility meets the 25 percent cooling water threshold if, based on the new facility's design, any monthly average over a year for the percentage of cooling water withdrawn is expected to equal or exceed 25 percent of the total water withdrawn.
(d) Neither this subpart nor Subpart I of this part applies to seafood processing vessels or offshore liquefied natural gas import terminals that are new facilities as defined in 40 CFR 125.83. Seafood processing vessels and offshore liquefied natural gas import terminals must meet requirements established by the Director on a case-by-case, best professional judgment (BPJ) basis.
You must comply with this subpart when an NPDES permit containing requirements consistent with this subpart is issued to you.
In addition to the definitions set forth at 40 CFR 125.83, the following special definitions apply to this subpart:
(a)(1) The owner or operator of a new offshore oil and gas extraction facility must comply with:
(i) Track I in paragraph (b) or Track II in paragraph (c) of this section, if it is a fixed facility; or
(ii) Track I in paragraph (b) of this section, if it is
(2) In addition to meeting the requirements in paragraph (b) or (c) of this section, the owner or operator of a new offshore oil and gas extraction facility may be required to comply with paragraph (d) of this section.
(b)
(ii) New offshore oil and gas extraction facilities that employ sea chests as cooling water intake structures and are fixed facilities must comply with the requirements in paragraphs (b)(2), (3), (4), (6), (7), and (8) of this section.
(iii) New offshore oil and gas extraction facilities that are
(2) You must design and construct each cooling water intake structure at your facility to a maximum through-screen design intake velocity of 0.5 ft/s;
(3) For cooling water intake structures located in an estuary or tidal river, the total design intake flow over one tidal cycle of ebb and flow must be no greater than one (1) percent of the volume of the water column within the area centered about the opening of the intake with a diameter defined by the distance of one tidal excursion at the mean low water level;
(4) You must select and implement design and construction technologies or operational measures for minimizing impingement mortality of fish and shellfish if the Director determines that:
(i) There are threatened or endangered or otherwise protected federal, state, or tribal species, or critical habitat for these species, within the hydraulic zone of influence of the cooling water intake structure; or
(ii) Based on information submitted by any fishery management agency(ies) or other relevant information, there are migratory and/or sport or commercial species of impingement concern to the Director that pass through the hydraulic zone of influence of the cooling water intake structure; or
(iii) Based on information submitted by any fishery management agency(ies) or other relevant information, that the proposed facility, after meeting the technology-based performance requirements in paragraphs (b)(2) and (5) of this section, would still contribute unacceptable stress to the protected species, critical habitat of those species, or species of concern;
(5) You must select and implement design and construction technologies or operational measures for minimizing entrainment of entrainable life stages of fish and shellfish;
(6) You must submit the applicable application information required in 40 CFR 122.21(r) and § 125.136(b). If you are a fixed facility you must submit the information required in 40 CFR 122.21(r)(2) (except (r)(2)(iv)), (3), and (4) and § 125.136(b) of this subpart as part of your application. If you are a not a fixed facility, you must only submit the information required in 40 CFR 122.21(r)(2)(iv), (r)(3) (except (r)(3)(ii)) and § 125.136(b) as part of your application.
(7) You must implement the monitoring requirements specified in § 125.137; and
(8) You must implement the recordkeeping requirements specified in § 125.138.
(c)
(1) You must demonstrate to the Director that the technologies employed will reduce the level of adverse environmental impact from your cooling water intake structures to a comparable level to that which you would achieve were you to implement the applicable requirements of paragraph (b)(2) and, if your facility is a fixed facility without a sea chest, also paragraph (b)(5) of this section. This demonstration must include a showing that the impacts to fish and shellfish, including important forage and predator species, will be comparable to those which would result if you were to implement the requirements of paragraph (b)(2) and, if your facility is a fixed facility without a sea chest, also paragraph (b)(5) of this section. In identifying such species, the Director may consider information provided by any fishery management agency(ies) along with data and information from other sources;
(2) For cooling water intake structures located in an estuary or tidal river, the total design intake flow over one tidal cycle of ebb and flow must be no greater than one (1) percent of the volume of the water column within the area centered about the opening of the intake with a diameter defined by the distance of one tidal excursion at the mean low water level;
(3) You must submit the applicable information required in 40 CFR 122.21(r)(2) (except (r)(2)(iv)), (3) and (4) and § 125.136(c);
(4) You must implement the monitoring requirements specified in § 125.137;
(5) You must implement the record-keeping requirements specified in § 125.138.
(d) You must comply with any more stringent requirements relating to the location, design, construction, and capacity of a cooling water intake structure or monitoring requirements at a new offshore oil and gas extraction facility that the Director deems are reasonably necessary to comply with any provision of federal or state law, including compliance with applicable state water quality standards (including designated uses, criteria, and antidegradation requirements).
(a) Any interested person may request that alternative requirements
(1) There is an applicable requirement under § 125.134(a) through (d);
(2) The Director determines that data specific to the facility indicate that compliance with the requirement at issue would result in compliance costs wholly out of proportion to the costs EPA considered in establishing the requirement at issue or would result in significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on energy markets;
(3) The alternative requirement requested is no less stringent than justified by the wholly out of proportion cost or the significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on energy markets; and
(4) The alternative requirement will ensure compliance with other applicable provisions of the Clean Water Act and any applicable requirement of federal or state law.
(b) The burden is on the person requesting the alternative requirement to demonstrate that alternative requirements should be authorized.
(a)(1) As an owner or operator of a new offshore oil and gas extraction facility, you must submit to the Director a statement that you intend to comply with either:
(i) The Track I requirements for new offshore oil and gas extraction facilities in § 125.134(b); or
(ii) If you are a fixed facility, you may choose to comply with the Track II requirements in § 125.134(c).
(2) You must also submit the application information required by 40 CFR 122.21(r) and the information required in either paragraph (b) of this section for Track I or, if you are a fixed facility that chooses to comply under Track II, paragraph (c) of this section when you apply for a new or reissued NPDES permit in accordance with 40 CFR 122.21.
(b)
(1)
(i) A narrative description of the design, structure, equipment, and operation used to meet the velocity requirement; and
(ii) Design calculations showing that the velocity requirement will be met at minimum ambient source water surface elevations (based on best professional judgment using available hydrological data) and maximum head loss across the screens or other device.
(2)
(3)
(i) If the Director determines that additional impingement requirements should be included in your permit:
(A) Information to demonstrate whether or not you meet the criteria in § 125.134(b)(4);
(B) Delineation of the hydraulic zone of influence for your cooling water intake structure;
(ii) New offshore oil and gas extraction facilities required to install design and construction technologies and/or operational measures must develop a plan explaining the technologies and
(A) A narrative description of the design and operation of the design and construction technologies, including fish-handling and return systems, that you will use to maximize the survival of those species expected to be most susceptible to impingement. Provide species-specific information that demonstrates the efficacy of the technology;
(B) To demonstrate compliance with § 125.134(b)(5), if applicable, a narrative description of the design and operation of the design and construction technologies that you will use to minimize entrainment of those species expected to be the most susceptible to entrainment. Provide species-specific information that demonstrates the efficacy of the technology; and
(C) Design calculations, drawings, and estimates to support the descriptions provided in paragraphs (b)(3)(ii)(A) and (B) of this section.
(c)
(1)
(2)
(i) To meet the “comparable level” requirement, you must demonstrate that:
(A) You have reduced impingement mortality of all life stages of fish and shellfish to 90 percent or greater of the reduction that would be achieved through the applicable requirements in § 125.134(b)(2); and
(B) If you are a facility without sea chests, you have minimized entrainment of entrainable life stages of fish and shellfish to 90 percent or greater of the reduction that would have been achieved through the applicable requirements in § 125.134(b)(5);
(ii) You must develop and submit a plan to the Director containing a proposal for how information will be collected to support the study. The plan must include:
(A) A description of the proposed and/or implemented technology(ies) to be evaluated in the Study;
(B) A list and description of any historical studies characterizing the physical and biological conditions in the vicinity of the proposed or actual intakes and their relevancy to the proposed Study. If you propose to rely on existing source water body data, it must be no more than 5 years old, you must demonstrate that the existing data are sufficient to develop a scientifically valid estimate of potential impingement mortality and (if applicable) entrainment impacts, and provide documentation showing that the data were collected using appropriate quality assurance/quality control procedures;
(C) Any public participation or consultation with Federal or State agencies undertaken in developing the plan; and
(D) A sampling plan for data that will be collected using actual field studies in the source water body. The sampling plan must document all
(iii) You must submit documentation of the results of the Study to the Director. Documentation of the results of the Study must include:
(A)
(
(
(
(B)
(
(
(C)
As an owner or operator of a new offshore oil and gas extraction facility, you will be required to perform monitoring to demonstrate your compliance with the requirements specified in § 125.134 or alternative requirements under § 125.135.
(a)
(ii) Fixed facilities with sea chests that choose to comply with Track I requirements are not required to perform biological monitoring unless the Director determines that the information would be necessary to evaluate the need for or compliance with additional requirements in accordance with § 125.134(b)(4) or more stringent requirements in accordance with § 125.134(d).
(iii) Facilities that are not fixed facilities are not required to perform biological monitoring unless the Director determines that the information would be necessary to evaluate the need for or compliance with additional requirements in accordance with § 125.134(b)(4) or more stringent requirements in accordance with § 125.134(d).
(iv) Fixed facilities with sea chests that choose to comply with Track II requirements in accordance with § 125.134(c), must monitor for impingement only. Fixed facilities without sea chests that choose to comply with Track II requirements, must monitor for both impingement and entrainment.
(2) Monitoring must characterize the impingement rates and (if applicable) entrainment rates) of commercial, recreational, and forage base fish and shellfish species identified in the Source Water Baseline Biological Characterization data required by 40 CFR 122.21(r)(4), identified in the Comprehensive Demonstration Study required by § 125.136(c)(2), or as specified by the Director.
(3) The monitoring methods used must be consistent with those used for the Source Water Baseline Biological Characterization data required in 40 CFR 122.21(r)(4), those used by the Comprehensive Demonstration Study required by § 125.136(c)(2), or as specified by the Director. You must follow the monitoring frequencies identified below for at least two (2) years after the initial permit issuance. After that time, the Director may approve a request for less frequent sampling in the remaining years of the permit term and when the permit is reissued, if supporting data show that less frequent monitoring would still allow for the detection of any seasonal variations in the species and numbers of individuals that are impinged or entrained.
(4)
(5)
(b)
(c)
As an owner or operator of a new offshore oil and gas extraction facility you are required to keep records and report information and data to the Director as follows:
(a) You must keep records of all the data used to complete the permit application and show compliance with the requirements, any supplemental information developed under § 125.136, and any compliance monitoring data submitted under § 125.137, for a period of at least three (3) years from the date of permit issuance. The Director may require that these records be kept for a longer period.
(b) You must provide the following to the Director in a yearly status report:
(1) For fixed facilities, biological monitoring records for each cooling water intake structure as required by § 125.137(a);
(2) Velocity and head loss monitoring records for each cooling water intake structure as required by § 125.137(b); and
(3) Records of visual or remote inspections as required in § 125.137(c).
(a)
(1) After receiving the initial permit application from the owner or operator of a new offshore oil and gas extraction facility, the Director must determine applicable standards in § 125.134 or § 125.135 to apply to the new offshore oil and gas extraction facility. In addition, the Director must review materials to determine compliance with the applicable standards.
(2) For each subsequent permit renewal, the Director must review the application materials and monitoring data to determine whether requirements, or additional requirements, for design and construction technologies or operational measures should be included in the permit.
(3) For Track II facilities, the Director may review the information collection proposal plan required by § 125.136(c)(2)(ii). The facility may initiate sampling and data collection activities prior to receiving comment from the Director.
(b)
(1)
(i) For a facility that chooses Track I, you must review the Design and Construction Technology Plan required in § 125.136(b)(3) to evaluate the suitability and feasibility of the technology proposed to minimize impingement mortality and (if applicable) entrainment of all life stages of fish and shellfish. In the first permit issued, you must include a condition requiring the facility to reduce impingement mortality and/or entrainment commensurate with the implementation of the technologies in the permit. Under subsequent permits, the Director must review the performance of the technologies implemented and require additional or different design and construction technologies, if needed to minimize impingement mortality and/or entrainment of all life stages of fish and shellfish. In addition, you must consider whether more stringent conditions are reasonably necessary in accordance with § 125.134(d).
(ii) For a fixed facility that chooses Track II, you must review the information submitted with the Comprehensive Demonstration Study information required in § 125.136(c)(2), evaluate the suitability of the proposed design and construction technology and/or operational measures to determine whether they will reduce both impingement mortality and/or entrainment of all life stages of fish and shellfish to 90 percent or greater of the reduction that could be achieved through Track I. In addition, you must review the Verification Monitoring Plan in § 125.136(c)(2)(iii)(C) and require that the proposed monitoring begin at the start of operations of the cooling water intake structure and continue for a sufficient period of time to demonstrate that the technologies and operational measures meet the requirements in § 125.134(c)(1). Under subsequent permits, the Director must review the performance of the additional and /or different technologies or measures used and determine that they reduce the level of adverse environmental impact from the cooling water intake structures to a comparable level that the facility would achieve were it to implement the requirements of § 125.134(b)(2) and, if applicable, § 125.134(b)(5).
(iii) If a facility requests alternative requirements in accordance with § 125.135, you must determine if data specific to the facility meet the requirements in § 125.135(a) and include in the permit requirements that are no less stringent than justified by the wholly out of proportion cost or the significant adverse impacts on local water resources other than impingement or entrainment, or significant adverse impacts on energy markets.
(2)
(3)
Secs. 307, 308, 501, Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92-500, 86 Stat. 816, (33 U.S.C. 1251
(a) The provisions of this subpart apply to owners or operators of specified facilities discharging into navigable waters.
(b) The effluent standards or prohibitions for toxic pollutants established in this subpart shall be applicable to the sources and pollutants hereinafter set forth, and may be incorporated in any NPDES permit, modification or renewal thereof, in accordance with the provisions of this subpart.
(c) The provisions of 40 CFR parts 124 and 125 shall apply to any NPDES permit proceedings for any point source discharge containing any toxic pollutant for which a standard or prohibition is established under this part.
All terms not defined herein shall have the meaning given them in the Act or in 40 CFR part 124 or 125. As used in this part, the term:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
The abbreviations used in this part represent the following terms:
The following are the pollutants subject to regulation under the provisions of this subpart:
(a) Aldrin/Dieldrin—
(b) DDT—
(c) Endrin—
(d) Toxaphene—
(e) Benzidine—
(f) Polychlorinated Biphenyls (PCBs)
(a)(1) Within 60 days from the date of promulgation of any toxic pollutant effluent standard or prohibition each owner or operator with a discharge subject to that standard or prohibition must notify the Regional Administrator (or State Director, if appropriate) of such discharge. Such notification shall include such information and follow such procedures as the Regional Administrator (or State Director, if appropriate) may require.
(2) Any owner or operator who does not have a discharge subject to any toxic pollutant effluent standard at the time of such promulgation but who thereafter commences or intends to commence any activity which would result in such a discharge shall first notify the Regional Administrator (or State Director, if appropriate) in the manner herein provided at least 60 days prior to any such discharge.
(b) Upon receipt of any application for issuance or reissuance of a permit or for a modification of an existing permit for a discharge subject to a toxic pollutant effluent standard or prohibition the permitting authority shall proceed thereon in accordance with 40 CFR part 124 or 125, whichever is applicable.
(c)(1) Every permit which contains limitations based upon a toxic pollutant effluent standard or prohibition under this part is subject to revision following the completion of any proceeding revising such toxic pollutant effluent standard or prohibition regardless of the duration specified on the permit.
(2) For purposes of this section, all toxic pollutants for which standards are set under this part are deemed to be injurious to human health within the meaning of section 402(k) of the Act unless otherwise specified in the standard established for any particular pollutant.
(d)(1) Upon the compliance date for any section 307(a) toxic pollutant effluent standard or prohibition, each owner or operator of a discharge subject to such standard or prohibition shall comply with such monitoring, sampling, recording, and reporting conditions as the Regional Administrator (or State Director, if appropriate) may require for that discharge. Notice of such conditions shall be provided in writing to the owner or operator.
(2) In addition to any conditions required pursuant to paragraph (d)(1) of this section and to the extent not required in conditions contained in NPDES permits, within 60 days following the close of each calendar year each owner or operator of a discharge subject to any toxic standard or prohibition shall report to the Regional Administrator (or State Director, if appropriate) concerning the compliance of such discharges. Such report shall include, as a minimum, information concerning (i) relevant identification of the discharger such as name, location of facility, discharge points, receiving waters, and the industrial process or operation emitting the toxic pollutant; (ii) relevant conditions (pursuant to paragraph (d)(1) of this section or to an NPDES permit) as to flow, section 307(a) toxic pollutant concentrations, and section 307(a) toxic pollutant mass emission rate; (iii) compliance by the discharger with such conditions.
(3) When samples collected for analysis are composited, such samples shall be composited in proportion to the flow at time of collection and preserved in compliance with requirements of the Regional Administrator (or State Director, if appropriate), but shall include at least five samples, collected at approximately equal intervals throughout the working day.
(e)(1) Nothing in these regulations shall preclude a Regional Administrator from requiring in any permit a more stringent effluent limitation or standard pursuant to section 301(b)(1)(C) of the Act and implemented in 40 CFR 125.11 and other related provisions of 40 CFR part 125.
(2) Nothing in these regulations shall preclude the Director of a State Water Pollution Control Agency or interstate agency operating a National Pollutant Discharge Elimination System Program which has been approved by the Administrator pursuant to section 402 of the Act from requiring in any permit a more stringent effluent limitation or standard pursuant to section 301(b)(1)(C) of the Act and implemented in 40 CFR 124.42 and other related provisions of 40 CFR part 124.
(f) Any owner or operator of a facility which discharges a toxic pollutant to the navigable waters and to a publicly owned treatment system shall limit the summation of the mass emissions from both discharges to the less restrictive standard, either the direct discharge standard or the pretreatment standard; but in no case will this paragraph allow a discharge to the navigable waters greater than the toxic pollutant effluent standard established for a direct discharge to the navigable waters.
(g) In any permit hearing or other administrative proceeding relating to the implementation or enforcement of these standards, or any modification thereof, or in any judicial proceeding other than a petition for review of these standards pursuant to section 509(b)(1)(C) of the Act, the parties thereto may not contest the validity of any national standards established in this part, or the ambient water criterion established herein for any toxic pollutant.
(a) Upon the request of the owner or operator of a facility discharging a pollutant subject to a toxic pollutant effluent standard or prohibition, the Regional Administrator (or State Director, if appropriate) shall give credit, and shall adjust the effluent standard(s) in such permit to reflect credit for the toxic pollutant(s) in the owner's or operator's water supply if (1) the source of the owner's or operator's water supply is the same body of water into which the discharge is made and if (2) it is demonstrated to the Regional Administrator (or State Director, if appropriate) that the toxic pollutant(s) present in the owner's or operator's intake water will not be removed by any wastewater treatment systems whose design capacity and operation were such as to reduce toxic pollutants to the levels required by the applicable toxic pollutant effluent standards in the absence of the toxic pollutant in the intake water.
(b) Effluent limitations established pursuant to this section shall be calculated on the basis of the amount of section 307(a) toxic pollutant(s) present in the water after any water supply treatment steps have been performed by or for the owner or operator.
(c) Any permit which includes toxic pollutant effluent limitations established pursuant to this section shall also contain conditions requiring the permittee to conduct additional monitoring in the manner and locations determined by the Regional Administrator (or State Director, if appropriate) for those toxic pollutants for which the toxic pollutant effluent standards have been adjusted.
(a)
(2) Where he further determines that this is resulting in or may cause or contribute to significant adverse effects on aquatic or other organisms usually or potentially present, or on human health, he may issue to an owner or operator a permit or a permit modification containing a toxic pollutant effluent limitation at a more stringent level than that required by the standard set forth in these regulations. Any such action shall be taken pursuant to the procedural provisions of 40 CFR parts 124 and 125, as appropriate. In any proceeding in connection with such action the burden of proof and of going forward with evidence with regard to such more stringent effluent limitation shall be upon the Regional Administrator (or State Director, if appropriate) as the proponent of such more stringent effluent limitation.
(3) Evidence in such proceeding shall include at a minimum: An analysis using data and other information to demonstrate receiving water concentrations of the specified toxic pollutant, projections of the anticipated effects of the proposed modification on such receiving water concentrations, and the hydrologic and hydrographic
(b) Any effluent limitation in an NPDES permit which a State proposes to issue which is more stringent than the toxic pollutant effluent standards promulgated by the Administrator is subject to review by the Administrator under section 402(d) of the Act. The Administrator may approve or disapprove such limitation(s) or specify another limitation(s) upon review of any record of any proceedings held in connection with the permit issuance or modification and any other evidence available to him. If he takes no action within ninety days of his receipt of the notification of the action of the permit issuing authority and any record thereof, the action of the State permit issuing authority shall be deemed to be approved.
(a) The effluent standards or prohibitions set forth herein shall be complied with not later than one year after promulgation unless an earlier date is established by the Administrator for an industrial subcategory in the promulgation of the standards or prohibitions.
(b) Toxic pollutant effluent standards or prohibitions set forth herein shall become enforceable under sections 307(d) and 309 of the Act on the date established in paragraph (a) of this section regardless of proceedings in connection with the issuance of any NPDES permit or application therefor, or modification or renewal thereof.
(a)
(2)
(3) The ambient water criterion for aldrin/dieldrin in navigable waters is 0.003 µg/l.
(b)
(A) All discharges of process wastes; and
(B) All discharges from the manufacturing areas, loading and unloading areas, storage areas and other areas which are subject to direct contamination by aldrin/dieldrin as a result of the manufacturing process, including but not limited to:
(
(
(ii) These standards do not apply to stormwater runoff or other discharges from areas subject to contamination solely by fallout from air emissions of aldrin/dieldrin; or to stormwater runoff that exceeds that from the ten year 24-hour rainfall event.
(2)
(3)
(ii)
(c)
(A) All discharges of process wastes; and
(B) All discharges from the formulating areas, loading and unloading areas, storage areas and other areas
(
(
(ii) These standards do not apply to stormwater runoff or other discharges from areas subject to contamination solely by fallout from air emissions of aldrin/dieldrin; or to stormwater runoff that exceeds that from the ten year 24-hour rainfall event.
(2)
(3)
(ii)
(a)
(2)
(3) The ambient water criterion for DDT in navigable waters is 0.001 µg/l.
(b)
(A) All discharges of process wastes; and
(B) All discharges from the manufacturing areas, loading and unloading areas, storage areas and other areas which are subject to direct contamination by DDT as a result of the manufacturing process, including but not limited to:
(
(
(ii) These standards do not apply to stormwater runoff or other discharges from areas subject to contamination solely by fallout from air emissions of DDT; or to stormwater runoff that exceeds that from the ten year 24-hour rainfall event.
(2)
(3)
(ii)
(c)
(A) All discharges of process wastes; and
(B) All discharges from the formulating areas, loading and unloading areas, storage areas and other areas which are subject to direct contamination by DDT as a result of the formulating process, including but not limited to:
(
(
(ii) These standards do not apply to stormwater runoff or other discharges from areas subject to contamination solely by fallout from air emissions of DDT; or to stormwater runoff that exceeds that from the ten year 24-hour rainfall event.
(2)
(3)
(ii)
(a)
(2)
(3) The ambient water criterion for endrin in navigable waters is 0.004 µg/l.
(b)
(A) All discharges of process wastes; and
(B) All discharges from the manufacturing areas, loading and unloading areas, storage areas and other areas which are subject to direct contamination by endrin as a result of the manufacturing process, including but not limited to:
(
(
(ii) These standards do not apply to stormwater runoff or other discharges from areas subject to contamination solely by fallout from air emissions of endrin; or to stormwater runoff that exceeds that from the ten year 24-hour rainfall event.
(2)
(3)
(ii)
(iii)
(c)
(A) All discharges of process wastes; and
(B) All discharges from the formulating areas, loading and unloading areas, storage areas and other areas which are subject to direct contamination by endrin as a result of the formulating process, including but not limited to: (
(ii) These standards do not apply to stormwater runoff or other discharges from areas subject to contamination solely by fallout from air emissions of endrin; or to storm-water runoff that exceeds that from the ten year 24-hour rainfall event.
(2)
(3)
(ii) New sources—Endrin is prohibited in any discharge from any endrin formulator.
(d) The standards set forth in this section shall apply to the total combined weight or concentration of endrin, excluding any associated element or compound.
(a)
(2)
(3) The ambient water criterion for toxaphene in navigable waters is 0.005 µg/l.
(b)
(A) All discharges of process wastes; and
(B) All discharges from the manufacturing areas, loading and unloading areas, storage areas and other areas which are subject to direct contamination by toxaphene as a result of the manufacturing process, including but not limited to: (
(ii) These standards do not apply to stormwater runoff or other discharges from areas subject to contamination solely by fallout from air emissions of toxaphene; or to stormwater runoff that exceeds that from the ten year 24-hour rainfall event.
(2)
(3)
(ii)
(iii)
(c)
(A) All discharges of process wastes; and
(B) All discharges from the formulating areas, loading and unloading areas, storage areas and other areas which are subject to direct contamination by toxaphene as a result of the formulating process, including but not limited to: (
(ii) These standards do not apply to stormwater runoff or other discharges from areas subject to contamination solely by fallout from air emissions of toxaphene; or to stormwater runoff that exceeds that from the ten year 24-hour rainfall event.
(2)
(3)
(ii)
(d) The standards set forth in this section shall apply to the total combined weight or concentration of toxaphene, excluding any associated element or compound.
(a)
(2)
(3) The ambient water criterion for benzidine in navigable waters is 0.1 µg/l.
(b)
(A) All discharges into the navigable waters of process wastes, and
(B) All discharges into the navigable waters of wastes containing benzidine from the manufacturing areas, loading and unloading areas, storage areas, and other areas subject to direct contamination by benzidine or benzidine-containing product as a result of the manufacturing process, including but not limited to:
(
(
(ii) These standards do not apply to stormwater runoff or other discharges from areas subject to contamination solely by fallout from air emissions of benzidine; or to stormwater runoff that exceeds that from the ten year 24-hour rainfall event.
(2)
(3)
(ii)
(4) The standards set forth in this paragraph (b) shall apply to the total combined weight or concentration of benzidine, excluding any associated element or compound.
(c)
(A) All discharges into the navigable waters of process wastes, and
(B) All discharges into the navigable waters of wastes containing benzidine from the manufacturing areas, loading and unloading areas, storage areas, and other areas subject to direct contamination by benzidine or benzidine-containing product as a result of the manufacturing process, including but not limited to:
(
(
(ii) These standards do not apply to stormwater runoff or other discharges from areas subject to contamination solely by fallout from air emissions of benzidine; or to stormwater that exceeds that from the ten year 24-hour rainfall event.
(2)
(ii) Mass balance monitoring approach which requires the calculation of the benzidine concentration by dividing the total benzidine contained in dyes used during a working day (as certified in writing by the manufacturer) by the total quantity of water discharged during the working day.
(3)
(ii)
(4) The standards set forth in this paragraph (c) shall apply to the total combined concentrations of benzidine, excluding any associated element or compound.
(a)
(2)
(3)
(4) The ambient water criterion for PCBs in navigable waters is 0.001 µg/l.
(b)
(A) All discharges of process wastes;
(B) All discharges from the manufacturing or incinerator areas, loading and unloading areas, storage areas, and other areas which are subject to direct contamination by PCBs as a result of the manufacturing process, including but not limited to:
(
(
(ii) These standards do not apply to stormwater runoff or other discharges from areas subject to contamination solely by fallout from air emissions of PCBs; or to stormwater runoff that exceeds that from the ten-year 24-hour rainfall event.
(2) Analytical Method Acceptable—Environmental Protection Agency method specified in 40 CFR part 136 except that a 1-liter sample size is required to increase analytical sensitivity.
(3)
(ii)
(c)
(A) All discharges of process wastes; and
(B) All discharges from the manufacturing or incineration areas, loading and unloading areas, storage areas and other areas which are subject to direct contamination by PCBs as a result of the manufacturing process, including but not limited to:
(
(
(ii) These standards do not apply to stormwater runoff or other discharges from areas subject to contamination solely by fallout from air emissions of PCBs; or to stormwater runoff that exceeds that from the ten-year 24-hour rainfall event.
(2)
(3)
(ii)
(d)
(A) All discharges of process wastes; and
(B) All discharges from the manufacturing or incineration areas, loading and unloading areas, storage areas, and other areas which are subject to direct contamination by PCBs as a result of the manufacturing process, including but not limited to:
(
(
(ii) These standards do not apply to stormwater runoff or other discharges from areas subject to contamination solely by fallout from air emissions of PCBs; or to stormwater runoff that exceeds that from the ten-year 24-hour rainfall event.
(2)
(3)
(ii)
(e)
33 U.S.C. 1251
(a) This subpart establishes policies and program requirements for water quality planning, management and implementation under sections 106, 205(j), non-construction management 205(g), 208, 303 and 305 of the Clean Water Act. The Water Quality Management (WQM) process described in the Act and in this regulation provides the authority for a consistent national approach for maintaining, improving and protecting water quality while allowing States to implement the most effective individual programs. The process is implemented jointly by EPA, the States, interstate agencies, and areawide, local and regional planning organizations.
(b) Water quality standards (WQS) are the State's goals for individual water bodies and provide the legal basis for control decisions under the Act. Water quality monitoring activities provide the chemical, physical and biological data needed to determine the present quality of a State's waters and to identify the sources of pollutants in those waters. The primary assessment of the quality of a State's water is contained in its biennial Report to Congress required by section 305(b) of the Act.
(c) This report and other assessments of water quality are used in the State's WQM plans to identify priority water quality problems. These plans also contain the results of the State's analyses and management decisions which are necessary to control specific sources of pollution. The plans recommend control measures and designated management agencies (DMAs) to attain the goals established in the State's water quality standards.
(d) These control measures are implemented by issuing permits, building publicly-owned treatment works (POTWs), instituting best management practices for nonpoint sources of pollution and other means. After control measures are in place, the State evaluates the extent of the resulting improvements in water quality, conducts additional data gathering and planning to determine needed modifications in control measures and again institutes control measures.
(e) This process is a dynamic one, in which requirements and emphases vary over time. At present, States have completed WQM plans which are generally comprehensive in geographic and programmatic scope. Technology based controls are being implemented for most point sources of pollution. However, WQS have not been attained in many water bodies and are threatened in others.
(f) Present continuing planning requirements serve to identify these critical water bodies, develop plans for achieving higher levels of abatement and specify additional control measures. Consequently, this regulation reflects a programmatic emphasis on concentrating planning and abatement activities on priority water quality issues and geographic areas. EPA will focus its grant funds on activities designed to address these priorities. Annual work programs negotiated between EPA and State and interstate agencies will reflect this emphasis.
(a) This subpart applies to all State, eligible Indian Tribe, interstate, areawide and regional and local CWA water quality planning and management activities undertaken on or after February 11, 1985 including all updates and continuing certifications for approved Water Quality Management (WQM) plans developed under sections 208 and 303 of the Act.
(b) Planning and management activities undertaken prior to February 11, 1985 are governed by the requirements of the regulations in effect at the time of the last grant award.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
A water quality standard (WQS) defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria necessary to protect the uses. States and EPA adopt WQS to protect public health or welfare, enhance the quality of water and serve the purposes of the Clean Water Act (CWA).
(a) In accordance with section 106(e)(1), States must establish appropriate monitoring methods and procedures (including biological monitoring) necessary to compile and analyze data on the quality of waters of the United States and, to the extent practicable, ground-waters. This requirement need not be met by Indian Tribes. However, any monitoring and/or analysis activities undertaken by a Tribe must be performed in accordance with EPA's quality assurance/quality control guidance.
(b) The State's water monitoring program shall include collection and analysis of physical, chemical and biological data and quality assurance and control programs to assure scientifically valid data. The uses of these data include determining abatement and control priorities; developing and reviewing water quality standards, total maximum daily loads, wasteload allocations and load allocations; assessing compliance with National Pollutant Discharge Elimination System (NPDES) permits by dischargers; reporting information to the public through the section 305(b) report and reviewing site-specific monitoring efforts.
(a)
(b)
(1) The process for developing effluent limitations and schedules of compliance at least as stringent as those required by sections 301(b) (1) and (2), 306 and 307, and at least stringent as any requirements contained in applicable water quality standards in effect under authority of section 303 of the Act.
(2) The process for incorporating elements of any applicable areawide waste treatment plans under section 208, and applicable basin plans under section 209 of the Act.
(3) The process for developing total maximum daily loads (TMDLs) and individual water quality based effluent limitations for pollutants in accordance with section 303(d) of the Act and § 130.7(a) of this regulation.
(4) The process for updating and maintaining Water Quality Management (WQM) plans, including schedules for revision.
(5) The process for assuring adequate authority for intergovernmental cooperation in the implementation of the State WQM program.
(6) The process for establishing and assuring adequate implementation of new or revised water quality standards, including schedules of compliance, under section 303(c) of the Act.
(7) The process for assuring adequate controls over the disposition of all residual waste from any water treatment processing.
(8) The process for developing an inventory and ranking, in order of priority of needs for construction of waste treatment works required to meet the applicable requirements of sections 301 and 302 of the Act.
(9) The process for determining the priority of permit issuance.
(c)
(a)
(b)
(c)
(1)
(2)
(3)
(4)
(ii) Regulatory programs shall be identified where they are determined to be necessary by the State to attain or maintain an approved water use or where non-regulatory approaches are inappropriate in accomplishing that objective.
(iii) BMPs shall be identified for the nonpoint sources identified in section 208(b)(2)(F)-(K) of the Act and other nonpoint sources as follows:
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(iv) The nonpoint source plan elements outlined in § 130.6(c) (4)(iii)(A)(G) of this regulation shall be the basis of water quality activities implemented through agreements or memoranda of understanding between EPA and other departments, agencies or instrumentalities of the United States in accordance with section 304(k) of the Act.
(5)
(6)
(7)
(8)
(9)
(i) Overall goals, policies and legislative authorities for protection of ground-water.
(ii) Monitoring and resource assessment programs in accordance with section 106(e)(1) of the Act.
(iii) Programs to control sources of contamination of ground-water including Federal programs delegated to the State and additional programs authorized in State statutes.
(iv) Procedures for coordination of ground-water protection programs among State agencies and with local and Federal agencies.
(v) Procedures for program management and administration including provision of program financing, training and technical assistance, public participation, and emergency management.
(d)
(1) The Indian Tribe has a governing body carrying out substantial governmental duties and powers;
(2) The functions to be exercised by the Indian Tribe pertain to the management and protection of water resources which are held by an Indian Tribe, held by the United States in trust for Indians, held by a member of an Indian Tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of an Indian reservation; and
(3) The Indian Tribe is reasonably expected to be capable, in the Regional Administrator's judgment, of carrying out the functions to be exercised in a manner consistent with the terms and purposes of the Clean Water Act and applicable regulations.
(e)
(f)
(a)
(b) Identification and priority setting for water quality-limited segments still requiring TMDLs.
(1) Each State shall identify those water quality-limited segments still requiring TMDLs within its boundaries for which:
(i) Technology-based effluent limitations required by sections 301(b), 306, 307, or other sections of the Act;
(ii) More stringent effluent limitations (including prohibitions) required by either State or local authority preserved by section 510 of the Act, or Federal authority (law, regulation, or treaty); and
(iii) Other pollution control requirements (e.g., best management practices) required by local, State, or Federal authority are not stringent enough to implement any water quality standards (WQS) applicable to such waters.
(2) Each State shall also identify on the same list developed under paragraph (b)(1) of this section those water quality-limited segments still requiring TMDLs or parts thereof within its boundaries for which controls on thermal discharges under section 301 or State or local requirements are not stringent enough to assure protection and propagation of a balanced indigenous population of shellfish, fish and wildlife.
(3) For the purposes of listing waters under § 130.7(b), the term “water quality standard applicable to such waters” and “applicable water quality standards” refer to those water quality standards established under section 303 of the Act, including numeric criteria, narrative criteria, waterbody uses, and antidegradation requirements.
(4) The list required under §§ 130.7(b)(1) and 130.7(b)(2) of this section shall include a priority ranking for all listed water quality-limited segments still requiring TMDLs, taking into account the severity of the pollution and the uses to be made of such waters and shall identify the pollutants causing or expected to cause violations of the applicable water quality standards. The priority ranking shall specifically include the identification of waters targeted for TMDL development in the next two years.
(5) Each State shall assemble and evaluate all existing and readily available water quality-related data and information to develop the list required by §§ 130.7(b)(1) and 130.7(b)(2). At a minimum “all existing and readily available water quality-related data and information” includes but is not limited to all of the existing and readily available data and information about the following categories of waters:
(i) Waters identified by the State in its most recent section 305(b) report as “partially meeting” or “not meeting” designated uses or as “threatened”;
(ii) Waters for which dilution calculations or predictive models indicate nonattainment of applicable water quality standards;
(iii) Waters for which water quality problems have been reported by local, state, or federal agencies; members of the public; or academic institutions. These organizations and groups should be actively solicited for research they may be conducting or reporting. For example, university researchers, the United States Department of Agriculture, the National Oceanic and Atmospheric Administration, the United States Geological Survey, and the United States Fish and Wildlife Service are good sources of field data; and
(iv) Waters identified by the State as impaired or threatened in a nonpoint assessment submitted to EPA under section 319 of the CWA or in any updates of the assessment.
(6) Each State shall provide documentation to the Regional Administrator to support the State's determination to list or not to list its waters as required by §§ 130.7(b)(1) and 130.7(b)(2). This documentation shall be submitted to the Regional Administrator together with the list required by §§ 130.7(b)(1) and 130.7(b)(2) and shall include at a minimum:
(i) A description of the methodology used to develop the list; and
(ii) A description of the data and information used to identify waters, including a description of the data and information used by the State as required by § 130.7(b)(5); and
(iii) A rationale for any decision to not use any existing and readily available data and information for any one of the categories of waters as described in § 130.7(b)(5); and
(iv) Any other reasonable information requested by the Regional Administrator. Upon request by the Regional Administrator, each State must demonstrate good cause for not including a water or waters on the list. Good cause includes, but is not limited to, more recent or accurate data; more sophisticated water quality modeling; flaws in the original analysis that led to the water being listed in the categories in § 130.7(b)(5); or changes in conditions, e.g., new control equipment, or elimination of discharges.
(c) Development of TMDLs and individual water quality based effluent limitations.
(1) Each State shall establish TMDLs for the water quality limited segments identified in paragraph (b)(1) of this section, and in accordance with the priority ranking. For pollutants other than heat, TMDLs shall be established at levels necessary to attain and maintain the applicable narrative and numerical WQS with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. Determinations of TMDLs shall take into account critical conditions for stream flow, loading, and water quality parameters.
(i) TMDLs may be established using a pollutant-by-pollutant or biomonitoring approach. In many cases both techniques may be needed. Site-specific information should be used wherever possible.
(ii) TMDLs shall be established for all pollutants preventing or expected to prevent attainment of water quality standards as identified pursuant to paragraph (b)(1) of this section. Calculations to establish TMDLs shall be subject to public review as defined in the State CPP.
(2) Each State shall estimate for the water quality limited segments still requiring TMDLs identified in paragraph (b)(2) of this section, the total maximum daily thermal load which cannot be exceeded in order to assure protection and propagation of a balanced, indigenous population of shellfish, fish and wildlife. Such estimates shall take
(d)
(2) The Regional Administrator shall either approve or disapprove such listing and loadings not later than 30 days after the date of submission. The Regional Administrator shall approve a list developed under § 130.7(b) that is submitted after the effective date of this rule only if it meets the requirements of § 130.7(b). If the Regional Administrator approves such listing and loadings, the State shall incorporate them into its current WQM plan. If the Regional Administrator disapproves such listing and loadings, he shall, not later than 30 days after the date of such disapproval, identify such waters in such State and establish such loads for such waters as determined necessary to implement applicable WQS. The Regional Administrator shall promptly issue a public notice seeking comment on such listing and loadings. After considering public comment and making any revisions he deems appropriate, the Regional Administrator shall transmit the listing and loads to the State, which shall incorporate them into its current WQM plan.
(e) For the specific purpose of developing information and as resources allow, each State shall identify all segments within its boundaries which it has not identified under paragraph (b) of this section and estimate for such waters the TMDLs with seasonal variations and margins of safety, for those pollutants which the Regional Administrator identifies under section 304(a)(2) as suitable for such calculation and for thermal discharges, at a level that would assure protection and propagation of a balanced indigenous population of fish, shellfish and wildlife. However, there is no requirement for such loads to be submitted to EPA for approval, and establishing TMDLs for those waters identified in paragraph (b) of this section shall be given higher priority.
(a) Each State shall prepare and submit biennially to the Regional Administrator a water quality report in accordance with section 305(b) of the Act. The water quality report serves as the primary assessment of State water quality. Based upon the water quality data and problems identified in the 305(b) report, States develop water quality management (WQM) plan elements to help direct all subsequent control activities. Water quality problems identified in the 305(b) report should be analyzed through water quality management planning leading to the development of alternative controls and procedures for problems identified in the latest 305(b) report. States may also use the 305(b) report to describe ground-water quality and to guide development of ground-water plans and programs. Water quality problems identified in the 305(b) report should be emphasized and reflected in the State's WQM plan and annual work program under sections 106 and 205(j) of the Clean Water Act.
(b) Each such report shall include but is not limited to the following:
(1) A description of the water quality of all waters of the United States and the extent to which the quality of waters provides for the protection and propagation of a balanced population of shellfish, fish, and wildlife and allows recreational activities in and on the water.
(2) An estimate of the extent to which CWA control programs have improved water quality or will improve water quality for the purposes of paragraph (b)(1) of this section, and recommendations for future actions necessary and identifications of waters needing action.
(3) An estimate of the environmental, economic and social costs and benefits needed to achieve the objectives of the CWA and an estimate of the date of such achievement.
(4) A description of the nature and extent of nonpoint source pollution and recommendations of programs needed to control each category of nonpoint sources, including an estimate of implementation costs.
(5) An assessment of the water quality of all publicly owned lakes, including the status and trends of such water quality as specified in section 314(a)(1) of the Clean Water Act.
(c) States may include a description of the nature and extent of ground-water pollution and recommendations of State plans or programs needed to maintain or improve ground-water quality.
(d) In the years in which it is prepared the biennial section 305(b) report satisfies the requirement for the annual water quality report under section 205(j). In years when the 305(b) report is not required, the State may satisfy the annual section 205(j) report requirement by certifying that the most recently submitted section 305(b) report is current or by supplying an update of the sections of the most recently submitted section 305(b) report which require updating.
(a)
(b)
(1) The areawide agency requests such cancellation; or
(2) The areawide agency fails to meet its planning requirements as specified in grant agreements, contracts or memoranda of understanding; or
(3) The areawide agency no longer has the resources or the commitment to continue water quality planning activities within the designated boundaries.
(c)
(d)
(a) The following must be submitted regularly by the States to EPA:
(1) The section 305(b) report, in FY 84 and every two years thereafter, and the annual section 205(j) certification or update of the 305(b) water quality report; (Approved by OMB under the control number 2040-0071)
(2) The annual State work program(s) under sections 106 and 205(j) of the Act; and (Approved by OMB under the control number 2010-0004)
(3) Revisions or additions to water quality standards (WQS) (303(c)). (Approved by OMB under 2040-0049)
(b) The Act also requires that each State initially submit to EPA and revise as necessary the following:
(1) Continuing planning process (CPP) (303(e));
(2) Identification of water quality-limited waters still requiring TMDLs (section 303(d)), pollutants, and the priority ranking including waters targeted for TMDL development within the next two years as required under § 130.7(b) in accordance with the schedule set for in § 130.7(d)(1).
(3) Total maximum daily loads (TMDLs) (303(d)); and
(4) Water quality management (WQM) plan and certified and approved WQM plan updates (208, 303(e)). (Paragraph (b)(1), (4) approved by OMB under the control number 2010-0004).
(c) The form and content of required State submittals to EPA may be tailored to reflect the organization and needs of the State, as long as the requirements and purposes of the Act, this part and, where applicable, 40 CFR parts 29, 30, 33 and 35, subparts A and J are met. The need for revision and schedule of submittals shall be agreed to annually with EPA as the States annual work program is developed.
(d) Not later than February 4, 1989, each State shall submit to EPA for review, approval, and implementation—
(1) A list of those waters within the State which after the application of effluent limitations required under section 301(b)(2) of the CWA cannot reasonably be anticipated to attain or maintain (i) water quality standards for such waters reviewed, revised, or adopted in accordance with section 303(c)(2)(B) of the CWA, due to toxic pollutants, or (ii) that water quality which shall assure protection of public health, public water supplies, agricultural and industrial uses, and the protection and propagation of a balanced population of shellfish, fish and wildlife, and allow recreational activities in and on the water;
(2) A list of all navigable waters in such State for which the State does not expect the applicable standard under section 303 of the CWA will be achieved after the requirements of sections 301(b), 306, and 307(b) are met, due entirely or substantially to discharges from point sources of any toxic pollutants listed pursuant to section 307(a);
(3) For each segment of navigable waters included on such lists, a determination of the specific point source discharging any such toxic pollutant which is believed to be preventing or impairing such water quality and the amount of each such toxic pollutant discharged by each such source.
(4) For the purposes of listing waters under § 130.10(d)(2),
(5) If a water meets either of the two conditions listed below the water must be listed under § 130.10(d)(2) on the grounds that the applicable standard is not achieved or expected to be achieved due entirely or substantially to discharges from point sources.
(i) Existing or additional water quality-based limits on one or more point sources would result in the achievement of an applicable water quality standard for a toxic pollutant; or
(ii) The discharge of a toxic pollutant from one or more point sources, regardless of any nonpoint source contribution of the same pollutant, is sufficient to cause or is expected to cause an excursion above the applicable water quality standard for the toxic pollutant.
(6) Each state shall assemble and evaluate all existing and readily available water quality-related data and information and each state shall develop the lists required by paragraphs (d)(1), (2), and (3) of this section based upon this data and information. At a minimum, all existing and readily available water quality-related data and information includes, but is not limited to, all of the existing and readily available data about the following categories of waters in the state:
(i) Waters where fishing or shellfish bans and/or advisories are currently in effect or are anticipated.
(ii) Waters where there have been repeated fishkills or where abnormalities (cancers, lesions, tumors, etc.) have been observed in fish or other aquatic life during the last ten years.
(iii) Waters where there are restrictions on water sports or recreational contact.
(iv) Waters identified by the state in its most recent state section 305(b) report as either “partially achieving” or “not achieving” designated uses.
(v) Waters identified by the states under section 303(d) of the CWA as waters needing water quality-based controls.
(vi) Waters identified by the state as priority waterbodies. (State Water Quality Management plans often include priority waterbody lists which are those waters that most need water pollution control decisions to achieve water quality standards or goals.)
(vii) Waters where ambient data indicate potential or actual exceedances of water quality criteria due to toxic pollutants from an industry classified as a primary industry in appendix A of 40 CFR part 122.
(viii) Waters for which effluent toxicity test results indicate possible or actual exceedances of state water quality standards, including narrative “free from” water quality criteria or EPA water quality criteria where state criteria are not available.
(ix) Waters with primary industrial major dischargers where dilution analyses indicate exceedances of state narrative or numeric water quality criteria (or EPA water quality criteria where state standards are not available) for toxic pollutants, ammonia, or chlorine. These dilution analyses must be based on estimates of discharge levels derived from effluent guidelines development documents, NPDES permits or permit application data (e.g., Form 2C), Discharge Monitoring Reports (DMRs), or other available information.
(x) Waters with POTW dischargers requiring local pretreatment programs where dilution analyses indicate exceedances of state water quality criteria (or EPA water quality criteria where state water quality criteria are not available) for toxic pollutants, ammonia, or chlorine. These dilution analyses must be based upon data from NPDES permits or permit applications (e.g., Form 2C), Discharge Monitoring Reports (DMRs), or other available information.
(xi) Waters with facilities not included in the previous two categories such as major POTWs, and industrial minor dischargers where dilution analyses indicate exceedances of numeric
(xii) Waters classified for uses that will not support the “fishable/swimmable” goals of the Clean Water Act.
(xiii) Waters where ambient toxicity or adverse water quality conditions have been reported by local, state, EPA or other Federal Agencies, the private sector, public interest groups, or universities. These organizations and groups should be actively solicited for research they may be conducting or reporting. For example, university researchers, the United States Department of Agriculture, the National Oceanic and Atmospheric Administration, the United States Geological Survey, and the United States Fish and Wildlife Service are good sources of field data and research.
(xiv) Waters identified by the state as impaired in its most recent Clean Lake Assessments conducted under section 314 of the Clean Water Act.
(xv) Waters identified as impaired by nonpoint sources in the
(xvi) Surface waters impaired by pollutants from hazardous waste sites on the National Priority List prepared under section 105(8)(A) of CERCLA.
(7) Each state shall provide documentation to the Regional Administrator to support the state's determination to list or not to list waters as required by paragraphs (d)(1), (d)(2) and (d)(3) of this section. This documentation shall be submitted to the Regional Administrator together with the lists required by paragraphs (d)(1), (d)(2), and (d)(3) of this section and shall include as a minimum:
(i) A description of the methodology used to develop each list;
(ii) A description of the data and information used to identify waters and sources including a description of the data and information used by the state as required by paragraph (d)(6) of this section;
(iii) A rationale for any decision not to use any one of the categories of existing and readily available data required by paragraph (d)(6) of this section; and
(iv) Any other information requested by the Regional Administrator that is reasonable or necessary to determine the adequacy of a state's lists. Upon request by the Regional Administrator, each state must demonstrate good cause for not including a water or waters on one or more lists. Good cause includes, but is not limited to, more recent or accurate data; more accurate water quality modeling; flaws in the original analysis that led to the water being identified in a category in § 130.10(d)(6); or changes in conditions, e.g., new control equipment, or elimination of discharges.
(8) The Regional Administrator shall approve or disapprove each list required by paragraphs (d)(1), (d)(2), and (d)(3) of this section no later than June 4, 1989. The Regional Administrator shall approve each list required under paragraphs (d)(1), (d)(2), and (d)(3) of this section only if it meets the regulatory requirements for listing under paragraphs (d)(1), (d)(2), and (d)(3) of this section and if the state has met all the requirements of paragraphs (d)(6) and (d)(7) of this section.
(9) If a state fails to submit lists in accordance with paragraph (d) of this section or the Regional Administrator does not approve the lists submitted by such state in accordance with this paragraph, then not later than June 4, 1990, the Regional Administrator, in cooperation with such state, shall implement the requirements of CWA section 304(l) (1) and (2) in such state.
(10) If the Regional Administrator disapproves a state's decision with respect to one or more of the waters required under paragraph (d) (1), (2), or (3) of this section, or one or more of the
(i) The name and address of the EPA office that reviews the state's submittals.
(ii) A brief description of the section 304(l) process.
(iii) A list of waters, point sources and pollutants disapproved under this paragraph.
(iv) If the Regional Administrator determines that a state did not provide adequate public notice and an opportunity to comment on the lists prepared under this section, or if the Regional Administrator chooses to exercise his or her discretion, a list of waters, point sources, or pollutants approved under this paragraph.
(v) The name, address, and telephone number of the person at the Regional Office from whom interested persons may obtain more information.
(vi) Notice that written petitions or comments are due within 120 days.
(11) As soon as practicable, but not later than June 4, 1990, the Regional Office shall issue a response to petitions or comments received under paragraph (d)(10) of this section. Notice shall be given in the same manner as notice described in paragraph (d)(10) of this section, except for the following changes to the notice of approvals and disapprovals:
(i) The lists of waters, point sources and pollutants must reflect any changes made pursuant to comments or petitions received.
(ii) A brief description of the subsequent steps in the section 304(l) process shall be included.
(a) State agencies may apply for grants under sections 106, 205(j) and 205(g) to carry out water quality planning and management activities. Interstate agencies may apply for grants under section 106 to carry out water quality planning and management activities. Local or regional planning organizations may request 106 and 205(j) funds from a State for planning and management activities. Grant administrative requirements for these funds appear in 40 CFR parts 25, 29, 30, 33 and 35, subparts A and J.
(b) Grants under section 106 may be used to fund a wide range of activities, including but not limited to assessments of water quality, revision of water quality standards (WQS), development of alternative approaches to control pollution, implementation and enforcement of control measures and development or implementation of ground water programs. Grants under section 205(j) may be used to fund water quality management (WQM) planning activities but may not be used to fund implementation of control measures (see part 35, subpart A). Section 205(g) funds are used primarily to manage the wastewater treatment works construction grants program pursuant to the provisions of 40 CFR part 35, subpart J. A State may also use part of the 205(g) funds to administer approved permit programs under sections 402 and 404, to administer a statewide waste treatment management program under section 208(b)(4) and to manage waste treatment construction grants for small communities.
(c) Grant work programs for water quality planning and management shall describe geographic and functional priorities for use of grant funds in a manner which will facilitate EPA review of the grant application and subsequent evaluation of work accomplished with the grant funds. A State's 305(b) Report, WQM plan and other
(d) State work programs under sections 106, 205(j) and 205(g) shall be coordinated in a manner which indicates the funding from these grants dedicated to major functions, such as permitting, enforcement, monitoring, planning and standards, nonpoint source implementation, management of construction grants, operation and maintenance of treatment works, ground-water, emergency response and program management. States shall also describe how the activities funded by these grants are used in a coordinated manner to address the priority water quality problems identified in the State's water quality assessment under section 305(b).
(e) EPA, States, areawide agencies, interstate agencies, local and Regional governments, and designated management agencies (DMAs) are joint participants in the water pollution control program. States may enter into contractual arrangements or intergovernmental agreements with other agencies concerning the performance of water quality planning and management tasks. Such arrangements shall reflect the capabilities of the respective agencies and shall efficiently utilize available funds and funding eligibilities to meet Federal requirements commensurate with State and local priorities. State work programs under section 205(j) shall be developed jointly with local, Regional and other comprehensive planning organizations.
(a) Relationship to the National Pollutant Discharge Elimination System (NPDES) program. In accordance with section 208(e) of the Act, no NPDES permit may be issued which is in conflict with an approved Water Quality Management (WQM) plan. Where a State has assumed responsibility for the administration of the permit program under section 402, it shall assure consistency with the WQM plan.
(b) Relationship to the municipal construction grants program. In accordance with sections 205(j), 216 and 303(e)(3)(H) of the Act, each State shall develop a system for setting priorities for funding construction of municipal wastewater treatment facilities under section 201 of the Act. The State, or the agency to which the State has delegated WQM planning functions, shall review each facility plan in its area for consistency with the approved WQM plan. Under section 208(d) of the Act, after a waste treatment management agency has been designated and a WQM plan approved, section 201 construction grant funds may be awarded only to those agencies for construction of treatment works in conformity with the approved WQM plan.
(c) Relationship to Federal activities—Each department, agency or instrumentality of the executive, legislative and judicial branches of the Federal Government having jurisdiction over any property or facility or engaged in any activity resulting, or which may result, in the discharge or runoff of pollutants shall comply with all Federal, State, interstate and local requirements, administrative authority, and process and sanctions respecting the control and abatement of water pollution in the same manner and extent as any non-governmental entity in accordance with section 313 of the CWA.
The Regional Administrator shall process an application of an Indian Tribe submitted under § 130.6(d) in a timely manner. He shall promptly notify the Indian Tribe of receipt of the application.
33 U.S.C. 1251
This part describes the requirements and procedures for developing, reviewing, revising, and approving water quality standards by the States as authorized by section 303(c) of the Clean Water Act. Additional specific procedures for developing, reviewing, revising, and approving water quality standards for Great Lakes States or Great Lakes Tribes (as defined in 40 CFR 132.2) to conform to section 118 of the Clean Water Act and 40 CFR part 132, are provided in 40 CFR part 132.
A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria necessary to protect the uses. States adopt water quality standards to protect public health or welfare, enhance the quality of water and serve the purposes of the Clean Water Act (the Act). “Serve the purposes of the Act” (as defined in sections 101(a)(2) and 303(c) of the Act) means that water quality standards should, wherever attainable, provide water quality for the protection and propagation of fish, shellfish and wildlife and for recreation in and on the water and take into consideration their use and value of public water supplies, propagation of fish, shellfish, and wildlife, recreation in and on the water, and agricultural, industrial, and other purposes including navigation.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(a) States (as defined in § 131.3) are responsible for reviewing, establishing, and revising water quality standards. As recognized by section 510 of the Clean Water Act, States may develop water quality standards more stringent than required by this regulation. Consistent with section 101(g) and 518(a) of the Clean Water Act, water quality standards shall not be construed to supersede or abrogate rights to quantities of water.
(b) States (as defined in § 131.3) may issue certifications pursuant to the requirements of Clean Water Act section 401. Revisions adopted by States shall be applicable for use in issuing State certifications consistent with the provisions of § 131.21(c).
(c) Where EPA determines that a Tribe is eligible to the same extent as a State for purposes of water quality standards, the Tribe likewise is eligible to the same extent as a State for purposes of certifications conducted under Clean Water Act section 401.
(a) Under section 303(c) of the Act, EPA is to review and to approve or disapprove State-adopted water quality standards. The review involves a determination of:
(1) Whether the State has adopted water uses which are consistent with the requirements of the Clean Water Act;
(2) Whether the State has adopted criteria that protect the designated water uses;
(3) Whether the State has followed its legal procedures for revising or adopting standards;
(4) Whether the State standards which do not include the uses specified in section 101(a)(2) of the Act are based upon appropriate technical and scientific data and analyses, and
(5) Whether the State submission meets the requirements included in § 131.6 of this part and, for Great Lakes States or Great Lakes Tribes (as defined in 40 CFR 132.2) to conform to section 118 of the Act, the requirements of 40 CFR part 132.
(b) If EPA determines that the State's or Tribe's water quality standards are consistent with the factors listed in paragraphs (a)(1) through (a)(5) of this section, EPA approves the standards. EPA must disapprove the State's or Tribe's water quality standards and promulgate Federal standards under section 303(c)(4), and for Great Lakes States or Great Lakes Tribes under section 118(c)(2)(C) of the Act, if State or Tribal adopted standards are not consistent with the factors listed in paragraphs (a)(1) through (a)(5) of this section. EPA may also promulgate a new or revised standard when necessary to meet the requirements of the Act.
(c) Section 401 of the Clean Water Act authorizes EPA to issue certifications pursuant to the requirements of section 401 in any case where a State or interstate agency has no authority for issuing such certifications.
The following elements must be included in each State's water quality standards submitted to EPA for review:
(a) Use designations consistent with the provisions of sections 101(a)(2) and 303(c)(2) of the Act.
(b) Methods used and analyses conducted to support water quality standards revisions.
(c) Water quality criteria sufficient to protect the designated uses.
(d) An antidegradation policy consistent with § 131.12.
(e) Certification by the State Attorney General or other appropriate legal authority within the State that the water quality standards were duly adopted pursuant to State law.
(f) General information which will aid the Agency in determining the adequacy of the scientific basis of the standards which do not include the uses specified in section 101(a)(2) of the Act as well as information on general policies applicable to State standards which may affect their application and implementation.
(a) Where disputes between States and Indian Tribes arise as a result of differing water quality standards on common bodies of water, the lead EPA Regional Administrator, as determined based upon OMB circular A-105, shall be responsible for acting in accordance with the provisions of this section.
(b) The Regional Administrator shall attempt to resolve such disputes where:
(1) The difference in water quality standards results in unreasonable consequences;
(2) The dispute is between a State (as defined in § 131.3(j) but exclusive of all Indian Tribes) and a Tribe which EPA has determined is eligible to the same extent as a State for purposes of water quality standards;
(3) A reasonable effort to resolve the dispute without EPA involvement has been made;
(4) The requested relief is consistent with the provisions of the Clean Water Act and other relevant law;
(5) The differing State and Tribal water quality standards have been adopted pursuant to State and Tribal law and approved by EPA; and
(6) A valid written request has been submitted by either the Tribe or the State.
(c) Either a State or a Tribe may request EPA to resolve any dispute which satisfies the criteria of paragraph (b) of this section. Written requests for EPA involvement should be
(1) A concise statement of the unreasonable consequences that are alleged to have arisen because of differing water quality standards;
(2) A concise description of the actions which have been taken to resolve the dispute without EPA involvement;
(3) A concise indication of the water quality standards provision which has resulted in the alleged unreasonable consequences;
(4) Factual data to support the alleged unreasonable consequences; and
(5) A statement of the relief sought from the alleged unreasonable consequences.
(d) Where, in the Regional Administrator's judgment, EPA involvement is appropriate based on the factors of paragraph (b) of this section, the Regional Administrator shall, within 30 days, notify the parties in writing that he/she is initiating an EPA dispute resolution action and solicit their written response. The Regional Administrator shall also make reasonable efforts to ensure that other interested individuals or groups have notice of this action. Such efforts shall include but not be limited to the following:
(1) Written notice to responsible Tribal and State Agencies, and other affected Federal agencies,
(2) Notice to the specific individual or entity that is alleging that an unreasonable consequence is resulting from differing standards having been adopted on a common body of water,
(3) Public notice in local newspapers, radio, and television, as appropriate,
(4) Publication in trade journal newsletters, and
(5) Other means as appropriate.
(e) If in accordance with applicable State and Tribal law an Indian Tribe and State have entered into an agreement that resolves the dispute or establishes a mechanism for resolving a dispute, EPA shall defer to this agreement where it is consistent with the Clean Water Act and where it has been approved by EPA.
(f) EPA dispute resolution actions shall be consistent with one or a combination of the following options:
(1)
(i) Where the State and Tribe agree to participate in the dispute resolution process, mediation with the intent to establish Tribal-State agreements, consistent with Clean Water Act section 518(d), shall normally be pursued as a first effort.
(ii) Mediators shall act as neutral facilitators whose function is to encourage communication and negotiation between all parties to the dispute.
(iii) Mediators may establish advisory panels, to consist in part of representatives from the affected parties, to study the problem and recommend an appropriate solution.
(iv) The procedure and schedule for mediation of individual disputes shall be determined by the mediator in consultation with the parties.
(v) If formal public hearings are held in connection with the actions taken under this paragraph, Agency requirements at 40 CFR 25.5 shall be followed.
(2)
(i) The arbitrator or arbitration panel shall conduct one or more private or public meetings with the parties and actively solicit information pertaining to the effects of differing water quality permit requirements on upstream and downstream dischargers, comparative risks to public health and the environment, economic impacts, present and historical water uses, the quality of the waters subject to such
(ii) Following consideration of relevant factors as defined in paragraph (f)(2)(i) of this section, the arbitrator or arbitration panel shall have the authority and responsibility to provide all parties and the Regional Administrator with a written recommendation for resolution of the dispute. Arbitration panel recommendations shall, in general, be reached by majority vote. However, where the parties agree to binding arbitration, or where required by the Regional Administrator, recommendations of such arbitration panels may be unanimous decisions. Where binding or non-binding arbitration panels cannot reach a unanimous recommendation after a reasonable period of time, the Regional Administrator may direct the panel to issue a non-binding decision by majority vote.
(iii) The arbitrator or arbitration panel members may consult with EPA's Office of General Counsel on legal issues, but otherwise shall have no
(iv) The parties are not obligated to abide by the arbitrator's or arbitration panel's recommendation unless they voluntarily entered into a binding agreement to do so.
(v) If a party to the dispute believes that the arbitrator or arbitration panel has recommended an action contrary to or inconsistent with the Clean Water Act, the party may appeal the arbitrator's recommendation to the Regional Administrator. The request for appeal must be in writing and must include a description of the statutory basis for altering the arbitrator's recommendation.
(vi) The procedure and schedule for arbitration of individual disputes shall be determined by the arbitrator or arbitration panel in consultation with parties.
(vii) If formal public hearings are held in connection with the actions taken under this paragraph, Agency requirements at 40 CFR 25.5 shall be followed.
(3)
(g)
(1)
(2)
(a) The Regional Administrator, as determined based on OMB Circular A-105, may accept and approve a tribal application for purposes of administering a water quality standards program if the Tribe meets the following criteria:
(1) The Indian Tribe is recognized by the Secretary of the Interior and meets the definitions in § 131.3 (k) and (l),
(2) The Indian Tribe has a governing body carrying out substantial governmental duties and powers,
(3) The water quality standards program to be administered by the Indian Tribe pertains to the management and protection of water resources which are within the borders of the Indian reservation and held by the Indian Tribe, within the borders of the Indian reservation and held by the United States in trust for Indians, within the borders of the Indian reservation and held by a member of the Indian Tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of the Indian reservation, and
(4) The Indian Tribe is reasonably expected to be capable, in the Regional Administrator's judgment, of carrying out the functions of an effective water quality standards program in a manner consistent with the terms and purposes of the Act and applicable regulations.
(b) Requests by Indian Tribes for administration of a water quality standards program should be submitted to the lead EPA Regional Administrator. The application shall include the following information:
(1) A statement that the Tribe is recognized by the Secretary of the Interior.
(2) A descriptive statement demonstrating that the Tribal governing body is currently carrying out substantial governmental duties and powers over a defined area. The statement should:
(i) Describe the form of the Tribal government;
(ii) Describe the types of governmental functions currently performed by the Tribal governing body such as, but not limited to, the exercise of police powers affecting (or relating to) the health, safety, and welfare of the affected population, taxation, and the exercise of the power of eminent domain; and
(iii) Identify the source of the Tribal government's authority to carry out the governmental functions currently being performed.
(3) A descriptive statement of the Indian Tribe's authority to regulate water quality. The statement should include:
(i) A map or legal description of the area over which the Indian Tribe asserts authority to regulate surface water quality;
(ii) A statement by the Tribe's legal counsel (or equivalent official) which describes the basis for the Tribes assertion of authority and which may include a copy of documents such as Tribal constitutions, by-laws, charters, executive orders, codes, ordinances, and/or resolutions which support the Tribe's assertion of authority; and
(iii) An identification of the surface waters for which the Tribe proposes to establish water quality standards.
(4) A narrative statement describing the capability of the Indian Tribe to administer an effective water quality standards program. The narrative statement should include:
(i) A description of the Indian Tribe's previous management experience which may include the administration of programs and services authorized by the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450
(ii) A list of existing environmental or public health programs administered by the Tribal governing body and copies of related Tribal laws, policies, and regulations;
(iii) A description of the entity (or entities) which exercise the executive, legislative, and judicial functions of the Tribal government;
(iv) A description of the existing, or proposed, agency of the Indian Tribe which will assume primary responsibility for establishing, reviewing, implementing and revising water quality standards;
(v) A description of the technical and administrative capabilities of the staff to administer and manage an effective water quality standards program or a plan which proposes how the Tribe will acquire additional administrative and technical expertise. The plan must address how the Tribe will obtain the funds to acquire the administrative and technical expertise.
(5) Additional documentation required by the Regional Administrator which, in the judgment of the Regional Administrator, is necessary to support a Tribal application.
(6) Where the Tribe has previously qualified for eligibility or “treatment as a state” under a Clean Water Act or Safe Drinking Water Act program, the Tribe need only provide the required information which has not been submitted in a previous application.
(c) Procedure for processing an Indian Tribe's application.
(1) The Regional Administrator shall process an application of an Indian Tribe submitted pursuant to § 131.8(b) in a timely manner. He shall promptly notify the Indian Tribe of receipt of the application.
(2) Within 30 days after receipt of the Indian Tribe's application the Regional Administrator shall provide appropriate notice. Notice shall:
(i) Include information on the substance and basis of the Tribe's assertion of authority to regulate the quality of reservation waters; and
(ii) Be provided to all appropriate governmental entities.
(3) The Regional Administrator shall provide 30 days for comments to be submitted on the Tribal application. Comments shall be limited to the Tribe's assertion of authority.
(4) If a Tribe's asserted authority is subject to a competing or conflicting claim, the Regional Administrator, after due consideration, and in consideration of other comments received, shall determine whether the Tribe has adequately demonstrated that it meets the requirements of § 131.8(a)(3).
(5) Where the Regional Administrator determines that a Tribe meets the requirements of this section, he shall promptly provide written notification to the Indian Tribe that the Tribe is authorized to administer the Water Quality Standards program.
(a) Each State must specify appropriate water uses to be achieved and protected. The classification of the waters of the State must take into consideration the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes including navigation. In no case shall a State adopt waste transport or waste assimilation as a designated use for any waters of the United States.
(b) In designating uses of a water body and the appropriate criteria for those uses, the State shall take into consideration the water quality standards of downstream waters and shall ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters.
(c) States may adopt sub-categories of a use and set the appropriate criteria to reflect varying needs of such sub-categories of uses, for instance, to differentiate between cold water and warm water fisheries.
(d) At a minimum, uses are deemed attainable if they can be achieved by the imposition of effluent limits required under sections 301(b) and 306 of the Act and cost-effective and reasonable best management practices for nonpoint source control.
(e) Prior to adding or removing any use, or establishing sub-categories of a use, the State shall provide notice and an opportunity for a public hearing under § 131.20(b) of this regulation.
(f) States may adopt seasonal uses as an alternative to reclassifying a water body or segment thereof to uses requiring less stringent water quality criteria. If seasonal uses are adopted, water quality criteria should be adjusted to reflect the seasonal uses,
(g) States may remove a designated use which is
(1) Naturally occurring pollutant concentrations prevent the attainment of the use; or
(2) Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating State water conservation requirements to enable uses to be met; or
(3) Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place; or
(4) Dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate such modification in a way that would result in the attainment of the use; or
(5) Physical conditions related to the natural features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic life protection uses; or
(6) Controls more stringent than those required by sections 301(b) and 306 of the Act would result in substantial and widespread economic and social impact.
(h) States may not remove designated uses if:
(1) They are existing uses, as defined in § 131.3, unless a use requiring more stringent criteria is added; or
(2) Such uses will be attained by implementing effluent limits required under sections 301(b) and 306 of the Act and by implementing cost-effective and reasonable best management practices for nonpoint source control.
(i) Where existing water quality standards specify designated uses less than those which are presently being attained, the State shall revise its standards to reflect the uses actually being attained.
(j) A State must conduct a use attainability analysis as described in § 131.3(g) whenever:
(1) The State designates or has designated uses that do not include the uses specified in section 101(a)(2) of the Act, or
(2) The State wishes to remove a designated use that is specified in section 101(a)(2) of the Act or to adopt subcategories of uses specified in section 101(a)(2) of the Act which require less stringent criteria.
(k) A State is not required to conduct a use attainability analysis under this regulation whenever designating uses which include those specified in section 101(a)(2) of the Act.
(a)
(2)
(b) Form of criteria: In establishing criteria, States should:
(1) Establish numerical values based on:
(i) 304(a) Guidance; or
(ii) 304(a) Guidance modified to reflect site-specific conditions; or
(iii) Other scientifically defensible methods;
(2) Establish narrative criteria or criteria based upon biomonitoring methods where numerical criteria cannot be established or to supplement numerical criteria.
(a) The State shall develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy pursuant to this subpart. The antidegradation policy and implementation methods shall, at a minimum, be consistent with the following:
(1) Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.
(2) Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State's continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully. Further, the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control.
(3) Where high quality waters constitute an outstanding National resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected.
(4) In those cases where potential water quality impairment associated with a thermal discharge is involved, the antidegradation policy and implementing method shall be consistent with section 316 of the Act.
States may, at their discretion, include in their State standards, policies generally affecting their application and implementation, such as mixing zones, low flows and variances. Such policies are subject to EPA review and approval.
(a)
(b)
(c)
(a) After the State submits its officially adopted revisions, the Regional Administrator shall either:
(1) Notify the State within 60 days that the revisions are approved, or
(2) Notify the State within 90 days that the revisions are disapproved. Such notification of disapproval shall specify the changes needed to assure compliance with the requirements of the Act and this regulation, and shall explain why the State standard is not in compliance with such requirements. Any new or revised State standard must be accompanied by some type of supporting analysis.
(b) The Regional Administrator's approval or disapproval of a State water quality standard shall be based on the requirements of the Act as described in §§ 131.5 and 131.6, and, with respect to Great Lakes States or Tribes (as defined in 40 CFR 132.2), 40 CFR part 132.
(c)
(d)
(e)
(f)
(a) If the State does not adopt the changes specified by the Regional Administrator within 90 days after notification of the Regional Administrator's disapproval, the Administrator shall promptly propose and promulgate such standard.
(b) The Administrator may also propose and promulgate a regulation, applicable to one or more States, setting forth a new or revised standard upon determining such a standard is necessary to meet the requirements of the Act.
(c) In promulgating water quality standards, the Administrator is subject to the same policies, procedures, analyses, and public participation requirements established for States in these regulations.
(a) [Reserved]
(b) The following waters have, in addition to the uses designated by the State, the designated use of fish consumption as defined in R18-11-101 (which is available from the Arizona Department of Environmental Quality, Water Quality Division, 3033 North Central Ave., Phoenix, AZ 85012):
(c) To implement the requirements of R18-11-108.A.5 with respect to effects of mercury on wildlife, EPA (or the State with the approval of EPA) shall implement a monitoring program to assess attainment of the water quality standard.
(a)
(1) Existing in-stream uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.
(2) Where the quality of the waters exceeds levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the Commonwealth finds, after full satisfaction of the inter-governmental coordination and public participation provisions of the Commonwealth's continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the Commonwealth shall assure water quality adequate to protect existing uses fully. Further, the Commonwealth shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint sources.
(3) Where high quality waters are identified as constituting an outstanding National resource, such as waters of National and State parks and
(b) [Reserved]
(a)
(2) The following waters are protected for bull trout spawning and rearing:
(i) BOISE-MORE BASIN: Devils Creek, East Fork Sheep Creek, Sheep Creek.
(ii) BROWNLEE RESERVOIR BASIN: Crooked River, Indian Creek.
(iii) CLEARWATER BASIN: Big Canyon Creek, Cougar Creek, Feather Creek, Laguna Creek, Lolo Creek, Orofino Creek, Talapus Creek, West Fork Potlatch River.
(iv) COEUR D'ALENE LAKE BASIN: Cougar Creek, Fernan Creek, Kid Creek, Mica Creek, South Fork Mica Creek, Squaw Creek, Turner Creek.
(v) HELLS CANYON BASIN: Dry Creek, East Fork Sheep Creek, Getta Creek, Granite Creek, Kurry Creek, Little Granite Creek, Sheep Creek.
(vi) LEMHI BASIN: Adams Creek, Alder Creek, Basin Creek, Bear Valley Creek, Big Eightmile Creek, Big Springs Creek, Big Timber Creek, Bray Creek, Bull Creek, Cabin Creek, Canyon Creek, Carol Creek, Chamberlain Creek, Clear Creek, Climb Creek, Cooper Creek, Dairy Creek, Deer Creek, Deer Park Creek, East Fork Hayden Creek, Eighteenmile Creek, Falls Creek, Ferry Creek, Ford Creek, Geertson Creek, Grove Creek, Hawley Creek, Hayden Creek, Kadletz Creek, Kenney Creek, Kirtley Creek, Lake Creek, Lee Creek, Lemhi River (above Big Eightmile Creek), Little Eightmile Creek, Little Mill Creek, Little Timber Creek, Middle Fork Little Timber Creek, Milk Creek, Mill Creek, Mogg Creek, North Fork Kirtley Creek, North Fork Little Timber Creek, Paradise Creek, Patterson Creek, Payne Creek, Poison Creek, Prospect Creek, Rocky Creek, Short Creek, Squaw Creek, Squirrel Creek, Tobias Creek, Trail Creek, West Fork Hayden Creek, Wright Creek.
(vii) LITTLE LOST BASIN: Badger Creek, Barney Creek, Bear Canyon, Bear Creek, Bell Mountain Creek, Big Creek, Bird Canyon, Black Creek, Buck Canyon, Bull Creek, Cedar Run Creek, Chicken Creek, Coal Creek, Corral Creek, Deep Creek, Dry Creek, Dry Creek Canal, Firbox Creek, Garfield Creek, Hawley Canyon, Hawley Creek, Horse Creek, Horse Lake Creek, Iron Creek, Jackson Creek, Little Lost River (above Badger Creek), Mahogany Creek, Main Fork Sawmill Creek, Massacre Creek, Meadow Creek, Mill Creek, Moffett Creek, Moonshine Creek, Quigley Creek, Red Rock Creek, Sands Creek, Sawmill Creek, Slide Creek, Smithie Fork, Squaw Creek, Summerhouse Canyon, Summit Creek, Timber Creek, Warm Creek, Wet Creek, Williams Creek.
(viii) LITTLE SALMON BASIN: Bascum Canyon, Boulder Creek, Brown Creek, Campbell Ditch, Castle Creek, Copper Creek, Granite Fork Lake Fork Rapid River, Hard Creek, Hazard Creek, Lake Fork Rapid River, Little Salmon River (above Hazard Creek), Paradise Creek, Pony Creek, Rapid River, Squirrel Creek, Trail Creek, West Fork Rapid River.
(ix) LOCHSA BASIN: Apgar Creek, Badger Creek, Bald Mountain Creek, Beaver Creek, Big Flat Creek, Big Stew Creek, Boulder Creek, Brushy Fork, Cabin Creek, Castle Creek, Chain Creek, Cliff Creek, Coolwater Creek, Cooperation Creek, Crab Creek, Crooked Fork Lochsa River, Dan Creek, Deadman Creek, Doe Creek, Dutch Creek, Eagle Creek, East Fork Papoose Creek, East Fork Split Creek, East Fork Squaw Creek, Eel Creek, Fern Creek, Fire Creek, Fish Creek, Fish Lake Creek, Fox Creek, Gass Creek, Gold Creek, Ham Creek, Handy Creek, Hard Creek, Haskell Creek, Heather Creek, Hellgate Creek, Holly Creek, Hopeful Creek, Hungery Creek, Indian
(x) LOWER CLARK FORK BASIN: Cascade Creek, East Fork, East Fork Creek, East Forkast Fork Creek, Gold Creek, Johnson Creek, Lightning Creek, Mosquito Creek, Porcupine Creek, Rattle Creek, Spring Creek, Twin Creek, Wellington Creek.
(xi) LOWER KOOTENAI BASIN: Ball Creek, Boundary Creek, Brush Creek, Cabin Creek, Caribou Creek, Cascade Creek, Cooks Creek, Cow Creek, Curley Creek, Deep Creek, Grass Creek, Jim Creek, Lime Creek, Long Canyon Creek, Mack Creek, Mission Creek, Myrtle Creek, Peak Creek, Snow Creek, Trout Creek.
(xii) LOWER MIDDLE FORK SALMON BASIN: Acorn Creek, Alpine Creek, Anvil Creek, Arrastra Creek, Bar Creek, Beagle Creek, Beaver Creek, Belvidere Creek, Big Creek, Birdseye Creek, Boulder Creek, Brush Creek, Buck Creek, Bull Creek, Cabin Creek, Camas Creek, Canyon Creek, Castle Creek, Clark Creek, Coin Creek, Corner Creek, Coxey Creek, Crooked Creek, Doe Creek, Duck Creek, East Fork Holy Terror Creek, Fawn Creek, Flume Creek, Fly Creek, Forge Creek, Furnace Creek, Garden Creek, Government Creek, Grouse Creek, Hammer Creek, Hand Creek, Holy Terror Creek, J Fell Creek, Jacobs Ladder Creek, Lewis Creek, Liberty Creek, Lick Creek, Lime Creek, Little Jacket Creek, Little Marble Creek, Little White Goat Creek, Little Woodtick Creek, Logan Creek, Lookout Creek, Loon Creek, Martindale Creek, Meadow Creek, Middle Fork Smith Creek, Monumental Creek, Moore Creek, Mulligan Creek, North Fork Smith Creek, Norton Creek, Placer Creek, Pole Creek, Rams Creek, Range Creek, Routson Creek, Rush Creek, Sawlog Creek, Sheep Creek, Sheldon Creek, Shellrock Creek, Ship Island Creek, Shovel Creek, Silver Creek, Smith Creek, Snowslide Creek, Soldier Creek, South Fork Camas Creek, South Fork Chamberlain Creek, South Fork Holy Terror Creek, South Fork Norton Creek, South Fork Rush Creek, South Fork Sheep Creek, Spider Creek, Spletts Creek, Telephone Creek, Trail Creek, Two Point Creek, West Fork Beaver Creek, West Fork Camas Creek, West Fork Monumental Creek, West Fork Rush Creek, White Goat Creek, Wilson Creek.
(xiii) LOWER NORTH FORK CLEARWATER BASIN: Adair Creek, Badger Creek, Bathtub Creek, Beaver Creek, Black Creek, Brush Creek, Buck Creek, Butte Creek, Canyon Creek, Caribou Creek, Crimper Creek, Dip Creek, Dog Creek, Elmer Creek, Falls Creek, Fern Creek, Goat Creek, Isabella Creek, John Creek, Jug Creek, Jungle Creek, Lightning Creek, Little Lost Lake Creek, Little North Fork Clearwater River, Lost Lake Creek, Lund Creek, Montana Creek, Mowitch Creek, Papoose Creek, Pitchfork Creek, Rocky Run, Rutledge Creek, Spotted Louis Creek, Triple Creek, Twin Creek, West Fork Montana Creek, Willow Creek.
(xiv) LOWER SALMON BASIN: Bear Gulch, Berg Creek, East Fork John Day Creek, Elkhorn Creek, Fiddle Creek, French Creek, Hurley Creek, John Day Creek, Kelly Creek, Klip Creek, Lake Creek, Little Slate Creek, Little Van Buren Creek, No Business Creek, North Creek, North Fork Slate Creek, North Fork White Bird Creek, Partridge Creek, Slate Creek, Slide Creek, South Fork John Day Creek, South Fork White Bird Creek, Warm Springs Creek.
(xv) LOWER SELWAY BASIN: Anderson Creek, Bailey Creek, Browns
(xvi) MIDDLE FORK CLEARWATER BASIN: Baldy Creek, Big Cedar Creek, Browns Spring Creek, Clear Creek, Middle Fork Clear Creek, Pine Knob Creek, South Fork Clear Creek.
(xvii) MIDDLE FORK PAYETTE BASIN: Bull Creek, Middle Fork Payette River (above Fool Creek), Oxtail Creek, Silver Creek, Sixteen-to-one Creek.
(xviii) MIDDLE SALMON-CHAMBERLAIN BASIN: Arrow Creek, Bargamin Creek, Bat Creek, Bay Creek, Bear Creek, Bend Creek, Big Elkhorn Creek, Big Harrington Creek, Big Mallard Creek, Big Squaw Creek, Bleak Creek, Bronco Creek, Broomtail Creek, Brown Creek, Cayuse Creek, Center Creek, Chamberlain Creek, Cliff Creek, Colt Creek, Corn Creek, Crooked Creek, Deer Creek, Dennis Creek, Disappointment Creek, Dismal Creek, Dog Creek, East Fork Fall Creek, East Fork Horse Creek, East Fork Noble Creek, Fall Creek, Filly Creek, Fish Creek, Flossie Creek, Game Creek, Gap Creek, Ginger Creek, Green Creek, Grouse Creek, Guard Creek, Hamilton Creek, Horse Creek, Hot Springs Creek, Hotzel Creek, Hungry Creek, Iodine Creek, Jack Creek, Jersey Creek, Kitchen Creek, Lake Creek, Little Horse Creek, Little Lodgepole Creek, Little Mallard Creek, Lodgepole Creek, Mayflower Creek, McCalla Creek, Meadow Creek, Moose Creek, Moose Jaw Creek, Mule Creek, Mustang Creek, No Name Creek, Owl Creek, Poet Creek, Pole Creek, Porcupine Creek, Prospector Creek, Pup Creek, Queen Creek, Rainey Creek, Ranch Creek, Rattlesnake Creek, Red Top Creek, Reynolds Creek, Rim Creek, Ring Creek, Rock Creek, Root Creek, Runaway Creek, Sabe Creek, Saddle Creek, Salt Creek, Schissler Creek, Sheep Creek, Short Creek, Shovel Creek, Skull Creek, Slaughter Creek, Slide Creek, South Fork Cottonwood Creek, South Fork Chamberlain Creek, South Fork Kitchen Creek, South Fork Salmon River, Spread Creek, Spring Creek, Starvation Creek, Steamboat Creek, Steep Creek, Stud Creek, Warren Creek, Webfoot Creek, West Fork Chamberlain Creek, West Fork Rattlesnake Creek, West Horse Creek, Whimstick Creek, Wind River, Woods Fork Horse Creek.
(xix) MIDDLE SALMON-PANTHER BASIN: Allen Creek, Arnett Creek, Beaver Creek, Big Deer Creek, Blackbird Creek, Boulder Creek, Cabin Creek, Camp Creek, Carmen Creek, Clear Creek, Colson Creek, Copper Creek, Corral Creek, Cougar Creek, Cow Creek, Deadhorse Creek, Deep Creek, East Boulder Creek, Elkhorn Creek, Fawn Creek, Fourth Of July Creek, Freeman Creek, Homet Creek, Hughes Creek, Hull Creek, Indian Creek, Iron Creek, Jackass Creek, Jefferson Creek, Jesse Creek, Lake Creek, Little Deep Creek, Little Hat Creek, Little Sheep Creek, McConn Creek, McKim Creek, Mink Creek, Moccasin Creek, Moose Creek, Moyer Creek, Musgrove Creek, Napias Creek, North Fork Hughes Creek, North Fork Iron Creek, North Fork Salmon River, North Fork Williams Creek, Opal Creek, Otter Creek, Owl Creek, Panther Creek, Park Creek, Phelan Creek, Pine Creek, Pony Creek, Porphyry Creek, Pruvan Creek, Rabbit Creek, Rancherio Creek, Rapps Creek, Salt Creek, Salzer Creek, Saw Pit Creek, Sharkey Creek, Sheep Creek, South Fork Cabin Creek, South Fork Iron Creek, South Fork Moyer Creek, South Fork Phelan Creek, South Fork Sheep Creek, South Fork Williams Creek, Spring Creek, Squaw Creek, Trail Creek, Twelvemile Creek, Twin Creek, Weasel Creek, West Fork Blackbird Creek, West Fork Iron Creek, Williams Creek, Woodtick Creek.
(xx) MOYIE BASIN: Brass Creek, Bussard Creek, Copper Creek, Deer
(xxi) NORTH AND MIDDLE FORK BOISE BASIN: Abby Creek, Arrastra Creek, Bald Mountain Creek, Ballentyne Creek, Banner Creek, Bayhouse Creek, Bear Creek, Bear River, Big Gulch, Big Silver Creek, Billy Creek, Blackwarrior Creek, Bow Creek, Browns Creek, Buck Creek, Cabin Creek, Cahhah Creek, Camp Gulch, China Fork, Coma Creek, Corbus Creek, Cow Creek, Crooked River, Cub Creek, Decker Creek, Dutch Creek, Dutch Frank Creek, East Fork Roaring River, East Fork Swanholm Creek, East Fork Yuba River, Flint Creek, Flytrip Creek, Gotch Creek, Graham Creek, Granite Creek, Grays Creek, Greylock Creek, Grouse Creek, Hot Creek, Hungarian Creek, Joe Daley Creek, Johnson Creek, Kid Creek, King Creek, La Mayne Creek, Leggit Creek, Lightening Creek, Little Queens River, Little Silver Creek, Louise Creek, Lynx Creek, Mattingly Creek, McKay Creek, McLeod Creek, McPhearson Creek, Middle Fork Boise River (above Roaring River), Middle Fork Corbus Creek, Middle Fork Roaring River, Mill Creek, Misfire Creek, Montezuma Creek, North Fork Boise River (above Bear River), Phifer Creek, Pikes Fork, Quartz Gulch, Queens River, Rabbit Creek, Right Creek, Roaring River, Robin Creek, Rock Creek, Rockey Creek, Sawmill Creek, Scenic Creek, Scotch Creek, Scott Creek, Shorip Creek, Smith Creek, Snow Creek, Snowslide Creek, South Fork Corbus Creek, South Fork Cub Creek, Spout Creek, Steamboat Creek, Steel Creek, Steppe Creek, Swanholm Creek, Timpa Creek, Trail Creek, Trapper Creek, Tripod Creek, West Fork Creek, West Warrior Creek, Willow Creek, Yuba River.
(xxii) NORTH FORK PAYETTE BASIN: Gold Fork River, North Fork Gold Fork River, Pearsol Creek.
(xxiii) AHSIMEROI BASIN: Baby Creek, Bear Creek, Big Creek, Big Gulch, Burnt Creek, Christian Gulch, Dead Cat Canyon, Ditch Creek, Donkey Creek, Doublespring Creek, Dry Canyon, Dry Gulch, East Fork Burnt Creek, East Fork Morgan Creek, East Fork Pahsimeroi River, East Fork Patterson Creek, Elkhorn Creek, Falls Creek, Goldberg Creek, Hillside Creek, Inyo Creek, Long Creek, Mahogany Creek, Mill Creek, Morgan Creek, Morse Creek, Mulkey Gulch, North Fork Big Creek, North Fork Morgan Creek, Pahsimeroi River (above Big Creek), Patterson Creek, Rock Spring Canyon, Short Creek, Snowslide Creek, South Fork Big Creek, Spring Gulch, Squaw Creek, Stinking Creek, Tater Creek, West Fork Burnt Creek, West Fork North Fork Big Creek.
(xxiv) PAYETTE BASIN: Squaw Creek, Third Fork Squaw Creek.
(xxv) PEND OREILLE LAKE BASIN: Branch North Gold Creek, Cheer Creek, Chloride Gulch, Dry Gulch, Dyree Creek, Flume Creek, Gold Creek, Granite Creek, Grouse Creek, Kick Bush Gulch, North Fork Grouse Creek, North Gold Creek, Plank Creek, Rapid Lightning Creek, South Fork Grouse Creek, Strong Creek, Thor Creek, Trestle Creek, West Branch Pack River, West Gold Creek, Wylie Creek, Zuni Creek.
(xxvi) PRIEST BASIN: Abandon Creek, Athol Creek, Bath Creek, Bear Creek, Bench Creek, Blacktail Creek, Bog Creek, Boulder Creek, Bugle Creek, Canyon Creek, Caribou Creek, Cedar Creek, Chicopee Creek, Deadman Creek, East Fork Trapper Creek, East River, Fedar Creek, Floss Creek, Gold Creek, Granite Creek, Horton Creek, Hughes Fork, Indian Creek, Jackson Creek, Jost Creek, Kalispell Creek, Kent Creek, Keokee Creek, Lime Creek, Lion Creek, Lost Creek, Lucky Creek, Malcom Creek, Middle Fork East River, Muskegon Creek, North Fork Granite Creek, North Fork Indian Creek, Packer Creek, Rock Creek, Ruby Creek, South Fork Granite Creek, South Fork Indian Creek, South Fork Lion Creek, Squaw Creek, Tango Creek, Tarlac Creek, The Thorofare, Trapper Creek, Two Mouth Creek, Uleda Creek, Priest R. (above Priest Lake), Zero Creek.
(xxvii) SOUTH FORK BOISE BASIN: Badger Creek, Bear Creek, Bear Gulch, Big Smoky Creek, Big Water Gulch, Boardman Creek, Burnt Log Creek, Cayuse Creek, Corral Creek, Cow Creek, Edna Creek, Elk Creek, Emma
(xxviii) SOUTH FORK CLEARWATER BASIN: American River, Baker Gulch, Baldy Creek, Bear Creek, Beaver Creek, Big Canyon Creek, Big Elk Creek, Blanco Creek, Boundary Creek, Box Sing Creek, Boyer Creek, Cartwright Creek, Cole Creek, Crooked River, Dawson Creek, Deer Creek, Ditch Creek, East Fork American River, East Fork Crooked River, Elk Creek, Fivemile Creek, Flint Creek, Fourmile Creek, Fox Creek, French Gulch, Galena Creek, Gospel Creek, Hagen Creek, Hays Creek, Johns Creek, Jungle Creek, Kirks Fork American River, Little Elk Creek, Little Moose Creek, Little Siegel Creek, Loon Creek, Mackey Creek, Meadow Creek, Melton Creek, Middle Fork Red River, Mill Creek, Monroe Creek, Moores Creek, Moores Lake Creek, Moose Butte Creek, Morgan Creek, Mule Creek, Newsome Creek, Nuggett Creek, Otterson Creek, Pat Brennan Creek, Pilot Creek, Quartz Creek, Queen Creek, Rabbit Creek, Rainbow Gulch, Red River, Relief Creek, Ryan Creek, Sally Ann Creek, Sawmill Creek, Schooner Creek, Schwartz Creek, Sharmon Creek, Siegel Creek, Silver Creek, Sixmile Creek, Sixtysix Creek, Snoose Creek, Sourdough Creek, South Fork Red River, Square Mountain Creek, Swale Creek, Swift Creek, Taylor Creek, Tenmile Creek, Trail Creek, Trapper Creek, Trout Creek, Twentymile Creek, Twin Lakes Creek, Umatilla Creek, West Fork Big Elk Creek, West Fork Crooked River, West Fork Gospel Creek, West Fork Newsome Creek, West Fork Red River, West Fork Twentymile Creek, Whiskey Creek, Whitaker Creek, Williams Creek.
(xxix) SOUTH FORK PAYETTE BASIN: Archie Creek, Ash Creek, Baron Creek, Basin Creek, Bear Creek, Beaver Creek, Big Spruce Creek, Bitter Creek, Blacks Creek, Blue Jay Creek, Burn Creek, Bush Creek, Camp Creek, Canyon Creek, Casner Creek, Cat Creek, Chapman Creek, Charters Creek, Clear Creek, Coski Creek, Cup Creek, Dead Man Creek, Deadwood River, Deer Creek, East Fork Deadwood Creek, East Fork Warm Springs Creek, Eby Creek, Elkhorn Creek, Emma Creek, Fall Creek, Fence Creek, Fern Creek, Fivemile Creek, Fox Creek, Garney Creek, Gates Creek, Goat Creek, Grandjem Creek, Grouse Creek, Habit Creek, Helende Creek, Horse Creek, Huckleberry Creek, Jackson Creek, Kettle Creek, Kirkham Creek, Lake Creek, Lick Creek, Little Tenmile Creek, Logging Gulch, Long Creek, MacDonald Creek, Meadow Creek, Middle Fork Warm Springs Creek, Miller Creek, Monument Creek, Moulding Creek, Ninemile Creek, No Man Creek, No Name Creek, North Fork Baron Creek, North Fork Canyon Creek, North Fork Deer Creek, North Fork Whitehawk Creek, O'Keefe Creek, Packsaddle Creek, Park Creek, Pass Creek, Pinchot Creek, Pine Creek, Pitchfork Creek, Pole Creek, Richards Creek, Road Fork Rock Creek, Rock Creek, Rough Creek, Scott Creek, Silver Creek, Sixmile Creek, Smith Creek, Smokey Creek, South Fork Beaver Creek, South Fork Canyon Creek, South Fork Clear Creek, South Fork Payette River (above Rock Creek), South Fork Scott Creek, South Fork Warm Spring Creek, Spring Creek, Steep Creek, Stratton Creek, Topnotch Creek, Trail Creek, Wapiti Creek, Warm Spring Creek, Warm Springs Creek, Whangdoodle Creek, Whitehawk Creek, Wild Buck Creek, Wills Gulch, Wilson Creek, Wolf Creek.
(xxx) SOUTH FORK SALMON BASIN: Alez Creek, Back Creek, Bear Creek, Bishop Creek, Blackmare Creek, Blue Lake Creek, Buck Creek, Buckhorn Bar Creek, Buckhorn Creek, Burgdorf Creek, Burntlog Creek, Cabin Creek, Calf Creek, Camp Creek, Cane Creek, Caton Creek, Cinnabar Creek, Cliff Creek, Cly Creek, Cougar Creek,
(xxxi) ST. JOE R. BASIN: Bad Bear Creek, Bean Creek, Bear Creek, Beaver Creek, Bedrock Creek, Berge Creek, Bird Creek, Blue Grouse Creek, Boulder Creek, Broadaxe Creek, Bruin Creek, California Creek, Cherry Creek, Clear Creek, Color Creek, Copper Creek, Dolly Creek, Dump Creek, Eagle Creek, East Fork Bluff Creek, East Fork Gold Creek, Emerald Creek, Fishhook Creek, Float Creek, Fly Creek, Fuzzy Creek, Gold Creek, Heller Creek, Indian Creek, Kelley Creek, Malin Creek, Marble Creek, Medicine Creek, Mica Creek, Mill Creek, Mosquito Creek, North Fork Bean Creek, North Fork Saint Joe River, North Fork Simmons Creek, Nugget Creek, Packsaddle Creek, Periwinkle Creek, Prospector Creek, Quartz Creek, Red Cross Creek, Red Ives Creek, Ruby Creek, Saint Joe River (above Siwash Creek), Setzer Creek, Sherlock Creek, Simmons Creek, Siwash Creek, Skookum Creek, Thomas Creek, Thorn Creek, Three Lakes Creek, Timber Creek, Tinear Creek, Trout Creek, Tumbledown Creek, Wahoo Creek, Washout Creek, Wilson Creek, Yankee Bar Creek.
(xxxii) UPPER COEUR D'ALENE BASIN: Brown Creek, Falls Creek, Graham Creek.
(xxxiii) UPPER KOOTENAI BASIN: Halverson Cr, North Callahan Creek, South Callahan Creek, West Fork Keeler Creek
(xxxiv) UPPER MIDDLE FORK SALMON BASIN: Asher Creek, Automatic Creek, Ayers Creek, Baldwin Creek, Banner Creek, Bear Creek, Bear Valley Creek, Bearskin Creek, Beaver Creek, Bernard Creek, Big Chief Creek, Big Cottonwood Creek, Birch Creek, Blue Lake Creek, Blue Moon Creek, Boundary Creek, Bridge Creek, Browning Creek, Buck Creek, Burn Creek, Cabin Creek, Cache Creek, Camp Creek, Canyon Creek, Cap Creek, Cape Horn Creek, Casner Creek, Castle Fork, Casto Creek, Cat Creek, Chokebore Creek, Chuck Creek, Cliff Creek, Cold Creek, Collie Creek, Colt Creek, Cook Creek, Corley Creek, Cornish Creek, Cottonwood Creek, Cougar Creek, Crystal Creek, Cub Creek, Cultus Creek, Dagger Creek, Deer Creek, Deer Horn Creek, Doe Creek, Dry Creek, Duffield Creek, Dynamite Creek, Eagle Creek, East Fork Elk Creek, East Fork Indian Creek, East Fork Mayfield Creek, Elk Creek, Elkhorn Creek, Endoah Creek,
(xxxv) UPPER NORTH FORK CLEARWATER BASIN: Adams Creek, Avalanche Creek, Bacon Creek, Ball Creek, Barn Creek, Barnard Creek, Barren Creek, Bear Creek, Beaver Dam Creek, Bedrock Creek, Bill Creek, Bostonian Creek, Boundary Creek, Burn Creek, Butter Creek, Camp George Creek, Canyon Creek, Cayuse Creek, Chamberlain Creek, Clayton Creek, Cliff Creek, Coffee Creek, Cold Springs Creek, Collins Creek, Colt Creek, Cool Creek, Copper Creek, Corral Creek, Cougar Creek, Craig Creek, Crater Creek, Cub Creek, Davis Creek, Deadwood Creek, Deer Creek, Dill Creek, Drift Creek, Elizabeth Creek, Fall Creek, Fire Creek, Fix Creek, Flame Creek, Fly Creek, Fourth of July Creek, Fro Creek, Frog Creek, Frost Creek, Gilfillian Creek, Goose Creek, Grass Creek, Gravey Creek, Grizzly Creek, Hanson Creek, Heather Creek, Henry Creek, Hidden Creek, Howard Creek, Independence Creek, Jam Creek, Japanese Creek, Johnagan Creek, Johnny Creek, Junction Creek, Kelly Creek, Kid Lake Creek, Kodiak Creek, Lake Creek, Laundry Creek, Lightning Creek, Little Moose Creek, Little Weitas Creek, Liz Creek, Long Creek, Marten Creek, Meadow Creek, Middle Creek, Middle North Fork Kelly Creek, Mill Creek, Mire Creek, Monroe Creek, Moose Creek, Negro Creek, Nettle Creek, Niagra Gulch, North Fork Clearwater River (Fourth of July Creek), Nub Creek, Osier Creek, Perry Creek, Pete Ott Creek, Placer Creek, Polar Creek, Post Creek, Potato Creek, Quartz Creek, Rapid Creek, Rawhide Creek, Roaring Creek, Rock Creek, Rocky Ridge Creek, Ruby Creek, Saddle Creek, Salix Creek, Scurry Creek, Seat Creek, Short Creek, Shot Creek, Siam Creek, Silver Creek, Skull Creek, Slide Creek, Smith Creek, Snow Creek, South Fork Kelly Creek, Spud Creek, Spy Creek, Stolen Creek, Stove Creek, Sugar Creek, Swamp Creek, Tinear Creek, Tinkle Creek, Toboggan Creek, Trail Creek, Vanderbilt Gulch, Wall Creek, Weitas Creek, Williams Creek, Windy Creek, Wolf Creek, Young Creek.
(xxxvi) UPPER SALMON BASIN: Alder Creek, Alpine Creek, Alta Creek,
(xxxvii) UPPER SELWAY BASIN: Basin Creek, Bear Creek, Burn Creek, Camp Creek, Canyon Creek, Cliff Creek, Comb Creek, Cooper Creek, Cub Creek, Deep Creek, Eagle Creek, Elk Creek, Fall Creek, Fox Creek, Goat Creek, Gold Pan Creek, Granite Creek, Grass Gulch, Haystack Creek, Hells Half Acre Creek, Indian Creek, Kim Creek, Lake Creek, Langdon Gulch, Little Clearwater River, Lodge Creek, Lunch Creek, Mist Creek, Paloma Creek, Paradise Creek, Peach Creek, Pettibone Creek, Running Creek, Saddle Gulch, Schofield Creek, Selway River (above Pettibone Creek), South Fork Running Creek, South Fork Saddle Gulch, South Fork Surprise Creek, Spruce Creek, Squaw Creek, Stripe Creek, Surprise Creek, Set Creek, Tepee Creek, Thirteen Creek, Three Lakes Creek, Triple Creek, Wahoo Creek, White Cap Creek, Wilkerson Creek, Witter Creek.
(xxxviii) WEISER BASIN: Anderson Creek, Bull Corral Creek, Dewey Creek, East Fork Weiser River, Little Weiser River, above Anderson Creek, Sheep Creek, Wolf Creek.
(3) Procedures for site specific modification of listed waterbodies or temperature criteria for bull trout.
(i) The Regional Administrator may, in his discretion, determine that the temperature criteria in paragraph (a)(1) of this section shall not apply to a specific waterbody or portion thereof listed in paragraph (a)(2) of this section. Any such determination shall be made consistent with § 131.11 and shall be based on a finding that bull trout spawning and rearing is not an existing use in such waterbody or portion thereof.
(ii) The Regional Administrator may, in his discretion, raise the temperature criteria in paragraph (a)(1) of this section as they pertain to a specific waterbody or portion thereof listed in paragraph (a)(2) of this section. Any such determination shall be made consistent with § 131.11, and shall be based on a finding that bull trout would be fully supported at the higher temperature criteria.
(iii) For any determination made under paragraphs (a)(3)(i) or (a)(3)(ii) of this section, the Regional Administrator shall, prior to making such a determination, provide for public notice of and comment on a proposed determination. For any such proposed determination, the Regional Administrator shall prepare and make available to the public a technical support document addressing each waterbody or portion thereof that would be deleted or modified and the justification for each proposed determination. This document shall be made available to the public not later than the date of public notice.
(iv) The Regional Administrator shall maintain and make available to the public an updated list of determinations made pursuant to paragraphs (a)(3)(i) and (a)(3)(ii) of this section as well as the technical support documents for each determination.
(v) Nothing in this paragraph (a)(3) shall limit the Administrator's authority to modify the temperature criteria in paragraph (a)(1) of this section or the list of waterbodies in paragraph (a)(2) of this section through rulemaking.
(b)
(c)
(d)
(2) A water quality standard variance shall not be granted if:
(i) Standards will be attained by implementing effluent limitations required under sections 301(b) and 306 of the CWA and by the permittee implementing reasonable best management practices for nonpoint source control; or
(ii) The variance would likely jeopardize the continued existence of any threatened or endangered species listed under section 4 of the Endangered Species Act or result in the destruction or adverse modification of such species' critical habitat.
(3) Subject to paragraph (d)(2) of this section, a water quality standards variance may be granted if the applicant demonstrates to EPA that attaining the water quality standard is not feasible because:
(i) Naturally occurring pollutant concentrations prevent the attainment of the use; or
(ii) Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating State water conservation requirements to enable uses to be met; or
(iii) Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place; or
(iv) Dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the waterbody to its original condition or to operate such modification in a way which would result in the attainment of the use; or
(v) Physical conditions related to the natural features of the waterbody, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like unrelated to water quality, preclude
(vi) Controls more stringent than those required by sections 301(b) and 306 of the CWA would result in substantial and widespread economic and social impact.
(4)
(5) A variance may not exceed 5 years or the term of the NPDES permit, whichever is less. A variance may be renewed if the applicant reapplies and demonstrates that the use in question is still not attainable. Renewal of the variance may be denied if the applicant did not comply with the conditions of the original variance.
(a) In addition to the State-adopted use designations, the following water body segment in Kansas is designated for an expected aquatic life use:
(b) In addition to the State-adopted use designations, the following water body segments and lakes in Kansas are designated for recreation uses as specified in the following table:
(c) Water quality standard variances. (1) The Regional Administrator, EPA Region 7, is authorized to grant variances from the water quality standards in paragraphs (a) and (b) of this section where the requirements of this paragraph (c) are met. A water quality standard variance applies only to the permittee requesting the variance and only to the pollutant or pollutants specified in the variance; the underlying water quality standard otherwise remains in effect.
(2) A water quality standard variance shall not be granted if:
(i) Standards will be attained by implementing effluent limitations required under sections 301(b) and 306 of the CWA and by the permittee implementing reasonable best management practices for nonpoint source control; or
(ii) The variance would likely jeopardize the continued existence of any threatened or endangered species listed under section 4 of the Endangered Species Act or result in the destruction or adverse modification of such species' critical habitat.
(3) Subject to paragraph (c)(2) of this section, a water quality standards variance may be granted if the applicant demonstrates to EPA that attaining the water quality standard is not feasible because:
(i) Naturally occurring pollutant concentrations prevent the attainment of the use; or
(ii) Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges
(iii) Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place; or
(iv) Dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or to operate such modification in a way which would result in the attainment of the use; or
(v) Physical conditions related to the natural features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like unrelated to water quality, preclude attainment of aquatic life protection uses; or
(vi) Controls more stringent than those required by sections 301(b) and 306 of the CWA would result in substantial and widespread economic and social impact.
(4) Procedures. An applicant for a water quality standards variance shall submit a request to the Regional Administrator of EPA Region 7. The application shall include all relevant information showing that the requirements for a variance have been satisfied. The burden is on the applicant to demonstrate to EPA's satisfaction that the designated use is unattainable for one of the reasons specified in paragraph (c)(3) of this section. If the Regional Administrator preliminarily determines that grounds exist for granting a variance, he shall provide public notice of the proposed variance and provide an opportunity for public comment. Any activities required as a condition of the Regional Administrator's granting of a variance shall be included as conditions of the NPDES permit for the applicant. These terms and conditions shall be incorporated into the applicant's NPDES permit through the permit reissuance process or through a modification of the permit pursuant to the applicable permit modification provisions of Kansas' NPDES program
(5) A variance may not exceed 3 years or the term of the NPDES permit, whichever is less. A variance may be renewed if the applicant reapplies and demonstrates that the use in question is still not attainable. Renewal of the variance may be denied if the applicant did not comply with the conditions of the original variance, or otherwise does not meet the requirements of this section.
The water quality standards applicable to the waters within the Colville Indian Reservation, located in the State of Washington.
(a)
(2) The Colville Confederated Tribes have a primary interest in the protection, control, conservation, and utilization of the water resources of the Colville Indian Reservation. Water quality standards have been enacted into tribal law by the Colville Business Council of the Confederated Tribes of the Colville Reservation, as the Colville Water Quality Standards Act, CTC Title 33 (Resolution No. 1984-526 (August 6, 1984) as amended by Resolution No. 1985-20 (January 18, 1985)).
(b)
(c)
(2) In conjunction with the issuance of section 402 or section 404 permits, the Regional Administrator may designate mixing zones in the waters of the United States on the reservation on a case-by-case basis. The size of such mixing zones and the in-zone water quality in such mixing zones
(3) Amendments to the section at the request of the Tribe shall proceed in the following manner.
(i) The requested amendment shall first be duly approved by the Confederated Tribes of the Colville Reservation (and so certified by the Tribes Legal Counsel) and submitted to the Regional Administrator.
(ii) The requested amendment shall be reviewed by EPA (and by the State of Washington, if the action would affect a boundary water).
(iii) If deemed in compliance with the Clean Water Act, EPA will propose and promulgate an appropriate change to this section.
(4) Amendment of this section at EPA's initiative will follow consultation with the Tribe and other appropriate entities. Such amendments will then follow normal EPA rulemaking procedures.
(5) All other applicable provisions of this part 131 shall apply on the Colville Confederated Tribes Reservation. Special attention should be paid to §§ 131.6, 131.10, 131.11 and 131.20 for any amendment to these standards to be initiated by the Tribe.
(6) All numeric criteria contained in this section apply at all in-stream flow rates greater than or equal to the flow rate calculated as the minimum 7-consecutive day average flow with a recurrence frequency of once in ten years (7Q10); narrative criteria (§ 131.35(e)(3)) apply regardless of flow. The 7Q10 low flow shall be calculated using methods recommended by the U.S. Geological Survey.
(d)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19)
(20)
(e)
(1)
(2)
(i) Existing in-stream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.
(ii) Where the quality of the waters exceeds levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the Regional Administrator finds, after full satisfaction of the inter-governmental coordination and public participation provisions of the Tribes' continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the Regional Administrator shall assure water quality adequate to protect existing uses fully. Further, the Regional Administrator shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control.
(iii) Where high quality waters are identified as constituting an outstanding national or reservation resource, such as waters within areas designated as unique water quality management areas and waters otherwise of exceptional recreational or ecological significance, and are designated as special resource waters, that water quality shall be maintained and protected.
(iv) In those cases where potential water quality impairment associated with a thermal discharge is involved, this antidegradation policy's implementing method shall be consistent with section 316 of the Clean Water Act.
(3)
(i) Settle to form objectionable deposits;
(ii) Float as debris, scum, oil, or other matter forming nuisances;
(iii) Produce objectionable color, odor, taste, or turbidity;
(iv) Cause injury to, are toxic to, or produce adverse physiological responses in humans, animals, or plants; or
(v) produce undesirable or nuisance aquatic life.
(4)
(f)
(1)
(A) Water supply (domestic, industrial, agricultural).
(B) Stock watering.
(C) Fish and shellfish: Salmonid migration, rearing, spawning, and harvesting; other fish migration, rearing, spawning, and harvesting.
(D) Wildlife habitat.
(E) Ceremonial and religious water use.
(F) Recreation (primary contact recreation, sport fishing, boating and aesthetic enjoyment).
(G) Commerce and navigation.
(ii)
(B) Dissolved oxygen—The dissolved oxygen shall exceed 9.5 mg/l.
(C) Total dissolved gas—concentrations shall not exceed 110 percent of the saturation value for gases at the existing atmospheric and hydrostatic pressures at any point of sample collection.
(D) Temperature—shall not exceed 16.0 degrees C due to human activities. Temperature increases shall not, at any time, exceed t=23/(T+5).
(
(
(
(E) pH shall be within the range of 6.5 to 8.5 with a human-caused variation of less than 0.2 units.
(F) Turbidity shall not exceed 5 NTU over background turbidity when the background turbidity is 50 NTU or less, or have more than a 10 percent increase in turbidity when the background turbidity is more than 50 NTU.
(G) Toxic, radioactive, nonconventional, or deleterious material concentrations shall be less than those of public health significance, or which may cause acute or chronic toxic conditions to the aquatic biota, or which may adversely affect designated water uses.
(2)
(A) Water supply (domestic, industrial, agricultural).
(B) Stock watering.
(C) Fish and shellfish: Salmonid migration, rearing, spawning, and harvesting; other fish migration, rearing, spawning, and harvesting; crayfish rearing, spawning, and harvesting.
(D) Wildlife habitat.
(E) Ceremonial and religious water use.
(F) Recreation (primary contact recreation, sport fishing, boating and aesthetic enjoyment).
(G) Commerce and navigation.
(ii)
(B) Dissolved oxygen—The dissolved oxygen shall exceed 8.0 mg/l.
(C) Total dissolved gas—concentrations shall not exceed 110 percent of the saturation value for gases at the existing atmospheric and hydrostatic pressures at any point of sample collection.
(D) Temperature-shall not exceed 18.0 degrees C due to human activities. Temperature increases shall not, at any time, exceed t=28/(T+7).
(
(
(
(E) pH shall be within the range of 6.5 to 8.5 with a human-caused variation of less than 0.5 units.
(F) Turbidity shall not exceed 5 NTU over background turbidity when the background turbidity is 50 NTU or less, or have more than a 10 percent increase in turbidity when the background turbidity is more than 50 NTU.
(G) Toxic, radioactive, nonconventional, or deleterious material concentrations shall be less than those of public health significance, or which may cause acute or chronic toxic conditions to the aquatic biota, or which may adversely affect designated water uses.
(3)
(A) Water supply (industrial, agricultural).
(B) Stock watering.
(C) Fish and shellfish: Salmonid migration, rearing, spawning, and harvesting; other fish migration, rearing, spawning, and harvesting; crayfish rearing, spawning, and harvesting.
(D) Wildlife habitat.
(E) Recreation (secondary contact recreation, sport fishing, boating and aesthetic enjoyment).
(F) Commerce and navigation.
(ii)
(B) Dissolved oxygen.
(C) Total dissolved gas concentrations shall not exceed 110 percent of the saturation value for gases at the existing atmospheric and hydrostatic pressures at any point of sample collection.
(D) Temperature shall not exceed 21.0 degrees C due to human activities. Temperature increases shall not, at any time, exceed t=34/(T+9).
(
(
(
(E) pH shall be within the range of 6.5 to 8.5 with a human-caused variation of less than 0.5 units.
(F) Turbidity shall not exceed 10 NTU over background turbidity when the background turbidity is 50 NTU or less, or have more than a 20 percent increase in turbidity when the background turbidity is more than 50 NTU.
(G) Toxic, radioactive, nonconventional, or deleterious material concentrations shall be less than those of public health significance, or which may cause acute or chronic toxic conditions to the aquatic biota, or which may adversely affect designated water uses.
(4)
(A) Water supply (industrial).
(B) Stock watering.
(C) Fish (salmonid and other fish migration).
(D) Recreation (secondary contact recreation, sport fishing, boating and aesthetic enjoyment).
(E) Commerce and navigation.
(ii)
(B) Total dissolved gas—concentrations shall not exceed 110 percent of the saturation value for gases at the existing atmospheric and hydrostatic pressures at any point of sample collection.
(C) Temperature shall not exceed 22.0 degrees C due to human activities. Temperature increases shall not, at any time, exceed t=20/(T+2).
(
(
(D) pH shall be within the range of 6.5 to 9.0 with a human-caused variation of less than 0.5 units.
(E) Turbidity shall not exceed 10 NTU over background turbidity when the background turbidity is 50 NTU or less, or have more than a 20 percent increase in turbidity when the background turbidity is more than 50 NTU.
(F) Toxic, radioactive, nonconventional, or deleterious material concentrations shall be less than those of public health significance, or which may cause acute or chronic toxic conditions to the aquatic biota, or which may adversely affect designated water uses.
(5)
(A) Water supply (domestic, industrial, agricultural).
(B) Stock watering.
(C) Fish and shellfish: Salmonid migration, rearing, spawning, and harvesting; other fish migration, rearing, spawning, and harvesting; crayfish rearing, spawning, and harvesting.
(D) Wildlife habitat.
(E) Ceremonial and religious water use.
(F) Recreation (primary contact recreation, sport fishing, boating and aesthetic enjoyment).
(G) Commerce and navigation.
(ii)
(B) Dissolved oxygen—no measurable decrease from natural conditions.
(C) Total dissolved gas concentrations shall not exceed 110 percent of the saturation value for gases at the existing atmospheric and hydrostatic pressures at any point of sample collection.
(D) Temperature—no measurable change from natural conditions.
(E) pH—no measurable change from natural conditions.
(F) Turbidity shall not exceed 5 NTU over natural conditions.
(G) Toxic, radioactive, nonconventional, or deleterious material concentrations shall be less than those which may affect public health, the natural aquatic environment, or the desirability of the water for any use.
(6)
(ii)
(A) Wildlife habitat.
(B) Natural foodchain maintenance.
(iii) Water quality criteria.
(A) Enterococci bacteria densities shall not exceed natural conditions.
(B) Dissolved oxygen—shall not show any measurable decrease from natural conditions.
(C) Total dissolved gas shall not vary from natural conditions.
(D) Temperature—shall not show any measurable change from natural conditions.
(E) pH shall not show any measurable change from natural conditions.
(F) Settleable solids shall not show any change from natural conditions.
(G) Turbidity shall not exceed 5 NTU over natural conditions.
(H) Toxic, radioactive, or deleterious material concentrations shall not exceed those found under natural conditions.
(g)
(1) All surface waters that are tributaries to Class I waters are classified Class I, unless otherwise classified.
(2) Except for those specifically classified otherwise, all lakes with existing average concentrations less than 2000 mg/L TDS and their feeder streams on the Colville Indian Reservation are classified as Lake Class and Class I, respectively.
(3) All lakes on the Colville Indian Reservation with existing average concentrations of TDS equal to or exceeding 2000 mg/L and their feeder streams are classified as Lake Class and Class I respectively unless specifically classified otherwise.
(4) All reservoirs with a mean detention time of greater than 15 days are classified Lake Class.
(5) All reservoirs with a mean detention time of 15 days or less are classified the same as the river section in which they are located.
(6) All reservoirs established on pre-existing lakes are classified as Lake Class.
(7) All wetlands are assigned to the Special Resource Water Class.
(8) All other waters not specifically assigned to a classification of the reservation are classified as Class II.
(h)
(a)
(b)(1) EPA's Section 304(a) criteria for Priority Toxic Pollutants.
a. Criteria revised to reflect current agency q
b. The criteria refers to the inorganic form only.
c. Criteria in the matrix based on carcinogenicity (10
d. Criteria Maximum Concentration (CMC) = the highest concentration of a pollutant to which aquatic life can be exposed for a short period of time (1-hour average) without deleterious effects. Criteria Continuous Concentration (CCC) = the highest concentration of a pollutant to which aquatic life can be exposed for an extended period of time (4 days) without deleterious effects. µg/L = micrograms per liter.
e. Freshwater aquatic life criteria for these metals are expressed as a function of total hardness (mg/L as CaCO
f. Freshwater aquatic life criteria for pentachlorophenol are expressed as a function of pH, and are calculated as follows. Values displayed above in the matrix correspond to a pH of 7.8.
g. Aquatic life criteria for these compounds were issued in 1980 utilizing the 1980 Guidelines for criteria development. The acute values shown are final acute values (FAV) which by the 1980 Guidelines are instantaneous values as contrasted with a CMC which is a one-hour average.
h. These totals simply sum the criteria in each column. For aquatic life, there are 31 priority toxic pollutants with some type of freshwater or saltwater, acute or chronic criteria. For human health, there are 85 priority toxic pollutants with either “water + fish” or “fish only” criteria. Note that these totals count chromium as one pollutant even though EPA has developed criteria based on two valence states. In the matrix, EPA has assigned numbers 5a and 5b to the criteria for chromium to reflect the fact that the list of 126 priority toxic pollutants includes only a single listing for chromium.
i. If the CCC for total mercury exceeds 0.012 µg/l more than once in a 3-year period in the ambient water, the edible portion of aquatic species of concern must be analyzed to determine whether the concentration of methyl mercury exceeds the FDA action level (1.0 mg/kg). If the FDA action level is exceeded, the State must notify the appropriate EPA Regional Administrator, initiate a revision of its mercury criterion in its water quality standards so as to protect designated uses, and take other appropriate action such as issuance of a fish consumption advisory for the affected area.
j. No criteria for protection of human health from consumption of aquatic organisms (excluding water) was presented in the 1980 criteria document or in the 1986 Quality Criteria for Water. Nevertheless, sufficient information was presented in the 1980 document to allow a calculation of a criterion, even though the results of such a calculation were not shown in the document.
k. The criterion for asbestos is the MCL (56 FR 3526, January 30, 1991).
l. [Reserved: This letter not used as a footnote.]
m. Criteria for these metals are expressed as a function of the water effect ratio, WER, as defined in 40 CFR 131.36(c).
n. EPA is not promulgating human health criteria for this contaminant. However, permit authorities should address this contaminant in NPDES permit actions using the State's existing narrative criteria for toxics.
o. [Reserved: This letter not used as a footnote.]
p. Criterion expressed as total recoverable.
q. This criterion applies to total PCBs (
1. This chart lists all of EPA's priority toxic pollutants whether or not criteria recommendations are available. Blank spaces indicate the absence of criteria recommendations. Because of variations in chemical nomenclature systems, this listing of toxic pollutants does not duplicate the listing in Appendix A of 40 CFR Part 423. EPA has added the Chemical Abstracts Service (CAS) registry numbers, which provide a unique identification for each chemical.
2. The following chemicals have organoleptic based criteria recommendations that are not included on this chart (for reasons which are discussed in the preamble): copper, zinc, chlorobenzene, 2-chlorophenol, 2,4-dichlorophenol, acenaphthene, 2,4-dimethylphenol, 3-methyl-4-chlorophenol, hexachlorocyclopentadiene, pentachlorophenol, phenol.
3. For purposes of this rulemaking, freshwater criteria and saltwater criteria apply as specified in 40 CFR 131.36(c).
On April 14, 1995, the Environmental Protection Agency
(2) Factors for Calculating Hardness-Dependent, Freshwater Metals Criteria
(c)
(2) The criteria established in this section are subject to the State's general rules of applicability in the same way and to the same extent as are the other numeric toxics criteria when applied to the same use classifications including mixing zones, and low flow values below which numeric standards can be exceeded in flowing fresh waters.
(i) For all waters with mixing zone regulations or implementation procedures, the criteria apply at the appropriate locations within or at the boundary of the mixing zones; otherwise the criteria apply throughout the waterbody including at the end of any discharge pipe, canal or other discharge point.
(ii) A State shall not use a low flow value below which numeric standards can be exceeded that is less stringent than the following for waters suitable for the establishment of low flow return frequencies (i.e., streams and rivers):
(iii) If a State does not have such a low flow value for numeric standards compliance, then none shall apply and the criteria included in paragraph (d) of this section herein apply at all flows.
(3) The aquatic life criteria in the matrix in paragraph (b) of this section apply as follows:
(i) For waters in which the salinity is equal to or less than 1 part per thousand 95% or more of the time, the applicable criteria are the freshwater criteria in Column B;
(ii) For waters in which the salinity is equal to or greater than 10 parts per thousand 95% or more of the time, the applicable criteria are the saltwater criteria in Column C; and
(iii) For waters in which the salinity is between 1 and 10 parts per thousand as defined in paragraphs (c)(3) (i) and (ii) of this section, the applicable criteria are the more stringent of the freshwater or saltwater criteria. However, the Regional Administrator may approve the use of the alternative freshwater or saltwater criteria if scientifically defensible information and data demonstrate that on a site-specific basis the biology of the waterbody is dominated by freshwater aquatic life and that freshwater criteria are more appropriate; or conversely, the biology of the waterbody is dominated by saltwater aquatic life and that saltwater criteria are more appropriate.
(4)
(ii) The hardness values used shall be consistent with the design discharge conditions established in paragraph (c)(2) of this section for flows and mixing zones.
(iii) Except where otherwise noted, the criteria for metals (compounds #2, #4-# 11, and #13, in paragraph (b) of this section) are expressed as dissolved metal. For purposes of calculating aquatic life criteria for metals from the equations in footnote m. in the criteria matrix in paragraph (b)(1) of this section and the equations in paragraphs (b)(2) of this section, the water-effect ratio is computed as a specific pollutant's acute or chronic toxicity values measured in water from the site covered by the standard, divided by the respective acute or chronic toxicity value in laboratory dilution water.
(d)
(ii) The following criteria from the matrix in paragraph (b)(1) of this section apply to the use classifications identified in paragraph (d)(1)(i) of this section:
(iii) The human health criteria shall be applied at the 10
(2)
(ii) The following criteria from the matrix in paragraph (b)(1) of this section apply to the use classifications identified in paragraph (d)(2)(i) of this section:
(iii) The human health criteria shall be applied at the State-proposed 10
(3)
(ii) The following criteria from the matrix in paragraph (b)(1) of this section apply to the use classifications identified in paragraph (d)(3)(i) of this section:
(iii) The human health criteria shall be applied at the State-proposed 10
(4)
(ii) The following criteria from the matrix in paragraph (b)(1) of this section apply to the use classifications identified in paragraph (d)(4)(i) of this section:
(iii) The human health criteria shall be applied at the State-proposed 10
(5)
(ii) The following criteria from the matrix in paragraph (b)(1) of this section apply to the use classification identified in paragraph (d)(5)(i) of this section:
(iii) The human health criteria shall be applied at the State-adopted 10
(6)
(ii) The following criteria from the matrix paragraph (b)(1) of this section apply to the use classifications identified in paragraph (d)(6)(i) of this section:
(iii) The human health criteria shall be applied at the State-adopted 10
(7)-(8) [Reserved]
(9)
(ii) The following criteria from the matrix in paragraph (b)(1) of this section apply to the use classifications identified in paragraph (d)(9)(i) of this section:
(iii) The human health criteria shall be applied at the State-adopted 10
(10)
(ii) The following criteria from the matrix in paragraph (b)(1) of this section apply to the water and use classifications defined in paragraph (d)(10)(i) of this section and identified below:
(iii) The human health criteria shall be applied at the State-adopted 10
(11)
(ii) The following criteria from matrix in paragraph (b)(1) of this section apply to the waters defined in paragraph (d)(11)(i) of this section and identified below:
(iii) The human health criteria shall be applied at the 10
(12)
(ii) The following criteria from the matrix in paragraph (b)(1) of this section apply to the use classifications identified in paragraph (d)(12)(i) of this section:
(iii) The human health criteria shall be applied at the State-proposed risk level of 10
(13) [Reserved]
(14)
(ii) The following criteria from the matrix in paragraph (b)(1) of this section apply to the use classifications identified in paragraph (d)(14)(i) of this section:
(iii) The human health criteria shall be applied at the State proposed risk level of 10
(a)
(1)
(B) The Roe Island criteria apply at the salinity measuring station maintained by the U.S. Bureau of Reclamation at Port Chicago (km 64). The Chipps Island criteria apply at the Mallard Slough Monitoring Site, Station D-10 (RKI RSAC-075) maintained by the California Department of Water Resources. The Confluence criteria apply at the Collinsville Continuous Monitoring Station C-2 (RKI RSAC-081) maintained by the California Department of Water Resources.
(ii)
(2)
(B)
(ii)
(A) The Chipps Island smolt survival index is calculated as:
(B) Recoveries of tagged fish from the ocean salmon fishery two to four years after release are also used to calculate a survival index for each release. Smolt survival indices from ocean recoveries are calculated as:
(
(
(iii)
(A) Fish for release are to be tagged at the hatchery with coded-wire tags, and fin clipped. Approximately 50,000 to 100,000 fish of smolt size (size greater than 75 mm) are released for each survival index estimate, depending on expected mortality. As a control for the ocean recovery survival index, one or two groups per season are released at Benicia or Pt. Chicago. From each upstream release of tagged fish, fish are to be caught over a period of one to two weeks at Chipps Island. Daylight sampling at Chipps Island with a 9.1 by 7.9 m, 3.2 mm cod end, midwater trawl is begun 2 to 3 days after release. When the first fish is caught, full-time trawling 7 days a week should begin. Each day's trawling consists of ten 20 minute tows generally made against the current, and distributed equally across the channel.
(B) The Chipps Island smolt survival index is calculated as:
(C) Recoveries of tagged fish from the ocean salmon fishery two to four years after release are also used to calculate a survival index for each release. Smolt survival indices from ocean recoveries are calculated as:
(
(
(3)
(ii) [Reserved]
(b)
(c)
(1)
(2)
(i) Sacramento River at Band Bridge, near Red Bluff;
(ii) Feather River, total inflow to Oroville Reservoir;
(iii) Yuba River at Smartville;
(iv) American River, total inflow to Folsom Reservoir;
(v) Stanislaus River, total inflow to New Melones Reservoir;
(vi) Tuolumne River, total inflow to Don Pedro Reservoir;
(vii) Merced River, total inflow to Exchequer Reservoir; and
(viii) San Joaquin River, total inflow to Millerton Lake.
(3)
(ii)
(4)
(a)
(b)(1) Criteria for Priority Toxic Pollutants in the State of California as described in the following table:
a. Criteria revised to reflect the Agency q1* or RfD, as contained in the Integrated Risk Information System (IRIS) as of October 1, 1996. The fish tissue bioconcentration factor (BCF) from the 1980 documents was retained in each case.
b. Criteria apply to California waters except for those waters subject to objectives in Tables III-2A and III-2B of the San Francisco Regional Water Quality Control Board's (SFRWQCB) 1986 Basin Plan that were adopted by the SFRWQCB and the State Water Resources Control Board, approved by EPA, and which continue to apply. For copper and nickel, criteria apply to California waters except for waters south of Dumbarton Bridge in San Francisco Bay that are subject to the objectives in the SFRWQCB's Basin Plan as amended by SFRWQCB Resolution R2-2002-0061, dated May 22, 2002, and approved by the State Water Resources Control Board. EPA approved the aquatic life site-specific objectives on January 21, 2003. The copper and nickel aquatic life site-specific objectives contained in the amended Basin Plan apply instead.
c. Criteria are based on carcinogenicity of 10 (-6) risk.
d. Criteria Maximum Concentration (CMC) equals the highest concentration of a pollutant to which aquatic life can be exposed for a short period of time without deleterious effects. Criteria Continuous Concentration (CCC) equals the highest concentration of a pollutant to which aquatic life can be exposed for an extended period of time (4 days) without deleterious effects. ug/L equals micrograms per liter.
e. Freshwater aquatic life criteria for metals are expressed as a function of total hardness (mg/L) in the water body. The equations are provided in matrix at paragraph (b)(2) of this section. Values displayed above in the matrix correspond to a total hardness of 100 mg/l.
f. Freshwater aquatic life criteria for pentachlorophenol are expressed as a function of pH, and are calculated as follows:
g. This criterion is based on 304(a) aquatic life criterion issued in 1980, and was issued in one of the following documents: Aldrin/Dieldrin (EPA 440/5-80-019), Chlordane (EPA 440/5-80-027), DDT (EPA 440/5-80-038), Endosulfan (EPA 440/5-80-046), Endrin (EPA 440/5-80-047), Heptachlor (440/5-80-052), Hexachlorocyclohexane (EPA 440/5-80-054), Silver (EPA 440/5-80-071). The Minimum Data Requirements and derivation procedures were different in the 1980 Guidelines than in the 1985 Guidelines. For example, a “CMC” derived using the 1980 Guidelines was derived to be used as an instantaneous maximum. If assessment is to be done using an averaging period, the values given should be divided by 2 to obtain a value that is more comparable to a CMC derived using the 1985 Guidelines.
h. These totals simply sum the criteria in each column. For aquatic life, there are 23 priority toxic pollutants with some type of freshwater or saltwater, acute or chronic criteria. For human health, there are 92 priority toxic pollutants with either “water + organism” or “organism only” criteria. Note that these totals count chromium as one pollutant even though EPA has developed criteria based on two valence states. In the matrix, EPA has assigned numbers 5a and 5b to the criteria for chromium to reflect the fact that the list of 126 priority pollutants includes only a single listing for chromium.
i. Criteria for these metals are expressed as a function of the water-effect ratio, WER, as defined in paragraph (c) of this section. CMC = column B1 or C1 value×WER; CCC = column B2 or C2 value×WER.
j. No criterion for protection of human health from consumption of aquatic organisms (excluding water) was presented in the 1980 criteria document or in the 1986 Quality Criteria for Water. Nevertheless, sufficient information was presented in the 1980 document to allow a calculation of a criterion, even though the results of such a calculation were not shown in the document.
k. The CWA 304(a) criterion for asbestos is the MCL.
l. [Reserved]
m. These freshwater and saltwater criteria for metals are expressed in terms of the dissolved fraction of the metal in the water column. Criterion values were calculated by using EPA's Clean Water Act 304(a) guidance values (described in the total recoverable fraction) and then applying the conversion factors in § 131.36(b)(1) and (2).
n. EPA is not promulgating human health criteria for these contaminants. However, permit authorities should address these contaminants in NPDES permit actions using the State's existing narrative criteria for toxics.
o. These criteria were promulgated for specific waters in California in the National Toxics Rule (“NTR”), at § 131.36. The specific waters to which the NTR criteria apply include: Waters of the State defined as bays or estuaries and waters of the State defined as inland, i.e., all surface waters of the State not ocean waters. These waters specifically include the San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta. This section does not apply instead of the NTR for this criterion.
p. A criterion of 20 ug/l was promulgated for specific waters in California in the NTR and was promulgated in the total recoverable form. The specific waters to which the NTR criterion applies include: Waters of the San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta; and waters of Salt Slough, Mud Slough (north) and the San Joaquin River, Sack Dam to the mouth of the Merced River. This section does not apply instead of the NTR for this criterion. The State of California adopted and EPA approved a site specific criterion for the San Joaquin River, mouth of Merced to Vernalis; therefore, this section does not apply to these waters.
q. This criterion is expressed in the total recoverable form. This criterion was promulgated for specific waters in California in the NTR and was promulgated in the total recoverable form. The specific waters to which the NTR criterion applies include: Waters of the San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta; and waters of Salt Slough, Mud Slough (north) and the San Joaquin River, Sack Dam to Vernalis. This criterion does not apply instead of the NTR for these waters. This criterion applies to additional waters of the United States in the State of California pursuant to 40 CFR 131.38(c). The State of California adopted and EPA approved a site-specific criterion for the Grassland Water District, San Luis National Wildlife Refuge, and the Los Banos State Wildlife Refuge; therefore, this criterion does not apply to these waters.
r. These criteria were promulgated for specific waters in California in the NTR. The specific waters to which the NTR criteria apply include: Waters of the State defined as bays or estuaries including the San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta. This section does not apply instead of the NTR for these criteria.
s. These criteria were promulgated for specific waters in California in the NTR. The specific waters to which the NTR criteria apply include: Waters of the Sacramento-San Joaquin Delta and waters of the State defined as inland (
t. These criteria were promulgated for specific waters in California in the NTR. The specific waters to which the NTR criteria apply include: Waters of the State defined as bays and estuaries including San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta; and waters of the State defined as inland (i.e., all surface waters of the State not bays or estuaries or ocean) without a MUN use designation. This section does not apply instead of the NTR for these criteria.
u. PCBs are a class of chemicals which include aroclors 1242, 1254, 1221, 1232, 1248, 1260, and 1016, CAS numbers 53469219, 11097691, 11104282, 11141165, 12672296, 11096825, and 12674112, respectively. The aquatic life criteria apply to the sum of this set of seven aroclors.
v. This criterion applies to total PCBs, e.g., the sum of all congener or isomer or homolog or aroclor analyses.
w. This criterion has been recalculated pursuant to the 1995 Updates: Water Quality Criteria Documents for the Protection of Aquatic Life in Ambient Water, Office of Water, EPA-820-B-96-001, September 1996. See also Great Lakes Water Quality Initiative Criteria Documents for the Protection of Aquatic Life in Ambient Water, Office of Water, EPA-80-B-95-004, March 1995.
x. The State of California has adopted and EPA has approved site specific criteria for the Sacramento River (and tributaries) above Hamilton City; therefore, these criteria do not apply to these waters.
1. The table in this paragraph (b)(1) lists all of EPA's priority toxic pollutants whether or not criteria guidance are available. Blank spaces indicate the absence of national section 304(a) criteria guidance. Because of variations in chemical nomenclature systems, this listing of toxic pollutants does not duplicate the listing in Appendix A to 40 CFR Part 423-126 Priority Pollutants. EPA has added the Chemical Abstracts Service (CAS) registry numbers, which provide a unique identification for each chemical.
2. The following chemicals have organoleptic-based criteria recommendations that are not included on this chart: zinc, 3-methyl-4-chlorophenol.
3. Freshwater and saltwater aquatic life criteria apply as specified in paragraph (c)(3) of this section.
(2) Factors for Calculating Metals Criteria. Final CMC and CCC values should be rounded to two significant figures.
(iv) Table 2 to paragraph (b)(2) of this section:
The term “Conversion Factor” represents the recommended conversion factor for converting a metal criterion expressed as the total recoverable fraction in the water column to a criterion expressed as the dissolved fraction in the water column. See “Office of Water Policy and Technical Guidance on Interpretation and Implementation of Aquatic Life Metals Criteria”, October 1, 1993, by Martha G. Prothro, Acting Assistant Administrator for Water available from Water Resource Center, USEPA, Mailcode RC4100, M Street SW, Washington, DC 20460 and the note to § 131.36(b)(1).
(v) Table 3 to paragraph (b)(2) of this section:
(c)
(2) The criteria established in this section are subject to the State's general rules of applicability in the same way and to the same extent as are other Federally-adopted and State-adopted numeric toxics criteria when applied to the same use classifications including mixing zones, and low flow values below which numeric standards can be exceeded in flowing fresh waters.
(i) For all waters with mixing zone regulations or implementation procedures, the criteria apply at the appropriate locations within or at the boundary of the mixing zones; otherwise the criteria apply throughout the water body including at the point of discharge into the water body.
(ii) The State shall not use a low flow value below which numeric standards can be exceeded that is less stringent than the flows in Table 4 to paragraph (c)(2) of this section for streams and rivers.
(iii) Table 4 to paragraph (c)(2) of this section:
1. CMC (Criteria Maximum Concentration) is the water quality criteria to protect against acute effects in aquatic life and is the highest instream concentration of a priority toxic pollutant consisting of a short-term average not to be exceeded more than once every three years on the average.
2. CCC (Continuous Criteria Concentration) is the water quality criteria to protect against chronic effects in aquatic life and is the highest in stream concentration of a priority toxic pollutant consisting of a 4-day average not to be exceeded more than once every three years on the average.
3. 1 Q 10 is the lowest one day flow with an average recurrence frequency of once in 10 years determined hydrologically.
4. 1 B 3 is biologically based and indicates an allowable exceedence of once every 3 years. It is determined by EPA's computerized method (DFLOW model).
5. 7 Q 10 is the lowest average 7 consecutive day low flow with an average recurrence frequency of once in 10 years determined hydrologically.
6. 4 B 3 is biologically based and indicates an allowable exceedence for 4 consecutive days once every 3 years. It is determined by EPA's computerized method (DFLOW model).
(iv) If the State does not have such a low flow value below which numeric standards do not apply, then the criteria included in paragraph (d) of this section apply at all flows.
(v) If the CMC short-term averaging period, the CCC four-day averaging period, or once in three-year frequency is inappropriate for a criterion or the site to which a criterion applies, the State may apply to EPA for approval of an alternative averaging period, frequency, and related design flow. The State must submit to EPA the bases for any alternative averaging period, frequency, and related design flow. Before approving any change, EPA will publish for public comment, a document proposing the change.
(3) The freshwater and saltwater aquatic life criteria in the matrix in paragraph (b)(1) of this section apply as follows:
(i) For waters in which the salinity is equal to or less than 1 part per thousand 95% or more of the time, the applicable criteria are the freshwater criteria in Column B;
(ii) For waters in which the salinity is equal to or greater than 10 parts per thousand 95% or more of the time, the applicable criteria are the saltwater criteria in Column C except for selenium in the San Francisco Bay estuary where the applicable criteria are the freshwater criteria in Column B (refer to footnotes p and q to the table in paragraph (b)(1) of this section); and
(iii) For waters in which the salinity is between 1 and 10 parts per thousand as defined in paragraphs (c)(3)(i) and (ii) of this section, the applicable criteria are the more stringent of the freshwater or saltwater criteria. However, the Regional Administrator may approve the use of the alternative freshwater or saltwater criteria if scientifically defensible information and data demonstrate that on a site-specific basis the biology of the water body is dominated by freshwater aquatic life and that freshwater criteria are more appropriate; or conversely, the biology of the water body is dominated by saltwater aquatic life and that saltwater criteria are more appropriate. Before approving any change, EPA will publish for public comment a document proposing the change.
(4)
(ii) The hardness values used shall be consistent with the design discharge conditions established in paragraph (c)(2) of this section for design flows and mixing zones.
(iii) The criteria for metals (compounds #1—#13 in the table in paragraph (b)(1) of this section) are expressed as dissolved except where otherwise noted. For purposes of calculating aquatic life criteria for metals from the equations in footnote i to the table in paragraph (b)(1) of this section and the equations in paragraph (b)(2) of this section, the water effect ratio is generally computed as a specific pollutant's acute or chronic toxicity value measured in water from the site covered by the standard, divided by the respective acute or chronic toxicity value in laboratory dilution water. To use a water effect ratio other than the default of 1, the WER must be determined as set forth in Interim Guidance on Determination and Use of Water Effect Ratios, U.S. EPA Office of Water,
(d)(1) Except as specified in paragraph (d)(3) of this section, all waters assigned any aquatic life or human health use classifications in the Water Quality Control Plans for the various Basins of the State (“Basin Plans”) adopted by the California State Water Resources Control Board (“SWRCB”), except for ocean waters covered by the Water Quality Control Plan for Ocean Waters of California (“Ocean Plan”) adopted by the SWRCB with resolution Number 90-27 on March 22, 1990, are subject to the criteria in paragraph (d)(2) of this section, without exception. These criteria apply to waters identified in the Basin Plans. More particularly, these criteria apply to waters identified in the Basin Plan chapters designating beneficial uses for waters within the region. Although the State has adopted several use designations for each of these waters, for purposes of this action, the specific standards to be applied in paragraph (d)(2) of this section are based on the presence in all waters of some aquatic life designation and the presence or absence of the MUN use designation (municipal and domestic supply). (See Basin Plans for more detailed use definitions.)
(2) The criteria from the table in paragraph (b)(1) of this section apply to the water and use classifications defined in paragraph (d)(1) of this section as follows:
(3) Nothing in this section is intended to apply instead of specific criteria, including specific criteria for the San Francisco Bay estuary, promulgated for California in the National Toxics Rule at § 131.36.
(4) The human health criteria shall be applied at the State-adopted 10 (−6) risk level.
(5) Nothing in this section applies to waters located in Indian Country.
(e)
(2) When a permit issued on or after May 18, 2000 to a new discharger contains a WQBEL based on water quality criteria set forth in paragraph (b) of this section, the permittee shall comply with such WQBEL upon the commencement of the discharge. A new discharger is defined as any building, structure, facility, or installation from
(3) Where an existing discharger reasonably believes that it will be infeasible to promptly comply with a new or more restrictive WQBEL based on the water quality criteria set forth in this section, the discharger may request approval from the permit issuing authority for a schedule of compliance.
(4) A compliance schedule shall require compliance with WQBELs based on water quality criteria set forth in paragraph (b) of this section as soon as possible, taking into account the dischargers' technical ability to achieve compliance with such WQBEL.
(5) If the schedule of compliance exceeds one year from the date of permit issuance, reissuance or modification, the schedule shall set forth interim requirements and dates for their achievement. The dates of completion between each requirement may not exceed one year. If the time necessary for completion of any requirement is more than one year and is not readily divisible into stages for completion, the permit shall require, at a minimum, specified dates for annual submission of progress reports on the status of interim requirements.
(6) In no event shall the permit issuing authority approve a schedule of compliance for a point source discharge which exceeds five years from the date of permit issuance, reissuance, or modification, whichever is sooner. Where shorter schedules of compliance are prescribed or schedules of compliance are prohibited by law, those provisions shall govern.
(7) If a schedule of compliance exceeds the term of a permit, interim permit limits effective during the permit shall be included in the permit and addressed in the permit's fact sheet or statement of basis. The administrative record for the permit shall reflect final permit limits and final compliance dates. Final compliance dates for final permit limits, which do not occur during the term of the permit, must occur within five years from the date of issuance, reissuance or modification of the permit which initiates the compliance schedule. Where shorter schedules of compliance are prescribed or schedules of compliance are prohibited by law, those provisions shall govern.
(8) The provisions in this paragraph (e), Schedules of compliance, shall expire on May 18, 2005.
At 66 FR 9961, Feb. 13, 2001, § 131.38 was amended in the table to paragraph (b)(1) under the column heading for “B Freshwater” by revising the column headings for “Criterion Maximum Concentration” and “Criterion Continuous Concentration”; under the column heading for “C Saltwater” by revising the column headings for “Criterion Maximum Concentration” and “Criterion Continuous Concentration”; and by revising entries “23.” and “67.”, effective Feb. 13, 2001. However, this is a photographed table and the amendments could not be incorporated into the text. For the convenience of the user, the amended text is set forth as follows:
(b)(1) * * *
(a)
(b)
Bacteria: The fecal coliform geometric mean of a series of representative samples (at least five samples) of the waters taken sequentially shall not exceed 200 colonies/100 ml, and not more than 20 percent of the samples shall exceed 400 colonies/100 ml. The enterococci density in terms of geometric mean of at least five representative samples taken sequentially shall not exceed 35/100 ml. No single sample should exceed the upper confidence limit of 75% using 0.7 as the log standard deviation until sufficient site data exist to establish a site-specific log standard deviation.
(c)
(2) A water quality standard variance shall not be granted if:
(i) Standards will be attained by implementing effluent limitations required under sections 301(b) and 306 of the CWA and by the permittee implementing reasonable best management practices for nonpoint source control; or
(ii) The variance would likely jeopardize the continued existence of any threatened or endangered species listed under section 4 of the Endangered Species Act or result in the destruction or adverse modification of such species' critical habitat.
(3) A water quality standards variance may be granted if the applicant demonstrates to EPA that attaining the water quality standard is not feasible because:
(i) Naturally occurring pollutant concentrations prevent the attainment of the use;
(ii) Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating Commonwealth water conservation requirements to enable uses to be met;
(iii) Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place;
(iv) Dams, diversions or other types of hydrologic modifications preclude the attainment of the use, and it is not feasible to restore the waterbody to its original condition or to operate such modification in a way which would result in the attainment of the use;
(v) Physical conditions related to the natural features of the waterbody, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like
(vi) Controls more stringent than those required by sections 301(b) and 306 of the CWA would result in substantial and widespread economic and social impact.
(4) Procedures. An applicant for a water quality standards variance shall submit a request to the Regional Administrator of EPA Region 2. The application shall include all relevant information showing that the requirements for a variance have been met. The applicant must demonstrate that the designated use is unattainable for one of the reasons specified in paragraph (c)(3) of this section. If the Regional Administrator preliminarily determines that grounds exist for granting a variance, he/she shall provide public notice of the proposed variance and provide an opportunity for public comment. Any activities required as a condition of the Regional Administrator's granting of a variance shall be included as conditions of the NPDES permit for the applicant. These terms and conditions shall be incorporated into the applicant's NPDES permit through the permit reissuance process or through a modification of the permit pursuant to the applicable permit modification provisions of Puerto Rico's NPDES program.
(5) A variance may not exceed five years or the term of the NPDES permit, whichever is less. A variance may be renewed if the applicant reapplies and demonstrates that the use in question is still not attainable. Renewal of the variance may be denied if the applicant did not comply with the conditions of the original variance, or otherwise does not meet the requirements of this section.
(a)
(b)
(2)
(3)
(4)
(5)
(6)
(7)
(c)
(2) Marine waters:
(3) As an alternative to the single sample maximum in paragraph (c)(1) or (c)(2) of this section, States may use a site-specific log standard deviation to calculate a single sample maximum for individual coastal recreation waters, but must use at least 30 samples from a single recreation season to do so.
(d)
(2) The criteria established in this section are subject to the State's general rules of applicability in the same way and to the same extent as are other Federally-adopted and State-adopted numeric criteria when applied to the same use classifications.
(e)
(2) The criteria in paragraph (c)(2) of this section apply to marine coastal recreation waters of the following States: Alaska, California (except for coastal recreation waters within the jurisdiction of Regional Board 4), Florida, Georgia, Hawaii (except for coastal recreation waters within 300 meters of the shoreline), Louisiana, Maine (except for SA waters and SB and SC waters with human sources of fecal contamination), Maryland, Massachusetts, Mississippi, New York, North Carolina, Oregon, Puerto Rico (except for waters classified by Puerto Rico as intensely used for primary contact recreation and for those waters included in § 131.40), Rhode Island, United States Virgin Islands.
(f)
(2) When a permit issued on or after December 16, 2004, to a new pathogen discharger as defined in paragraph (b) of this section contains water quality-based effluent limitations based on water quality criteria set forth in paragraph (c) of this section, the permittee shall comply with such water quality-based effluent limitations upon the commencement of the discharge.
(3) Where an existing pathogen discharger reasonably believes that it will be infeasible to comply immediately with a new or more restrictive water quality-based effluent limitations based on the water quality criteria set forth in paragraph (c) of this section, the discharger may request approval from the permit issuing authority for a schedule of compliance.
(4) A compliance schedule for an existing pathogen discharger shall require compliance with water quality-based effluent limitations based on water quality criteria set forth in paragraph (c) of this section as soon as possible, taking into account the discharger's ability to achieve compliance with such water quality-based effluent limitations.
(5) If the schedule of compliance for an existing pathogen discharger exceeds one year from the date of permit issuance, reissuance or modification, the schedule shall set forth interim requirements and dates for their achievement. The period between dates of completion for each requirement may not exceed one year.
If the time necessary for completion of any requirement is more than one year and the requirement is not readily divisible into stages for completion, the permit shall require, at a minimum, specified dates for annual submission of progress reports on the status of interim requirements.
(6) In no event shall the permit issuing authority approve a schedule of compliance for an existing pathogen discharge which exceeds five years from the date of permit issuance, reissuance, or modification, whichever is sooner.
(7) If a schedule of compliance exceeds the term of a permit, interim permit limits effective during the permit shall be included in the permit and addressed in the permit's fact sheet or statement of basis. The administrative record for the permit shall reflect final permit limits and final compliance dates. Final compliance dates for final permit limits, which do not occur during the term of the permit, must occur within five years from the date of issuance, reissuance or modification of the permit which initiates the compliance schedule.
33 U.S.C. 1251
(a) This part constitutes the Water Quality Guidance for the Great Lakes System (Guidance) required by section 118(c)(2) of the Clean Water Act (33 U.S.C. 1251
(b) The U.S. Environmental Protection Agency, Great Lakes States, and Great Lakes Tribes will use the Guidance in this part to evaluate the water quality programs of the States and Tribes to assure that they are protective of water quality. State and Tribal programs do not need to be identical to the Guidance in this part, but must contain provisions that are consistent with (as protective as) the Guidance in this part. The scientific, policy and legal basis for EPA's development of each section of the final Guidance in this part is set forth in the preamble, Supplementary Information Document, Technical Support Documents, and other supporting documents in the public docket. EPA will follow the guidance set out in these documents in reviewing the State and Tribal water quality programs in the Great Lakes for consistency with this part.
(c) The Great Lakes States and Tribes must adopt provisions consistent with the Guidance in this part applicable to waters in the Great Lakes System or be subject to EPA promulgation of its terms pursuant to this part.
(d) EPA understands that the science of risk assessment is rapidly improving. Therefore, to ensure that the scientific basis for the methodologies in appendices A through D are always current and peer reviewed, EPA will review the methodologies and revise them, as appropriate, every 3 years.
(e) Certain documents referenced in the appendixes to this part with a designation of NTIS and/or ERIC are available for a fee upon request to the National Technical Information Center (NTIS), U.S. Department of Commerce, 5285 Port Royal Road, Springfield, VA 22161. Alternatively, copies may be obtained for a fee upon request to the Educational Resources Information Center/Clearinghouse for Science, Mathematics, and Environmental Education (ERIC/CSMEE), 1200 Chambers Road, Room 310, Columbus, Ohio 43212. When ordering, please include the NTIS or ERIC/CSMEE accession number.
The following definitions apply in this part. Terms not defined in this section have the meaning given by the Clean Water Act and EPA implementing regulations.
The Great Lakes States and Tribes shall adopt numeric water quality criteria for the purposes of section 303(c) of the Clean Water Act applicable to waters of the Great Lakes System in accordance with § 132.4(d) that are consistent with:
(a) The acute water quality criteria for protection of aquatic life in Table 1 of this part, or a site-specific modification thereof in accordance with procedure 1 of appendix F of this part;
(b) The chronic water quality criteria for protection of aquatic life in Table 2 of this part, or a site-specific modification thereof in accordance with procedure 1 of appendix F of this part;
(c) The water quality criteria for protection of human health in Table 3 of this part, or a site-specific modification thereof in accordance with procedure 1 of appendix F of this part; and
(d) The water quality criteria for protection of wildlife in Table 4 of this part, or a site-specific modification thereof in accordance with procedure 1 of appendix F of this part.
(a) The Great Lakes States and Tribes shall adopt requirements applicable to waters of the Great Lakes System for the purposes of sections 118, 301, 303, and 402 of the Clean Water Act that are consistent with:
(1) The definitions in § 132.2;
(2) The Methodologies for Development of Aquatic Life Criteria and Values in appendix A of this part;
(3) The Methodology for Development of Bioaccumulation Factors in appendix B of this part;
(4) The Methodologies for Development of Human Health Criteria and Values in appendix C of this part;
(5) The Methodology for Development of Wildlife Criteria in appendix D of this part;
(6) The Antidegradation Policy in appendix E of this part; and
(7) The Implementation Procedures in appendix F of this part.
(b) Except as provided in paragraphs (g), (h), and (i) of this section, the Great Lakes States and Tribes shall use methodologies consistent with the methodologies designated as Tier I methodologies in appendixes A, C, and D of this part, the methodology in appendix B of this part, and the procedures in appendix F of this part when adopting or revising numeric water quality criteria for the purposes of section 303(c) of the Clean Water Act for the Great Lakes System.
(c) Except as provided in paragraphs (g), (h), and (i) of this section, the Great Lakes States and Tribes shall use methodologies and procedures consistent with the methodologies designated as Tier I methodologies in appendixes A, C, and D of this part, the Tier II methodologies in appendixes A and C of this part, the methodology in appendix B of this part, and the procedures in appendix F of this part to develop numeric criteria and values when implementing narrative water quality criteria adopted for purposes of section 303(c) of the Clean Water Act.
(d) The water quality criteria and values adopted or developed pursuant to paragraphs (a) through (c) of this section shall apply as follows:
(1) The acute water quality criteria and values for the protection of aquatic life, or site-specific modifications thereof, shall apply to all waters of the Great Lakes System.
(2) The chronic water quality criteria and values for the protection of aquatic life, or site-specific modifications thereof, shall apply to all waters of the Great Lakes System.
(3) The water quality criteria and values for protection of human health, or site-specific modifications thereof, shall apply as follows:
(i) Criteria and values derived as HCV-Drinking and HNV-Drinking shall apply to the Open Waters of the Great Lakes, all connecting channels of the Great Lakes, and all other waters of the Great Lakes System that have been designated as public water supplies by any State or Tribe in accordance with 40 CFR 131.10.
(ii) Criteria and values derived as HCV-Nondrinking and HNV-Nondrinking shall apply to all waters of the Great Lakes System other than those in paragraph (d)(3)(i) of this section.
(4) Criteria for protection of wildlife, or site-specific modifications thereof, shall apply to all waters of the Great Lakes System.
(e) The Great Lakes States and Tribes shall apply implementation procedures consistent with the procedures in appendix F of this part for all applicable purposes under the Clean Water Act, including developing total maximum daily loads for the purposes of section 303(d) and water quality-based effluent limits for the purposes of section 402, in establishing controls on the discharge of any pollutant to the Great Lakes System by any point source with the following exceptions:
(1) The Great Lakes States and Tribes are not required to apply these implementation procedures in establishing controls on the discharge of any pollutant by a wet weather point source. Any adopted implementation
(2) The Great Lakes States and Tribes may, but are not required to, apply procedures consistent with procedures 1, 2, 3, 4, 5, 7, 8, and 9 of appendix F of this part in establishing controls on the discharge of any pollutant set forth in Table 5 of this part. Any procedures applied in lieu of these implementation procedures shall conform with all applicable Federal, State, and Tribal requirements.
(f) The Great Lakes States and Tribes shall apply an antidegradation policy consistent with the policy in appendix E for all applicable purposes under the Clean Water Act, including 40 CFR 131.12.
(g) For pollutants listed in Table 5 of this part, the Great Lakes States and Tribes shall:
(1) Apply any methodologies and procedures acceptable under 40 CFR part 131 when developing water quality criteria or implementing narrative criteria; and
(2) Apply the implementation procedures in appendix F of this part or alternative procedures consistent with all applicable Federal, State, and Tribal laws.
(h) For any pollutant other than those in Table 5 of this part for which the State or Tribe demonstrates that a methodology or procedure in this part is not scientifically defensible, the Great Lakes States and Tribes shall:
(1) Apply an alternative methodology or procedure acceptable under 40 CFR part 131 when developing water quality criteria; or
(2) Apply an alternative implementation procedure that is consistent with all applicable Federal, State, and Tribal laws.
(i) Nothing in this part shall prohibit the Great Lakes States and Tribes from adopting numeric water quality criteria, narrative criteria, or water quality values that are more stringent than criteria or values specified in § 132.3 or that would be derived from application of the methodologies set forth in appendixes A, B, C, and D of this part, or to adopt antidegradation standards and implementation procedures more stringent than those set forth in appendixes E and F of this part.
(a) Except as provided in paragraph (c) of this section, the Great Lakes States and Tribes shall adopt and submit for EPA review and approval the criteria, methodologies, policies, and procedures developed pursuant to this part no later than September 23, 1996. With respect to procedure 3.C of appendix F of this part, each Great Lakes State and Tribe shall make its submission to EPA no later than May 13, 2002.
(b) The following elements must be included in each submission to EPA for review:
(1) The criteria, methodologies, policies, and procedures developed pursuant to this part;
(2) Certification by the Attorney General or other appropriate legal authority pursuant to 40 CFR 123.62 and 40 CFR 131.6(e) as appropriate;
(3) All other information required for submission of National Pollutant Discharge Elimination System (NPDES) program modifications under 40 CFR 123.62; and
(4) General information which will aid EPA in determining whether the criteria, methodologies, policies and procedures are consistent with the requirements of the Clean Water Act and this part, as well as information on general policies which may affect their application and implementation.
(c) The Regional Administrator may extend the deadline for the submission required in paragraph (a) of this section if the Regional Administrator believes that the submission will be consistent with the requirements of this part and can be reviewed and approved pursuant to this section no later than March 23, 1997, or, for procedure 3.C of appendix F of this part, no later than November 13, 2002.
(d) If a Great Lakes State or Tribe makes no submission pursuant to this part to EPA for review, the requirements of this part shall apply to discharges to waters of the Great Lakes System located within the State or Federal Indian reservation upon EPA's publication of a final rule indicating
(e) If a Great Lakes State or Tribe submits criteria, methodologies, policies, and procedures pursuant to this part to EPA for review that contain substantial modifications of the State or Tribal NPDES program, EPA shall issue public notice and provide a minimum of 30 days for public comment on such modifications. The public notice shall conform with the requirements of 40 CFR 123.62.
(f) After review of State or Tribal submissions under this section, and following the public comment period in subparagraph (e) of this section, if any, EPA shall either:
(1) Publish notice of approval of the submission in the
(2) Notify the State or Tribe within 90 days of such submission that EPA has determined that all or part of the submission is inconsistent with the requirements of the Clean Water Act or this part and identify any necessary changes to obtain EPA approval. If the State or Tribe fails to adopt such changes within 90 days after the notification, EPA shall publish a notice in the
(g) EPA's approval or disapproval of a State or Tribal submission shall be based on the requirements of this part and of the Clean Water Act. EPA's determination whether the criteria, methodologies, policies, and procedures in a State or Tribal submission are consistent with the requirements of this part will be based on whether:
(1)
(2)
(i) It has adopted numeric criteria in its water quality standards that were derived, or are as protective as or more protective than could be derived, using the methodologies in appendixes A, B, C, and D of this part, and the site-specific criteria modification procedures in accordance with procedure 1 of appendix F of this part; or
(ii) It has adopted a procedure by which water quality-based effluent limits and total maximum daily loads are developed using the more protective of:
(A) Numeric criteria adopted by the State into State water quality standards and approved by EPA prior to March 23, 1997; or
(B) Water quality criteria and values derived pursuant to § 132.4(c); and
(3)
(h) A submission by a Great Lakes State or Tribe will need to include any provisions that EPA determines, based on EPA's authorities under the Clean Water Act and the results of consultation under section 7 of the Endangered Species Act, are necessary to ensure that water quality is not likely to jeopardize the continued existence of any endangered or threatened species listed under section 4 of the Endangered Species Act or result in the destruction or adverse modification of such species' critical habitat.
(i) EPA's approval of the elements of a State's or Tribe's submission will constitute approval under section 118 of the Clean Water Act, approval of the
(a) Effective September 5, 2000, the requirements of Paragraph C.1 of Procedure 2 in Appendix F of this Part and the requirements of paragraph F.2 of Procedure 5 in Appendix F of this Part shall apply to discharges within the Great Lakes System in the State of Indiana.
(b) Effective September 5, 2000, the requirements of Procedure 3 in Appendix F of this Part shall apply for purposes of developing total maximum daily loads in the Great Lakes System in the State of Illinois.
(c) Effective September 5, 2000, the requirements of Paragraphs C.1 and D of Procedure 6 in Appendix F of this Part shall apply to discharges within the Great Lakes System in the States of Indiana, Michigan and Ohio.
(d) Effective November 6, 2000, § 132.4(d)(2) shall apply to waters designated as “Class D” under section 701.9 of Title 6 of the New York State Codes, Rules and Regulations within the Great Lakes System in the State of New York. For purposes of this paragraph, chronic water quality criteria and values for the protection of aquatic life adopted or developed pursuant to § 132.4(a) through (c) are the criteria and values adopted or developed by New York State Department of Environmental Conservation (see section 703.5 of Title 6 of the New York State Codes, Rules and Regulations) and approved by EPA under section 303(c) of the Clean Water Act.
(e) Effective November 6, 2000, the criteria for mercury contained in Table 4 of this part shall apply to waters within the Great Lakes System in the State of New York.
(f) Effective December 6, 2000, the acute and chronic aquatic life criteria for copper and nickel in Tables 1 and 2 of this part and the chronic aquatic life criterion for endrin in Table 2 of this part shall apply to the waters of the Great Lakes System in the State of Wisconsin.
(g) Effective February 5, 2001, the chronic aquatic life criterion for selenium in Table 2 of this part shall apply to the waters of the Great Lakes System in the State of Wisconsin.
(h) Effective December 6, 2000, the requirements of procedure 3 in appendix F of this part shall apply for purposes of developing total maximum daily loads in the Great Lakes System in the State of Wisconsin.
(i) Effective December 6, 2000, the requirements of paragraphs D and E of procedure 5 in appendix F of this part shall apply to discharges within the Great Lakes System in the State of Wisconsin.
(j) Effective December 6, 2000, the requirements of paragraph D of procedure 6 in appendix F of this part shall apply to discharges within the Great Lakes System in the State of Wisconsin.
EPA recommends that metals criteria be expressed as dissolved concentrations (see appendix A, I.A.4 for more information regarding metals criteria).
(a)
(b)
EPA recommends that metals criteria be expressed as dissolved concentrations (see appendix A, I.A.4 for more information regarding metals criteria).
(a)
(b)
Alkalinity
Ammonia
Bacteria
Biochemical oxygen demand (BOD)
Chlorine
Color
Dissolved oxygen
Dissolved solids
pH
Phosphorus
Salinity
Temperature
Total and suspended solids
Turbidity
A. Pollutants that are bioaccumulative chemicals of concern (BCCs):
Chlordane
4,4′-DDD; p,p′-DDD; 4,4′-TDE; p,p′-TDE
4,4′-DDE; p,p′-DDE
4,4′-DDT; p,p′-DDT
Dieldrin
Hexachlorobenzene
Hexachlorobutadiene; hexachloro-1, 3-butadiene
Hexachlorocyclohexanes; BHCs
alpha-Hexachlorocyclohexane; alpha-BHC
beta-Hexachlorocyclohexane; beta-BHC
delta-Hexachlorocyclohexane; delta-BHC
Lindane; gamma-hexachlorocyclohexane; gamma-BHC
Mercury
Mirex
Octachlorostyrene
PCBs; polychlorinated biphenyls
Pentachlorobenzene
Photomirex
2,3,7,8-TCDD; dioxin
1,2,3,4-Tetrachlorobenzene
1,2,4,5-Tetrachlorobenzene Toxaphene
B. Pollutants that are not bioaccumulative chemicals of concern:
Acenaphthene
Acenaphthylene
Acrolein; 2-propenal
Acrylonitrile
Aldrin
Aluminum
Anthracene
Antimony
Arsenic
Asbestos
1,2-Benzanthracene; benz[a]anthracene
Benzene
Benzidine
Benzo[a]pyrene; 3,4-benzopyrene
3,4-Benzofluoranthene; benzo[b]fluoranthene
11,12-Benzofluoranthene; benzo[k]fluoranthene
1,12-Benzoperylene; benzo[ghi]perylene
Beryllium
Bis(2-chloroethoxy) methane
Bis(2-chloroethyl) ether
Bis(2-chloroisopropyl) ether
Bromoform; tribomomethane
4-Bromophenyl phenyl ether
Butyl benzyl phthalate
Cadmium
Carbon tetrachloride; tetrachloromethane
Chlorobenzene
p-Chloro-m-cresol; 4-chloro-3-methylphenol
Chlorodibromomethane
Chlorethane
2-Chloroethyl vinyl ether
Chloroform; trichloromethane
2-Chloronaphthalene
2-Chlorophenol
4-Chlorophenyl phenyl ether
Chlorpyrifos
Chromium
Chrysene
Copper
Cyanide
2,4-D; 2,4-Dichlorophenoxyacetic acid
DEHP; di(2-ethylhexyl) phthalate
Diazinon
1,2:5,6-Dibenzanthracene; dibenz[a,h]anthracene
Dibutyl phthalate; di-n-butyl phthalate
1,2-Dichlorobenzene
1,3-Dichlorobenzene
1,4-Dichlorobenzene
3,3′-Dichlorobenzidine
Dichlorobromomethane; bromodichloromethane
1,1-Dichloroethane
1,2-Dichloroethane
1,1-Dichloroethylene; vinylidene chloride
1,2-trans-Dichloroethylene
2,4-Dichlorophenol
1,2-Dichloropropane
1,3-Dichloropropene; 1,3-dichloropropylene
Diethyl phthalate
2,4-Dimethylphenol; 2,4-xylenol
Dimethyl phthalate
4,6-Dinitro-o-cresol; 2-methyl-4,6-dinitrophenol
2,4-Dinitrophenol
2,4-Dinitrotoluene
2,6-Dinitrotoluene
Dioctyl phthalate; di-n-octyl phthalate
1,2-Diphenylhydrazine
Endosulfan; thiodan
alpha-Endosulfan
beta-Endosulfan
Endosulfan sulfate
Endrin
Endrin aldehyde
Ethylbenzene
Fluoranthene
Fluorene; 9H-fluorene
Fluoride
Guthion
Heptachlor
Heptachlor epoxide
Hexachlorocyclopentadiene
Hexachloroethane
Indeno[1,2,3-cd]pyrene; 2,3-o-phenylene pyrene
Isophorone
Lead
Malathion
Methoxychlor
Methyl bromide; bromomethane
Methyl chloride; chloromethane
Methylene chloride; dichloromethane
Napthalene
Nickel
Nitrobenzene
2-Nitrophenol
4-Nitrophenol
N-Nitrosodimethylamine
N-Nitrosodiphenylamine
N-Nitrosodipropylamine; N-nitrosodi-n-propylamine
Parathion
Pentachlorophenol
Phenanthrene
Phenol
Iron
Pyrene
Selenium
Silver
1,1,2,2-Tetrachloroethane
Tetrachloroethylene
Thallium
Toluene; methylbenzene
1,2,4-Trichlorobenzene
1,1,1-Trichloroethane
1,1,2-Trichloroethane
Trichloroethylene; trichloroethene
2,4,6-Trichlorophenol
Vinyl chloride; chloroethylene; chloroethene
Zinc
Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) this appendix.
A.
1. Each separate chemical that does not ionize substantially in most natural bodies of water should usually be considered a separate material, except possibly for structurally similar organic compounds that only exist in large quantities as commercial mixtures of the various compounds and apparently have similar biological, chemical, physical, and toxicological properties.
2. For chemicals that ionize substantially in most natural bodies of water (e.g., some phenols and organic acids, some salts of phenols and organic acids, and most inorganic salts and coordination complexes of metals and metalloid), all forms that would be in chemical equilibrium should usually be considered one material. Each different oxidation state of a metal and each different non-ionizable covalently bonded organometallic compound should usually be considered a separate material.
3. The definition of the material of concern should include an operational analytical component. Identification of a material simply as “sodium,” for example, implies “total sodium,” but leaves room for doubt. If “total” is meant, it must be explicitly stated. Even “total” has different operational definitions, some of which do not necessarily measure “all that is there” in all samples. Thus, it is also necessary to reference or describe the analytical method that is intended. The selection of the operational analytical component should take into account the analytical and environmental chemistry of the material and various practical considerations, such as labor and equipment requirements, and whether the method would require measurement in the field or would allow measurement after samples are transported to a laboratory.
a. The primary requirements of the operational analytical component are that it be appropriate for use on samples of receiving water, that it be compatible with the available toxicity and bioaccumulation data without making extrapolations that are too hypothetical, and that it rarely result in underprotection or overprotection of aquatic organisms and their uses. Toxicity is the property of a material, or combination of materials, to adversely affect organisms.
b. Because an ideal analytical measurement will rarely be available, an appropriate compromise measurement will usually have to be used. This compromise measurement must fit with the general approach that if an ambient concentration is lower than the criterion, unacceptable effects will probably not occur, i.e., the compromise measure must not err on the side of underprotection when measurements are made on a surface water. What is an appropriate measurement in one situation might not be appropriate for another. For example, because the chemical and physical properties of an effluent are usually quite different from those of the receiving water, an analytical method that is appropriate for analyzing an effluent might not be appropriate for expressing a criterion, and vice versa. A criterion should be based on an appropriate analytical measurement, but the criterion is not rendered useless if an ideal measurement either is not available or is not feasible.
The analytical chemistry of the material might have to be taken into account when defining the material or when judging the acceptability of some toxicity tests, but a criterion must not be based on the sensitivity of an analytical method. When aquatic organisms are more sensitive than routine analytical methods, the proper solution is to develop better analytical methods.
4. It is now the policy of EPA that the use of dissolved metal to set and measure compliance with water quality standards is the recommended approach, because dissolved metal more closely approximates the bioavailable fraction of metal in the water column that does total recoverable metal. One reason is that a primary mechanism for water column toxicity is adsorption at the gill surface which requires metals to be in
B.
C.
A. Collect all data available on the material concerning toxicity to aquatic animals and plants.
B. All data that are used should be available in typed, dated, and signed hard copy (e.g., publication, manuscript, letter, memorandum, etc.) with enough supporting information to indicate that acceptable test procedures were used and that the results are reliable. In some cases, it might be appropriate to obtain written information from the investigator, if possible. Information that is not available for distribution shall not be used.
C. Questionable data, whether published or unpublished, must not be used. For example, data must be rejected if they are from tests that did not contain a control treatment, tests in which too many organisms in the control treatment died or showed signs of stress or disease, and tests in which distilled or deionized water was used as the dilution water without the addition of appropriate salts.
D. Data on technical grade materials may be used if appropriate, but data on formulated mixtures and emulsifiable concentrates of the material must not be used.
E. For some highly volatile, hydrolyzable, or degradable materials, it might be appropriate to use only results of flow-through tests in which the concentrations of test material in test solutions were measured using acceptable analytical methods. A flow-through test is a test with aquatic organisms in which test solutions flow into constant-volume test chambers either intermittently (e.g., every few minutes) or continuously, with the excess flowing out.
F. Data must be rejected if obtained using:
1. Brine shrimp, because they usually only occur naturally in water with salinity greater than 35 g/kg.
2. Species that do not have reproducing wild populations in North America.
3. Organisms that were previously exposed to substantial concentrations of the test material or other contaminants.
4. Saltwater species except for use in deriving acute-chronic ratios. An ACR is a standard measure of the acute toxicity of a material divided by an appropriate measure of the chronic toxicity of the same material under comparable conditions.
G. Questionable data, data on formulated mixtures and emulsifiable concentrates, and data obtained with species non-resident to North America or previously exposed organisms may be used to provide auxiliary information but must not be used in the derivation of criteria.
A. Certain data should be available to help ensure that each of the major kinds of possible adverse effects receives adequate consideration. An adverse effect is a change in an organism that is harmful to the organism. Exposure means contact with a chemical or physical agent. Results of acute and chronic toxicity tests with representative species of aquatic animals are necessary so that data available for tested species can be considered a useful indication of the sensitivities of appropriate untested species. Fewer data concerning toxicity to aquatic plants are usually available because procedures for conducting tests with plants and interpreting the results of such tests are not as well developed.
B. To derive a Great Lakes Tier I criterion for aquatic organisms and their uses, the following must be available:
1. Results of acceptable acute (or chronic) tests (see section IV or VI of this appendix) with at least one species of freshwater animal in at least eight different families such that all of the following are included:
a. The family Salmonidae in the class Osteichthyes;
b. One other family (preferably a commercially or recreationally important,
c. A third family in the phylum Chordata (e.g., fish, amphibian);
d. A planktonic crustacean (e.g., a cladoceran, copepod);
e. A benthic crustacean (e.g., ostracod, isopod, amphipod, crayfish);
f. An insect (e.g., mayfly, dragonfly, damselfly, stonefly, caddisfly, mosquito, midge);
g. A family in a phylum other than Arthropoda or Chordata (e.g., Rotifera, Annelida, Mollusca);
h. A family in any order of insect or any phylum not already represented.
2. Acute-chronic ratios (see section VI of this appendix) with at least one species of aquatic animal in at least three different families provided that of the three species:
a. At least one is a fish;
b. At least one is an invertebrate; and
c. At least one species is an acutely sensitive freshwater species (the other two may be saltwater species).
3. Results of at least one acceptable test with a freshwater algae or vascular plant is desirable but not required for criterion derivation (see section VIII of this appendix). If plants are among the aquatic organisms most sensitive to the material, results of a test with a plant in another phylum (division) should also be available.
C. If all required data are available, a numerical criterion can usually be derived except in special cases. For example, derivation of a chronic criterion might not be possible if the available ACRs vary by more than a factor of ten with no apparent pattern. Also, if a criterion is to be related to a water quality characteristic (see sections V and VII of this appendix), more data will be required.
D. Confidence in a criterion usually increases as the amount of available pertinent information increases. Thus, additional data are usually desirable.
A. Appropriate measures of the acute (short-term) toxicity of the material to a variety of species of aquatic animals are used to calculate the Final Acute Value (FAV). The calculated Final Acute Value is a calculated estimate of the concentration of a test material such that 95 percent of the genera (with which acceptable acute toxicity tests have been conducted on the material) have higher Genus Mean Acute Values (GMAVs). An acute test is a comparative study in which organisms, that are subjected to different treatments, are observed for a short period usually not constituting a substantial portion of their life span. However, in some cases, the Species Mean Acute Value (SMAV) of a commercially or recreationally important species of the Great Lakes System is lower than the calculated FAV, then the SMAV replaces the calculated FAV in order to provide protection for that important species.
B. Acute toxicity tests shall be conducted using acceptable procedures. For good examples of acceptable procedures see American Society for Testing and Materials (ASTM) Standard E 729, Guide for Conducting Acute Toxicity Tests with Fishes, Macroinvertebrates, and Amphibians.
C. Except for results with saltwater annelids and mysids, results of acute tests during which the test organisms were fed should not be used, unless data indicate that the food did not affect the toxicity of the test material. (
D. Results of acute tests conducted in unusual dilution water, e.g., dilution water in which total organic carbon or particulate matter exceeded five mg/L, should not be used, unless a relationship is developed between acute toxicity and organic carbon or particulate matter, or unless data show that organic carbon or particulate matter, etc., do not affect toxicity.
E. Acute values must be based upon endpoints which reflect the total severe adverse impact of the test material on the organisms used in the test. Therefore, only the following kinds of data on acute toxicity to aquatic animals shall be used:
1. Tests with daphnids and other cladocerans must be started with organisms less than 24 hours old and tests with midges must be started with second or third instar larvae. It is preferred that the results should be the 48-hour EC50 based on the total percentage of organisms killed and immobilized. If such an EC50 is not available for a test, the 48-hour LC50 should be used in place of the desired 48-hour EC50. An EC50 or LC50 of longer than 48 hours can be used as long as the animals were not fed and the control animals were acceptable at the end of the test. An EC50 is a statistically or graphically estimated concentration that is expected to cause one or more specified effects in 50% of a group of organisms under specified conditions. An LC50 is a statistically or graphically estimated concentration that is expected to be lethal to 50% of a group of organisms under specified conditions.
2. It is preferred that the results of a test with embryos and larvae of barnacles, bivalve molluscs (clams, mussels, oysters and scallops), sea urchins, lobsters, crabs, shrimp and abalones be the 96-hour EC50 based on the percentage of organisms with incompletely developed shells plus the percentage of organisms killed. If such an EC50 is not available from a test, of the values that are
3. It is preferred that the result of tests with all other aquatic animal species and older life stages of barnacles, bivalve molluscs (clams, mussels, oysters and scallops), sea urchins, lobsters, crabs, shrimp and abalones be the 96-hour EC50 based on percentage of organisms exhibiting loss of equilibrium plus percentage of organisms immobilized plus percentage of organisms killed. If such an EC50 is not available from a test, of the values that are available from a test the lower of the following should be used in place of the desired 96-hour EC50: the 96-hour EC50 based on percentage of organisms exhibiting loss of equilibrium plus percentage of organisms immobilized and the 96-hour LC50.
4. Tests whose results take into account the number of young produced, such as most tests with protozoans, are not considered acute tests, even if the duration was 96 hours or less.
5. If the tests were conducted properly, acute values reported as “greater than” values and those which are above the solubility of the test material should be used, because rejection of such acute values would bias the Final Acute Value by eliminating acute values for resistant species.
F. If the acute toxicity of the material to aquatic animals has been shown to be related to a water quality characteristic such as hardness or particulate matter for freshwater animals, refer to section V of this appendix.
G. The agreement of the data within and between species must be considered. Acute values that appear to be questionable in comparison with other acute and chronic data for the same species and for other species in the same genus must not be used. For example, if the acute values available for a species or genus differ by more than a factor of 10, rejection of some or all of the values would be appropriate, absent countervailing circumstances.
H. If the available data indicate that one or more life stages are at least a factor of two more resistant than one or more other life stages of the same species, the data for the more resistant life stages must not be used in the calculation of the SMAV because a species cannot be considered protected from acute toxicity if all of the life stages are not protected.
I. For each species for which at least one acute value is available, the SMAV shall be calculated as the geometric mean of the results of all acceptable flow-through acute toxicity tests in which the concentrations of test material were measured with the most sensitive tested life stage of the species. For a species for which no such result is available, the SMAV shall be calculated as the geometric mean of all acceptable acute toxicity tests with the most sensitive tested life stage, i.e., results of flow-through tests in which the concentrations were not measured and results of static and renewal tests based on initial concentrations (nominal concentrations are acceptable for most test materials if measured concentrations are not available) of test material. A renewal test is a test with aquatic organisms in which either the test solution in a test chamber is removed and replaced at least once during the test or the test organisms are transferred into a new test solution of the same composition at least once during the test. A static test is a test with aquatic organisms in which the solution and organisms that are in a test chamber at the beginning of the test remain in the chamber until the end of the test, except for removal of dead test organisms.
Data reported by original investigators must not be rounded off. Results of all intermediate calculations must not be rounded off to fewer than four significant digits.
The geometric mean of N numbers is the Nth root of the product of the N numbers. Alternatively, the geometric mean can be calculated by adding the logarithms of the N numbers, dividing the sum by N, and taking the antilog of the quotient. The geometric mean of two numbers is the square root of the product of the two numbers, and the geometric mean of one number is that number. Either natural (base e) or common (base 10) logarithms can be used to calculate geometric means as long as they are used consistently within each set of data, i.e., the antilog used must match the logarithms used.
Geometric means, rather than arithmetic means, are used here because the distributions of sensitivities of individual organisms in toxicity tests on most materials and the distributions of sensitivities of species within a genus are more likely to be lognormal than normal. Similarly, geometric means are used for ACRs because quotients are likely to be closer to lognormal than normal distributions. In addition, division of the geometric mean of a set of numerators by the geometric mean of the set of denominators will result in the
J. For each genus for which one or more SMAVs are available, the GMAV shall be calculated as the geometric mean of the SMAVs available for the genus.
K. Order the GMAVs from high to low.
L. Assign ranks, R, to the GMAVs from “1” for the lowest to “N” for the highest. If two or more GMAVs are identical, assign them successive ranks.
M. Calculate the cumulative probability, P, for each GMAV as R/(N+1).
N. Select the four GMAVs which have cumulative probabilities closest to 0.05 (if there are fewer than 59 GMAVs, these will always be the four lowest GMAVs).
O. Using the four selected GMAVs, and Ps, calculate
Natural logarithms (logarithms to base e, denoted as ln) are used herein merely because they are easier to use on some hand calculators and computers than common (base 10) logarithms. Consistent use of either will produce the same result.
P. If for a commercially or recreationally important species of the Great Lakes System the geometric mean of the acute values from flow-through tests in which the concentrations of test material were measured is lower than the calculated Final Acute Value (FAV), then that geometric mean must be used as the FAV instead of the calculated FAV.
Q. See section VI of this appendix.
A. When enough data are available to show that acute toxicity to two or more species is similarly related to a water quality characteristic, the relationship shall be taken into account as described in sections V.B through V.G of this appendix or using analysis of covariance. The two methods are equivalent and produce identical results. The manual method described below provides an understanding of this application of covariance analysis, but computerized versions of covariance analysis are much more convenient for analyzing large data sets. If two or more factors affect toxicity, multiple regression analysis shall be used.
B. For each species for which comparable acute toxicity values are available at two or more different values of the water quality characteristic, perform a least squares regression of the acute toxicity values on the corresponding values of the water quality characteristic to obtain the slope and its 95 percent confidence limits for each species.
Because the best documented relationship is that between hardness and acute toxicity of metals in fresh water and a log-log relationship fits these data, geometric means and natural logarithms of both toxicity and water quality are used in the rest of this section. For relationships based on other water quality characteristics, such as Ph, temperature, no transformation or a different transformation might fit the data better, and appropriate changes will be necessary throughout this section.
C. Decide whether the data for each species are relevant, taking into account the range and number of the tested values of the water quality characteristic and the degree of agreement within and between species. For example, a slope based on six data points might be of limited value if it is based only
D. For each species, calculate the geometric mean of the available acute values and then divide each of the acute values for the species by the geometric mean for the species. This normalizes the acute values so that the geometric mean of the normalized values for each species individually and for any combination of species is 1.0.
E. Similarly normalize the values of the water quality characteristic for each species individually using the same procedure as above.
F. Individually for each species perform a least squares regression of the normalized acute values of the water quality characteristic. The resulting slopes and 95 percent confidence limits will be identical to those obtained in section V.B. of this appendix. If, however, the data are actually plotted, the line of best fit for each individual species will go through the point 1,1 in the center of the graph.
G. Treat all of the normalized data as if they were all for the same species and perform a least squares regression of all of the normalized acute values on the corresponding normalized values of the water quality characteristic to obtain the pooled acute slope, V, and its 95 percent confidence limits. If all of the normalized data are actually plotted, the line of best fit will go through the point 1,1 in the center of the graph.
H. For each species calculate the geometric mean, W, of the acute toxicity values and the geometric mean, X, of the values of the water quality characteristic. (These were calculated in sections V.D and V.E of this appendix).
I. For each species, calculate the logarithm, Y, of the SMAV at a selected value, Z, of the water quality characteristic using the equation:
J. For each species calculate the SMAV at X using the equation:
Alternatively, the SMAVs at Z can be obtained by skipping step H above, using the equations in steps I and J to adjust each acute value individually to Z, and then calculating the geometric mean of the adjusted values for each species individually. This alternative procedure allows an examination of the range of the adjusted acute values for each species.
K. Obtain the FAV at Z by using the procedure described in sections IV.J through IV.O of this appendix.
L. If, for a commercially or recreationally important species of the Great Lakes System the geometric mean of the acute values at Z from flow-through tests in which the concentrations of the test material were measured is lower than the FAV at Z, then the geometric mean must be used as the FAV instead of the FAV.
M. The Final Acute Equation is written as:
where:
Because V, A, and Z are known, the FAV can be calculated for any selected value of the water quality characteristic.
A. Depending on the data that are available concerning chronic toxicity to aquatic animals, the Final Chronic Value (FCV) can be calculated in the same manner as the FAV or by dividing the FAV by the Final Acute-Chronic Ratio (FACR). In some cases, it might not be possible to calculate a FCV. The FCV is (a) a calculated estimate of the concentration of a test material such that 95 percent of the genera (with which acceptable chronic toxicity tests have been conducted on the material) have higher GMCVs, or (b) the quotient of an FAV divided by an appropriate ACR, or (c) the SMCV of an important and/or critical species, if the SMCV is lower than the calculated estimate or the quotient, whichever is applicable.
As the name implies, the ACR is a way of relating acute and chronic toxicities.
B. Chronic values shall be based on results of flow-through (except renewal is acceptable for daphnids) chronic tests in which the concentrations of test material in the test solutions were properly measured at appropriate times during the test. A chronic test is a comparative study in which organisms, that are subjected to different treatments, are observed for a long period or a substantial portion of their life span.
C. Results of chronic tests in which survival, growth, or reproduction in the control treatment was unacceptably low shall not be used. The limits of acceptability will depend on the species.
D. Results of chronic tests conducted in unusual dilution water, e.g., dilution water in which total organic carbon or particulate matter exceeded five mg/L, should not be used, unless a relationship is developed between chronic toxicity and organic carbon or particulate matter, or unless data show that organic carbon, particulate matter, etc., do not affect toxicity.
E. Chronic values must be based on endpoints and lengths of exposure appropriate to the species. Therefore, only results of the following kinds of chronic toxicity tests shall be used:
1. Life-cycle toxicity tests consisting of exposures of each of two or more groups of individuals of a species to a different concentration of the test material throughout a life cycle. To ensure that all life stages and life processes are exposed, tests with fish should begin with embryos or newly hatched young less than 48 hours old, continue through maturation and reproduction, and should end not less than 24 days (90 days for salmonids) after the hatching of the next generation. Tests with daphnids should begin with young less than 24 hours old and last for not less than 21 days, and for ceriodaphnids not less than seven days. For good examples of acceptable procedures see American Society for Testing and Materials (ASTM) Standard E 1193 Guide for conducting renewal life-cycle toxicity tests with
2. Partial life-cycle toxicity tests consist of exposures of each of two more groups of individuals of a species of fish to a different concentration of the test material through most portions of a life cycle. Partial life-cycle tests are allowed with fish species that require more than a year to reach sexual maturity, so that all major life stages can be exposed to the test material in less than 15 months. A life-cycle test is a comparative study in which organisms, that are subjected to different treatments, are observed at least from a life stage in one generation to the same life-stage in the next generation. Exposure to the test material should begin with immature juveniles at least two months prior to active gonad development, continue through maturation and reproduction, and end not less than 24 days (90 days for salmonids) after the hatching of the next generation. Data should be obtained and analyzed on survival and growth of adults and young, maturation of males and females, eggs spawned per female, embryo viability (salmonids only), and hatchability.
3. Early life-stage toxicity tests consisting of 28- to 32-day (60 days post hatch for salmonids) exposures of the early life stages of a species of fish from shortly after fertilization through embryonic, larval, and early juvenile development. Data should be obtained and analyzed on survival and growth.
Results of an early life-stage test are used as predictions of results of life-cycle and partial life-cycle tests with the same species. Therefore, when results of a life-cycle or partial life-cycle test are available, results of an early life-stage test with the same species should not be used. Also, results of early life-stage tests in which the incidence of mortalities or abnormalities increased substantially near the end of the test shall not be used because the results of such tests are possibly not good predictions of comparable life-cycle or partial life-cycle tests.
F. A chronic value may be obtained by calculating the geometric mean of the lower and upper chronic limits from a chronic test or by analyzing chronic data using regression analysis.
1. A lower chronic limit is the highest tested concentration:
a. In an acceptable chronic test;
b. Which did not cause an unacceptable amount of adverse effect on any of the specified biological measurements; and
c. Below which no tested concentration caused an unacceptable effect.
2. An upper chronic limit is the lowest tested concentration:
a. In an acceptable chronic test;
b. Which did cause an unacceptable amount of adverse effect on one or more of the specified biological measurements; and,
c. Above which all tested concentrations also caused such an effect.
Because various authors have used a variety of terms and definitions to interpret and report results of chronic tests, reported results should be reviewed carefully. The amount of effect that is considered unacceptable is often based on a statistical hypothesis test, but might also be defined in terms of a specified percent reduction from the controls. A small percent reduction (e.g., three percent) might be considered acceptable even if it is statistically significantly different from the control, whereas a large percent reduction (e.g., 30 percent) might be considered unacceptable even if it is not statistically significant.
G. If the chronic toxicity of the material to aquatic animals has been shown to be related to a water quality characteristic such as hardness or particulate matter for freshwater animals, refer to section VII of this appendix.
H. If chronic values are available for species in eight families as described in section III.B.1 of this appendix, a SMCV shall be calculated for each species for which at least one chronic value is available by calculating the geometric mean of the results of all acceptable life-cycle and partial life-cycle toxicity tests with the species; for a species of fish for which no such result is available, the SMCV is the geometric mean of all acceptable early life-stage tests. Appropriate GMCVs shall also be calculated. A GMCV is the geometric mean of the SMCVs for the genus. The FCV shall be obtained using the procedure described in sections IV.J through IV.O of this appendix, substituting SMCV and GMCV for SMAV and GMAV respectively. See section VI.M of this appendix.
Section VI.I through VI.L are for use when chronic values are not available for species in eight taxonomic families as described in section III.B.1 of this appendix.
I. For each chronic value for which at least one corresponding appropriate acute value is available, calculate an ACR, using for the numerator the geometric mean of the results of all acceptable flow-through (except static is acceptable for daphnids and midges) acute tests in the same dilution water in which the concentrations are measured. For fish, the acute test(s) should be conducted with juveniles. The acute test(s) should be part of the same study as the chronic test. If acute tests were not conducted as part of the same study, but were conducted as part of a different study in the same laboratory and dilution water, then they may be used. If no such acute tests are available, results of acute tests conducted in the same dilution water in a different laboratory may be used. If no such acute tests are available, an ACR shall not be calculated.
J. For each species, calculate the SMACR as the geometric mean of all ACRs available for that species. If the minimum ACR data requirements (as described in section III.B.2 of this appendix) are not met with freshwater data alone, saltwater data may be used along with the freshwater data.
K. For some materials, the ACR seems to be the same for all species, but for other materials the ratio seems to increase or decrease as the SMAV increases. Thus the FACR can be obtained in three ways, depending on the data available:
1. If the species mean ACR seems to increase or decrease as the SMAVs increase, the FACR shall be calculated as the geometric mean of the ACRs for species whose SMAVs are close to the FAV.
2. If no major trend is apparent and the ACRs for all species are within a factor of ten, the FACR shall be calculated as the geometric mean of all of the SMACRs.
3. If the most appropriate SMACRs are less than 2.0, and especially if they are less than 1.0, acclimation has probably occurred during the chronic test. In this situation, because continuous exposure and acclimation cannot be assured to provide adequate protection in field situations, the FACR should be assumed to be two, so that the FCV is equal to the Criterion Maximum Concentration (CMC). (See section X.B of this appendix.)
If the available SMACRs do not fit one of these cases, a FACR may not be obtained and a Tier I FCV probably cannot be calculated.
L. Calculate the FCV by dividing the FAV by the FACR.
FCV=FAV÷FACR
M. If the SMCV of a commercially or recreationally important species of the Great Lakes System is lower than the calculated FCV, then that SMCV must be used as the FCV instead of the calculated FCV.
N. See section VIII of this appendix.
A. A Final Chronic Equation can be derived in two ways. The procedure described in section VII.A of this appendix will result in the chronic slope being the same as the acute slope. The procedure described in sections VII.B through N of this appendix will usually result in the chronic slope being different from the acute slope.
1. If ACRs are available for enough species at enough values of the water quality characteristic to indicate that the ACR appears to be the same for all species and appears to be independent of the water quality characteristic, calculate the FACR as the geometric mean of the available SMACRs.
2. Calculate the FCV at the selected value Z of the water quality characteristic by dividing the FAV at Z (see section V.M of this appendix) by the FACR.
3. Use V=pooled acute slope (see section V.M of this appendix), and
L=pooled chronic slope.
4. See section VII.M of this appendix.
B. When enough data are available to show that chronic toxicity to at least one species is related to a water quality characteristic, the relationship should be taken into account as described in sections C through G below or using analysis of covariance. The two methods are equivalent and produce identical results. The manual method described below provides an understanding of this application of covariance analysis, but computerized versions of covariance analysis are much more convenient for analyzing large data sets. If two or more factors affect toxicity, multiple regression analysis shall be used.
C. For each species for which comparable chronic toxicity values are available at two or more different values of the water quality characteristic, perform a least squares regression of the chronic toxicity values on the corresponding values of the water quality characteristic to obtain the slope and its 95 percent confidence limits for each species.
Because the best documented relationship is that between hardness and acute toxicity of metals in fresh water and a log-log relationship fits these data, geometric means and natural logarithms of both toxicity and water quality are used in the rest of this section. For relationships based on other water quality characteristics, such as Ph, temperature, no transformation or a different transformation might fit the data better, and appropriate changes will be necessary throughout this section. It is probably preferable, but not necessary, to use the same transformation that was used with the acute values in section V of this appendix.
D. Decide whether the data for each species are relevant, taking into account the range and number of the tested values of the water quality characteristic and the degree of agreement within and between species. For example, a slope based on six data points might be of limited value if it is based only on data for a very narrow range of values of the water quality characteristic. A slope based on only two data points, however, might be more useful if it is consistent with other information and if the two points cover a broad range of the water quality characteristic. In addition, chronic values that appear to be questionable in comparison with other acute and chronic data available for the same species and for other species in the same genus in most cases should not be used. For example, if after adjustment for the water quality characteristic, the chronic values available for a species or genus differ by more than a factor of 10, rejection of some or all of the values is, in most cases, absent countervailing circumstances, appropriate. If a useful chronic slope is not available for at least one species or if the available slopes are too dissimilar or if too few data are available to adequately define the relationship between chronic toxicity and the water quality characteristic, it might be appropriate to assume that the chronic slope is the same as the acute slope, which is equivalent to assuming that the ACR is independent of the water quality characteristic. Alternatively, return to section VI.H of this appendix, using the results of tests conducted under conditions and in waters similar to those commonly used for toxicity tests with the species.
E. Individually for each species, calculate the geometric mean of the available chronic values and then divide each chronic value for a species by the mean for the species. This normalizes the chronic values so that the geometric mean of the normalized values for each species individually, and for any combination of species, is 1.0.
F. Similarly, normalize the values of the water quality characteristic for each species individually.
G. Individually for each species, perform a least squares regression of the normalized chronic toxicity values on the corresponding normalized values of the water quality characteristic. The resulting slopes and the 95 percent confidence limits will be identical to those obtained in section VII.B of this appendix. Now, however, if the data are actually plotted, the line of best fit for each individual species will go through the point 1,1 in the center of the graph.
H. Treat all of the normalized data as if they were all the same species and perform a least squares regression of all of the normalized chronic values on the corresponding normalized values of the water quality characteristic to obtain the pooled chronic slope, L, and its 95 percent confidence limits.
If all normalized data are actually plotted, the line of best fit will go through the point 1,1 in the center of the graph.
I. For each species, calculate the geometric mean, M, of the toxicity values and the geometric mean, P, of the values of the water quality characteristic. (These are calculated in sections VII.E and F of this appendix.)
J. For each species, calculate the logarithm, Q, of the SMCV at a selected value, Z, of the water quality characteristic using the equation:
Although it is not necessary, it is recommended that the same value of the water quality characteristic be used here as was used in section V of this appendix.
K. For each species, calculate a SMCV at Z using the equation:
Alternatively, the SMCV at Z can be obtained by skipping section VII.J of this appendix, using the equations in sections VII.J and K of this appendix to adjust each chronic value individually to Z, and then calculating the geometric means of the adjusted values for each species individually. This alternative procedure allows an examination of the range of the adjusted chronic values for each species.
L. Obtain the FCV at Z by using the procedure described in sections IV.J through O of this appendix.
M. If the SMCV at Z of a commercially or recreationally important species of the Great Lakes System is lower than the calculated FCV at Z, then that SMCV shall be used as the FCV at Z instead of the calculated FCV.
N. The Final Chronic Equation is written as:
Because L, S, and Z are known, the FCV can be calculated for any selected value of the water quality characteristic.
A. A Final Plant Value (FPV) is the lowest plant value that was obtained with an important aquatic plant species in an acceptable toxicity test for which the concentrations of the test material were measured and the adverse effect was biologically important. Appropriate measures of the toxicity of the material to aquatic plants are used to compare the relative sensitivities of aquatic plants and animals. Although procedures for conducting and interpreting the results of toxicity tests with plants are not well-developed, results of tests with plants usually indicate that criteria which adequately protect aquatic animals and their uses will, in most cases, also protect aquatic plants and their uses.
B. A plant value is the result of a 96-hour test conducted with an alga or a chronic test conducted with an aquatic vascular plant.
A test of the toxicity of a metal to a plant shall not be used if the medium contained an excessive amount of a complexing agent, such as EDTA, that might affect the toxicity of the metal. Concentrations of EDTA above 200 µg/L should be considered excessive.
C. The FPV shall be obtained by selecting the lowest result from a test with an important aquatic plant species in which the concentrations of test material are measured and the endpoint is biologically important.
Pertinent information that could not be used in earlier sections might be available concerning adverse effects on aquatic organisms. The most important of these are data on cumulative and delayed toxicity, reduction in survival, growth, or reproduction, or any other adverse effect that has been shown to be biologically important. Delayed toxicity is an adverse effect to an organism that results from, and occurs after the end of, its exposure to one or more test materials. Especially important are data for species for which no other data are available. Data from behavioral, biochemical, physiological, microcosm, and field studies might also be available. Data might be available from tests conducted in unusual dilution water (see sections IV.D and VI.D of this appendix), from chronic tests in which the concentrations were not measured (see section VI.B of this appendix), from tests with previously exposed organisms (see section II.F.3 of this appendix), and from tests on formulated mixtures or emulsifiable concentrates (see section II.D of this appendix). Such data might affect a criterion if the data were obtained with an important species, the test concentrations were measured, and the endpoint was biologically important.
A. A criterion consists of two concentrations: the CMC and the Criterion Continuous Concentration (CCC).
B. The CMC is equal to one-half the FAV. The CMC is an estimate of the highest concentration of a material in the water column to which an aquatic community can be exposed briefly without resulting in an unacceptable effect.
C. The CCC is equal to the lowest of the FCV or the FPV (if available) unless other data (see section IX of this appendix) show that a lower value should be used. The CCC is an estimate of the highest concentration of a material in the water column to which an aquatic community can be exposed indefinitely without resulting in an unacceptable effect. If toxicity is related to a water quality characteristic, the CCC is obtained from the Final Chronic Equation or FPV (if available) that results in the lowest concentrations in the usual range of the water quality characteristic, unless other data (see section IX) show that a lower value should be used.
D. Round both the CMC and the CCC to two significant digits.
E. The criterion is stated as:
The procedures described in the Tier I methodology indicate that, except possibly where a commercially or recreationally important species is very sensitive, aquatic organisms should not be affected unacceptably if the four-day average concentration of (1) does not exceed (2) µg/L more than once
If the CMC averaging period of one hour or the CCC averaging period of four days is inappropriate for the pollutant, or if the once-in-three-year allowable excursion frequency is inappropriate for the pollutant or for the sites to which a criterion is applied, then the State may specify alternative averaging periods or frequencies. The choice of an alternative averaging period or frequency shall be justified by a scientifically defensible analysis demonstrating that the alternative values will protect the aquatic life uses of the water. Appropriate laboratory data and/or well-designed field biological surveys shall be submitted to EPA as justification for differing averaging periods and/or frequencies of exceedance.
A. The derivation of the criterion should be carefully reviewed by rechecking each step of the Guidance in this part. Items that should be especially checked are:
1. If unpublished data are used, are they well documented?
2. Are all required data available?
3. Is the range of acute values for any species greater than a factor of 10?
4. Is the range of SMAVs for any genus greater than a factor of 10?
5. Is there more than a factor of 10 difference between the four lowest GMAVs?
6. Are any of the lowest GMAVs questionable?
7. Is the FAV reasonable in comparison with the SMAVs and GMAVs?
8. For any commercially or recreationally important species of the Great Lakes System, is the geometric mean of the acute values from flow-through tests in which the concentrations of test material were measured lower than the FAV?
9. Are any of the chronic values used questionable?
10. Are any chronic values available for acutely sensitive species?
11. Is the range of acute-chronic ratios greater than a factor of 10?
12. Is the FCV reasonable in comparison with the available acute and chronic data?
13. Is the measured or predicted chronic value for any commercially or recreationally important species of the Great Lakes System below the FCV?
14. Are any of the other data important?
15. Do any data look like they might be outliers?
16. Are there any deviations from the Guidance in this part? Are they acceptable?
B. On the basis of all available pertinent laboratory and field information, determine if the criterion is consistent with sound scientific evidence. If it is not, another criterion, either higher or lower, shall be derived consistent with the Guidance in this part.
If all eight minimum data requirements for calculating an FAV using Tier I are not met, a Secondary Acute Value (SAV) for the waters of the Great Lakes System shall be calculated for a chemical as follows:
To calculate a SAV, the lowest GMAV in the database is divided by the Secondary Acute Factor (SAF) (Table A-1 of this appendix) corresponding to the number of satisfied minimum data requirements listed in the Tier I methodology (section III.B.1 of this appendix). (Requirements for definitions, data collection and data review, contained in sections I, II, and IV shall be applied to calculation of a SAV.) If all eight minimum data requirements are satisfied, a Tier I criterion calculation may be possible. In order to calculate a SAV, the database must contain, at a minimum, a genus mean acute value (GMAV) for one of the following three genera in the family Daphnidae—
If appropriate, the SAV shall be made a function of a water quality characteristic in a manner similar to that described in Tier I.
If three or more experimentally determined ACRs, meeting the data collection and review requirements of Section VI of this appendix, are available for the chemical, determine the FACR using the procedure described in Section VI. If fewer than three acceptable experimentally determined ACRs are available, use enough assumed ACRs of 18 so that the total number of ACRs equals three. Calculate the Secondary Acute-Chronic Ratio (SACR) as the geometric mean of the three ACRs. Thus, if no experimentally determined ACRs are available, the SACR is 18.
Calculate the Secondary Chronic Value (SCV) using one of the following:
If appropriate, the SCV will be made a function of a water quality characteristic in a manner similar to that described in Tier I.
If for a commercially or recreationally important species of the Great Lakes System the geometric mean of the acute values or chronic values from flow-through tests in which the concentrations of the test materials were measured is lower than the calculated SAV or SCV, then that geometric mean must be used as the SAV or SCV instead of the calculated SAV or SCV.
A. A Tier II value shall consist of two concentrations: the Secondary Maximum Concentration (SMC) and the Secondary Continuous Concentration (SCC).
B. The SMC is equal to one-half of the SAV.
C. The SCC is equal to the lowest of the SCV or the Final Plant Value, if available, unless other data (see section IX of this appendix) show that a lower value should be used.
If toxicity is related to a water quality characteristic, the SCC is obtained from the Secondary Chronic Equation or FPV, if available, that results in the lowest concentrations in the usual range of the water quality characteristic, unless other data (See section IX of this appendix) show that a lower value should be used.
D. Round both the SMC and the SCC to two significant digits.
E. The Tier II value is stated as:
The procedures described in the Tier II methodology indicate that, except possibly where a locally important species is very sensitive, aquatic organisms should not be affected unacceptably if the four-day average concentration of (1) does not exceed (2) µg/L more than once every three years on the average and if the one-hour average concentration does not exceed (3) µg/L more than once every three years on the average.
As discussed above, States and Tribes have the discretion to specify alternative averaging periods or frequencies (see section X.E. of this appendix).
On the basis of all available pertinent laboratory and field information, determine if the Tier II value is consistent with sound scientific evidence. If it is not, another value, either higher or lower, shall be derived consistent with the Guidance in this part.
Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) this appendix.
A. The purpose of this methodology is to describe procedures for deriving bioaccumulation factors (BAFs) to be used in the calculation of Great Lakes Water Quality Guidance (Guidance) human health Tier I criteria and Tier II values and wildlife Tier I criteria. A subset of the human health BAFs are also used to identify the chemicals that are considered bioaccumulative chemicals of concern (BCCs).
B. Bioaccumulation reflects uptake of a substance by aquatic organisms exposed to the substance through all routes (i.e., ambient water and food), as would occur in nature. Bioconcentration reflects uptake of a substance by aquatic organisms exposed to the substance only through the ambient water. Both BAFs and bioconcentration factors (BCFs) are proportionality constants that describe the relationship between the concentration of a substance in aquatic organisms and its concentration in the ambient water. For the Guidance in this part, BAFs, rather than BCFs, are used to calculate Tier I criteria for human health and wildlife and Tier II values for human health because they
C. For organic chemicals, baseline BAFs can be derived using four methods. Measured baseline BAFs are derived from field-measured BAFs; predicted baseline BAFs are derived using biota-sediment accumulation factors (BSAFs) or are derived by multiplying a laboratory-measured or predicted BCF by a food-chain multiplier (FCM). The lipid content of the aquatic organisms is used to account for partitioning of organic chemicals within organisms so that data from different tissues and species can be integrated. In addition, the baseline BAF is based on the concentration of freely dissolved organic chemicals in the ambient water to facilitate extrapolation from one water to another.
D. For inorganic chemicals, baseline BAFs can be derived using two of the four methods. Baseline BAFs are derived using either field-measured BAFs or by multiplying laboratory-measured BCFs by a FCM. For inorganic chemicals, BAFs are assumed to equal BCFs (i.e., the FCM is 1.0), unless chemical-specific biomagnification data support using a FCM other than 1.0.
E. Because both humans and wildlife consume fish from both trophic levels 3 and 4, two baseline BAFs are needed to calculate either a human health criterion or value or a wildlife criterion for a chemical. When appropriate, ingestion through consumption of invertebrates, plants, mammals, and birds in the diet of wildlife species to be protected may be taken into account.
A.
1. EPA Ambient Water Quality Criteria documents issued after January 1, 1980.
2. Published scientific literature.
3. Reports issued by EPA or other reliable sources.
4. Unpublished data.
One useful source of references is the Aquatic Toxicity Information Retrieval (AQUIRE) database.
B.
1. The field studies used shall be limited to those conducted in the Great Lakes System with fish at or near the top of the aquatic food chain (i.e., in trophic levels 3 and/or 4).
2. The trophic level of the fish species shall be determined.
3. The site of the field study should not be so unique that the BAF cannot be extrapolated to other locations where the criteria and values will apply.
4. For organic chemicals, the percent lipid shall be either measured or reliably estimated for the tissue used in the determination of the BAF.
5. The concentration of the chemical in the water shall be measured in a way that can be related to particulate organic carbon (POC) and/or dissolved organic carbon (DOC) and should be relatively constant during the steady-state time period.
6. For organic chemicals with log K
7. For inorganic and organic chemicals, BAFs shall be used only if they are expressed on a wet weight basis; BAFs reported on a dry weight basis cannot be converted to wet weight unless a conversion factor is measured or reliably estimated for the tissue used in the determination of the BAF.
C.
1. The field studies used shall be limited to those conducted in the Great Lakes System with fish at or near the top of the aquatic food chain (i.e., in trophic levels 3 and/or 4).
2. Samples of surface sediments (0-1 cm is ideal) shall be from locations in which there is net deposition of fine sediment and is representative of average surface sediment in the vicinity of the organism.
3. The K
4. The site of the field study should not be so unique that the resulting BAF cannot be extrapolated to other locations where the criteria and values will apply.
5. The tropic level of the fish species shall be determined.
6. The percent lipid shall be either measured or reliably estimated for the tissue used in the determination of the BAF.
D.
1. The test organism shall not be diseased, unhealthy, or adversely affected by the concentration of the chemical.
2. The total concentration of the chemical in the water shall be measured and should be relatively constant during the steady-state time period.
3. The organisms shall be exposed to the chemical using a flow-through or renewal procedure.
4. For organic chemicals, the percent lipid shall be either measured or reliably estimated for the tissue used in the determination of the BCF.
5. For organic chemicals with log K
6. Laboratory-measured BCFs should be determined using fish species, but BCFs determined with molluscs and other invertebrates may be used with caution. For example, because invertebrates metabolize some chemicals less efficiently than vertebrates, a baseline BCF determined for such a chemical using invertebrates is expected to be higher than a comparable baseline BCF determined using fish.
7. If laboratory-measured BCFs increase or decrease as the concentration of the chemical increases in the test solutions in a bioconcentration test, the BCF measured at the lowest test concentration that is above concentrations existing in the control water shall be used (i.e., a BCF should be calculated from a control treatment). The concentrations of an inorganic chemical in a bioconcentration test should be greater than normal background levels and greater than levels required for normal nutrition of the test species if the chemical is a micronutrient, but below levels that adversely affect the species. Bioaccummulation of an inorganic chemical might be overestimated if concentrations are at or below normal background levels due to, for example, nutritional requirements of the test organisms.
8. For inorganic and organic chemicals, BCFs shall be used only if they are expressed on a wet weight basis. BCFs reported on a dry weight basis cannot be converted to wet weight unless a conversion factor is measured or reliably estimated for the tissue used in the determination of the BAF.
9. BCFs for organic chemicals may be based on measurement or radioactivity only when the BCF is intended to include metabolites or when there is confidence that there is no interference due to metabolites.
10. The calculation of the BCF must appropriately address growth dilution.
11. Other aspects of the methodology used should be similar to those described by ASTM (1990).
E.
1. The K
2. The predicted baseline BCF shall be calculated using the equation: predicted baseline BCF = K
where:
K
F.
Log K
Log K
2. The CLOGP program is a computer program available from Pomona College. A value of K
G. This methodology provides overall guidance for the derivation of BAFs, but it cannot cover all the decisions that must be made in the review and selection of acceptable data. Professional judgment is required throughout the process. A degree of uncertainty is associated with the determination of any BAF, BSAF, BCF or K
H. Hereinafter in this methodology, the terms BAF, BSAF, BCF and K
Baseline BAFs shall be derived using the following four methods, which are listed from most preferred to least preferred:
A. A measured baseline BAF for an organic or inorganic chemical derived from a field study of acceptable quality.
B. A predicted baseline BAF for an organic chemical derived using field-measured BSAFs of acceptable quality.
C. A predicted baseline BAF for an organic or inorganic chemical derived from a BCF measured in a laboratory study of acceptable quality and a FCM.
D. A predicted baseline BAF for an organic chemical derived from a K
For comparative purposes, baseline BAFs should be derived for each chemical by as many of the four methods as available data allow.
A.
2. Because BAFs and BCFs for organic chemicals are related to the percent lipid, it does not make any difference whether the tissue sample is whole body or edible portion, but both the BAF (or BCF) and the percent lipid must be determined for the same tissue. The percent lipid of the tissue should be measured during the BAF or BCF study, but in some cases it can be reliably estimated from measurements on tissue from other organisms. If percent lipid is not reported for the test organisms in the original study, it may be obtained from the author; or, in the case of a laboratory study, lipid data for the same or a comparable laboratory population of test organisms that were used in the original study may be used.
3. The lipid-normalized concentration, C
B.
The fraction of the total chemical in the ambient water that is freely dissolved, f
C.
D.
E.
2. A BSAF shall be calculated using the following equation:
3. The organic carbon-normalized concentration of a chemical in sediment, C
4. Predicting BAFs from BSAFs requires data from a steady-state (or near steady-state) condition between sediment and ambient water for both a reference chemical “r” with a field-measured BAF
5. The trophic level to which the baseline BAF applies is the same as the trophic level of the organisms used in the determination of the BSAF. For each trophic level, a species mean baseline BAF shall be calculated as the geometric mean if more than one baseline BAF is predicted from BSAFs for a given species. For each trophic level, the geometric mean of the species mean baseline BAFs derived using BSAFs shall be calculated.
6. If a baseline BAF based on a measured BSAF is available for either trophic level 3 or 4, but not both, a baseline BAF for the other trophic level shall be calculated using the ratio of the FCMs that are obtained by linear interpolation from Table B-1 for the chemical.
F.
G.
Baseline BAF=(FCM) (predicted baseline BCF)=(FCM) (K
A. To calculate human health and wildlife BAFs for an organic chemical, the K
B. The human health BAFs for an organic chemical shall be calculated using the following equations:
For trophic level 3:
For trophic level 4:
0.0182 and 0.0310 are the standardized fraction lipid values for trophic levels 3 and 4, respectively, that are used to derive human health criteria and values for the GLI.
C. The wildlife BAFs for an organic chemical shall be calculated using the following equations:
For trophic level 3:
For trophic level 4:
0.0646 and 0.1031 are the standardized fraction lipid values for trophic levels 3 and 4, respectively, that are used to derive wildlife criteria for the GLI.
A. For inorganic chemicals, the baseline BAFs for trophic levels 3 and 4 are both assumed to equal the BCF determined for the chemical with fish, i.e., the FCM is assumed
B.
1. Measured BAFs and BCFs used to determine human health BAFs for inorganic chemicals shall be based on edible tissue (e.g., muscle) of freshwater fish unless it is demonstrated that whole-body BAFs or BCFs are similar to edible-tissue BAFs or BCFs. BCFs and BAFs based on measurements of aquatic plants and invertebrates should not be used in the derivation of human health criteria and values.
2. If one or more field-measured baseline BAFs for an inorganic chemical are available from studies conducted in the Great Lakes System with the muscle of fish:
a. For each trophic level, a species mean measured baseline BAF shall be calculated as the geometric mean if more than one measured BAF is available for a given species; and
b. For each trophic level, the geometric mean of the species mean measured baseline BAFs shall be used as the human health BAF for that chemical.
3. If an acceptable measured baseline BAF is not available for an inorganic chemical and one or more acceptable edible-portion laboratory-measured BCFs are available for the chemical, a predicted baseline BAF shall be calculated by multiplying the geometric mean of the BCFs times a FCM. The FCM will be 1.0 unless chemical-specific biomagnification data support using a multiplier other than 1.0. The predicted baseline BAF shall be used as the human health BAF for that chemical.
C.
1. Measured BAFs and BCFs used to determine wildlife BAFs for inorganic chemicals shall be based on whole-body freshwater fish and invertebrate data unless it is demonstrated that edible-tissue BAFs or BCFs are similar to whole-body BAFs or BCFs.
2. If one or more field-measured baseline BAFs for an inorganic chemical are available from studies conducted in the Great Lakes System with whole body of fish or invertebrates:
a. For each trophic level, a species mean measured baseline BAF shall be calculated as the geometric mean if more than one measured BAF is available for a given species.
b. For each trophic level, the geometric mean of the species mean measured baseline BAFs shall be used as the wildlife BAF for that chemical.
3. If an acceptable measured baseline BAF is not available for an inorganic chemical and one or more acceptable whole-body laboratory-measured BCFs are available for the chemical, a predicted baseline BAF shall be calculated by multiplying the geometric mean of the BCFs times a FCM. The FCM will be 1.0 unless chemical-specific biomagnification data support using a multiplier other than 1.0. The predicted baseline BAF shall be used as the wildlife BAF for that chemical.
For both organic and inorganic chemicals, human health and wildlife BAFs for both trophic levels shall be reviewed for consistency with all available data concerning the bioaccumulation, bioconcentration, and metabolism of the chemical. For example, information concerning octanol-water partitioning, molecular size, or other physicochemical properties that might enhance or inhibit bioaccumulation should be considered for organic chemicals. BAFs derived in accordance with this methodology should be modified if changes are justified by available data.
ASTM. 1990. Standard Practice for Conducting Bioconcentration Tests with Fishes and Saltwater Bivalve Molluscs. Standard E 1022. American Society for Testing and Materials, Philadelphia, PA.
Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) this appendix.
Great Lakes States and Tribes shall adopt provisions consistent with this appendix C to ensure protection of human health.
A.
B.
C.
D.
The best available toxicity data on the adverse health effects of a chemical and the best data on bioaccumulation factors shall be used when developing human health Tier I criteria or Tier II values. The best available toxicity data shall include data from well-conducted epidemiologic and/or animal studies which provide, in the case of carcinogens, an adequate weight of evidence of potential human carcinogenicity and, in the case of noncarcinogens, a dose-response relationship involving critical effects biologically relevant to humans. Such information should be obtained from the EPA Integrated Risk Information System (IRIS) database, the scientific literature, and other informational databases, studies and/or reports containing adverse health effects data of adequate quality for use in this procedure. Strong consideration shall be given to the most currently available guidance provided by IRIS in deriving criteria or values, supplemented with any recent data not incorporated into IRIS. When deviations from IRIS are anticipated or considered necessary, it is strongly recommended that such actions be communicated to the EPA Reference Dose (RfD) and/or the Cancer Risk Assessment Verification Endeavor (CRAVE) workgroup immediately. The best available bioaccumulation data shall include data from field studies and well-conducted laboratory studies.
A.
Chemicals are described as “human carcinogens” when there is sufficient evidence from epidemiological studies to support a causal association between exposure to the chemicals and cancer. Chemicals described as “probable human carcinogens” include chemicals for which the weight of evidence of human carcinogenicity based on epidemiological studies is limited. Limited human evidence is that which indicates that a causal interpretation is credible, but that alternative explanations, such as chance, bias, or confounding, cannot adequately be excluded. Probable human carcinogens are also agents for which there is sufficient evidence from animal studies and for which there is inadequate evidence or no data from epidemiologic studies. Sufficient animal evidence is data which indicates that there is an increased incidence of malignant tumors or combined malignant and benign tumors: (a) in multiple species or strains; (b) in multiple experiments (e.g., with different routes of administration or using different dose levels); or (c) to an unusual degree in a single experiment with regard to high incidence, unusual site or type of tumor, or early age at onset. Additional evidence may be provided by data on dose-response effects, as well as information from short-term tests (such as mutagenicity/genotoxicity tests which help determine whether the chemical interacts directly with DNA) or on chemical structure, metabolism or mode of action.
“Possible human carcinogens” are chemicals with limited evidence of carcinogenicity in animals in the absence of human data. Limited animal evidence is defined as data which suggests a carcinogenic effect but are limited because: (a) The studies involve a single species, strain, or experiment and do not meet criteria for sufficient evidence (see preceding paragraph); or (b) the experiments are restricted by inadequate dosage levels, inadequate duration of exposure to the agent, inadequate period of follow-up, poor survival, too few animals, or inadequate reporting; or (c) the studies indicate an increase in the incidence of benign tumors only. More specifically, this group can include a wide variety of evidence, e.g., (a) a malignant tumor response in a single well-conducted experiment that does not meet conditions for sufficient evidence, (b) tumor response of marginal statistical significance in studies having inadequate design or reporting, (c) benign but not malignant tumors with an agent showing no response in a variety of short-term tests for mutagenicity, and (d) response of marginal statistical significance in a tissue known to have a high or variable background rate.
1.
2.
B.
1.
2.
C.
1.
2.
The fundamental components of the procedure to calculate Tier I criteria or Tier II values are the same. However, certain of the aspects of the procedure designed to account for short-duration studies or other limitations in data are more likely to be relevant in deriving Tier II values than Tier I criteria.
A.
1. A non-threshold mechanism of carcinogenesis shall be assumed unless biological data adequately demonstrate the existence of a threshold on a chemical-specific basis.
2. All appropriate human epidemiologic data and animal cancer bioassay data shall be considered. Data specific to an environmentally appropriate route of exposure shall be used. Oral exposure should be used preferentially over dermal and inhalation since, in most cases, the exposure routes of greatest concern are fish consumption and drinking water/incidental ingestion. The risk associated dose shall be set at a level corresponding to an incremental cancer risk of one in 100,000. If acceptable human epidemiologic data are available for a chemical, it shall be used to derive the risk associated dose. If acceptable human epidemiologic data are not available, the risk associated dose shall be derived from available animal bioassay data. Data from a species that is considered most biologically relevant to humans (i.e., responds most like humans) is preferred where all other considerations regarding quality of data are equal. In the absence of data to distinguish the most relevant species, data from the most sensitive species tested, i.e., the species showing a carcinogenic effect at the lowest administered dose, shall generally be used.
3. When animal bioassay data are used and a non-threshold mechanism of carcinogenicity is assumed, the data are fitted to a linearized multistage computer model (e.g., Global '86 or equivalent model). Global '86 is the linearized multistage model, derived by Howe, Crump and Van Landingham (1986), which EPA uses to determine cancer potencies. The upper-bound 95 percent confidence limit on risk (or, the lower 95 percent confidence limit on dose) at the one in 100,000 risk level shall be used to calculate a risk associated dose (RAD). Other models, including modifications or variations of the linear multistage model which are more appropriate to the available data may be used where scientifically justified.
4. If the duration of the study is significantly less than the natural lifespan of the test animal, the slope may be adjusted on a case-by-case basis to compensate for latent tumors which were not expressed (e.g., U.S. EPA, 1980) In the absence of alternative approaches which compensate for study durations significantly less than lifetime, the permitting authority may use the process described in the 1980 National Guidelines (see 45 FR 79352).
5. A species scaling factor shall be used to account for differences between test species and humans. It shall be assumed that milligrams per surface area per day is an equivalent dose between species (U.S. EPA, 1986). All doses presented in mg/kg bodyweight will be converted to an equivalent surface area dose by raising the mg/kg dose to the 2/3 power. However, if adequate pharmacokinetic and metabolism studies are available, these data may be factored into the adjustment for species differences on a case-by-case basis.
6. Additional data selection and adjustment decisions must also be made in the process of quantifying risk. Consideration must be given to tumor selection for modeling, e.g., pooling estimates for multiple tumor types and identifying and combining benign and malignant tumors. All doses shall be adjusted to give an average daily dose over the study duration. Adjustments in the rate of tumor response must be made for early mortality in test species. The goodness-of-fit of the model to the data must also be assessed.
7. When a linear, non-threshold dose response relationship is assumed, the RAD shall be calculated using the following equation:
8. If human epidemiologic data and/or other biological data (animal) indicate that a chemical causes cancer via a threshold mechanism, the risk associated dose may, on a case-by-case basis, be calculated using a method which assumes a threshold mechanism is operative.
B.
1. Noncarcinogens shall generally be assumed to have a threshold dose or concentration below which no adverse effects should be observed. Therefore, the Tier I criterion or Tier II value is the maximum water concentration of a substance at or below which a lifetime exposure from drinking the water, consuming fish caught in the water, and ingesting water as a result of participating in water-related recreation activities is likely to be without appreciable risk of deleterious effects.
For some noncarcinogens, there may not be a threshold dose below which no adverse effects should be observed. Chemicals acting as genotoxic teratogens and germline mutagens are thought to possibly produce reproductive and/or developmental effects via a genetically linked mechanism which may have no threshold. Other chemicals also may not demonstrate a threshold. Criteria for these types of chemicals will be established on a case-by-case basis using appropriate assumptions reflecting the likelihood that no threshold exists.
2. All appropriate human and animal toxicologic data shall be reviewed and evaluated. To the maximum extent possible, data most specific to the environmentally relevant route of exposure shall be used. Oral exposure data should be used preferentially over dermal and inhalation since, in most cases, the exposure routes of greatest concern are fish consumption and drinking water/incidental ingestion. When acceptable human data are not available (e.g., well-conducted epidemiologic studies), animal data from species most biologically relevant to humans shall be used. In the absence of data to distinguish the most relevant species, data from the most sensitive animal species tested, i.e., the species showing a toxic effect at the lowest administered dose (given a relevant route of exposure), should generally be used.
3. Minimum data requirements are specified in section II.B of this appendix. The experimental exposure level representing the highest level tested at which no adverse effects were demonstrated (NOAEL) from studies satisfying the provisions of section II.B of this appendix shall be used for criteria calculations. In the absence of a NOAEL, the LOAEL from studies satisfying the provisions of section II.B of this appendix may be
4. Uncertainty factors shall be used to account for the uncertainties in predicting acceptable dose levels for the general human population based upon experimental animal data or limited human data.
a. An uncertainty factor of 10 shall generally be used when extrapolating from valid experimental results from studies on prolonged exposure to average healthy humans. This 10-fold factor is used to protect sensitive members of the human population.
b. An uncertainty factor of 100 shall generally be used when extrapolating from valid results of long-term studies on experimental animals when results of studies of human exposure are not available or are inadequate. In comparison to a, above, this represents an additional 10-fold uncertainty factor in extrapolating data from the average animal to the average human.
c. An uncertainty factor of up to 1000 shall generally be used when extrapolating from animal studies for which the exposure duration is less than chronic, but greater than subchronic (e.g., 90 days or more in length), or when other significant deficiencies in study quality are present, and when useful long-term human data are not available. In comparison to b, above, this represents an additional UF of up to 10-fold for less than chronic, but greater than subchronic, studies.
d. An UF of up to 3000 shall generally be used when extrapolating from animal studies for which the exposure duration is less than subchronic (e.g., 28 days). In comparison to b above, this represents an additional UF of up to 30-fold for less than subchronic studies (e.g., 28-day). The level of additional uncertainty applied for less than chronic exposures depends on the duration of the study used relative to the lifetime of the experimental animal.
e. An additional UF of between one and ten may be used when deriving a criterion from a LOAEL. This UF accounts for the lack of an identifiable NOAEL. The level of additional uncertainty applied may depend upon the severity and the incidence of the observed adverse effect.
f. An additional UF of between one and ten may be applied when there are limited effects data or incomplete sub-acute or chronic toxicity data (e.g., reproductive/developmental data). The level of quality and quantity of the experimental data available as well as structure-activity relationships may be used to determine the factor selected.
g. When deriving an UF in developing a Tier I criterion or Tier II value, the total uncertainty, as calculated following the guidance of sections 4.a through f, cited above, shall not exceed 10,000 for Tier I criteria and 30,000 for Tier II values.
5. All study results shall be converted, as necessary, to the standard unit for acceptable daily exposure of milligrams of toxicant per kilogram of body weight per day (mg/kg/day). Doses shall be adjusted for continuous exposure (i.e., seven days/week, 24 hours/day, etc.).
C.
1.
BW = body weight of an average human (BW = 70kg).
WC
—or—
WC
FC = per capita daily consumption of regionally caught freshwater fish = 0.015kg/day (0.0036 kg/day for trophic level 3 and 0.0114 kg/day for trophic level 4).
BAF = bioaccumulation factor for trophic level 3 and trophic level 4, as derived using the BAF methodology in appendix B to part 132.
2.
3.
A. Howe, R.B., K.S. Crump and C. Van Landingham. 1986. Computer Program to Extrapolate Quantitative Animal Toxicity Data to Low Doses. Prepared for EPA under subcontract #2-251U-2745 to Research Triangle Institute.
B. U.S. Environmental Protection Agency. 1980. Water Quality Criteria Availability, Appendix C Guidelines and Methodology Used in the Preparation of Health Effects Assessment Chapters of the Consent Decree Water Quality Criteria Documents. Available from U.S. Environmental Protection Agency, Office of Water Resource Center (WH-550A), 1200 Pennsylvania Ave., NW., Washington, DC 20460.
C. U.S. Environmental Protection Agency. 1986. Guidelines for Carcinogen Risk Assessment. Available from U.S. Environmental Protection Agency, Office of Water Resource Center (WH-550A), 1200 Pennsylvania Ave., NW., Washington, DC 20460.
Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) this appendix.
A. A Great Lakes Water Quality Wildlife Criterion (GLWC) is the concentration of a substance which is likely to, if not exceeded, protect avian and mammalian wildlife populations inhabiting the Great Lakes basin from adverse effects resulting from the ingestion of water and aquatic prey taken from surface waters of the Great Lakes System. These criteria are based on existing toxicological studies of the substance of concern and quantitative information about the exposure of wildlife species to the substance (i.e., food and water consumption rates). Since toxicological and exposure data for individual wildlife species are limited, a GLWC
B. This appendix establishes a methodology which is required when developing Tier I wildlife criteria for bioaccumulative chemicals of concern (BCCs). The use of the equation provided in the methodology is encouraged, but not required, for the development of Tier I criteria or Tier II values for pollutants other than those identified in Table 6-A for which Tier I criteria or Tier II values are determined to be necessary for the protection of wildlife in the Great Lakes basin. A discussion of the methodology for deriving Tier II values can be found in the Great Lakes Water Quality Initiative Technical Support Document for Wildlife Criteria (Wildlife TSD).
C. In the event that this methodology is used to develop criteria for pollutants other than BCCs, or in the event that the Tier II methodology described in the Wildlife TSD is used to derive Tier II values, the methodology for deriving bioaccumulation factors under appendix B to part 132 must be used in either derivation. For chemicals which do not biomagnify to the extent of BCCs, it may be appropriate to select different representative species which are better examples of species with the highest exposures for the given chemical. The equation presented in this methodology, however, is still encouraged. In addition, procedure 1 of appendix F of this part describes the procedures for calculating site-specific wildlife criteria.
D. The term “wildlife value” (WV) is used to denote the value for each representative species which results from using the equation presented below, the value obtained from averaging species values within a class, or any value derived from application of the site-specific procedure provided in procedure 1 of appendix F of this part. The WVs calculated for the representative species are used to calculate taxonomic class-specific WVs. The WV is the concentration of a substance which, if not exceeded, should better protect the taxon in question.
E. “Tier I wildlife criterion,” or “Tier I criterion” is used to denote the number derived from data meeting the Tier I minimum database requirements, and which will be protective of the two classes of wildlife. It is synonymous with the term “GLWC,” and the two are used interchangeably.
Table 4 of Part 132 and Table D-1 of this appendix contain criteria calculated by EPA using the methodology provided below.
A.
B.
C.
A.
B.
1. The mammalian data must come from at least one well-conducted study of 90 days or greater designed to observe subchronic or chronic effects as defined in this document.
2. The avian data must come from at least one well-conducted study of 70 days or greater designed to observe subchronic or chronic effects as defined in this document.
3. In reviewing the studies from which a TD is derived for use in calculating a WV, studies involving exposure routes other than oral may be considered only when an equivalent oral daily dose can be estimated and technically justified because the criteria calculations are based on an oral route of exposure.
4. In assessing the studies which meet the minimum data requirements, preference should be given to studies which assess effects on developmental or reproductive endpoints because, in general, these are more important endpoints in ensuring that a population's productivity is maintained. The Wildlife TSD provides additional discussion on the selection of an appropriate toxicity study.
C.
1. If more than one TD value is available within a taxonomic class, based on different endpoints of toxicity, that TD, which is likely to reflect best potential impacts to wildlife populations through resultant changes in mortality or fecundity rates, shall be used for the calculation of WVs.
2. If more than one TD is available within a taxonomic class, based on the same endpoint of toxicity, the TD from the most sensitive species shall be used.
3. If more than one TD based on the same endpoint of toxicity is available for a given species, the TD for that species shall be calculated using the geometric mean of those TDs.
D.
2. If the TD is given in milligrams of toxicant per liter of water consumed by the test animals (mg/L), the TD shall be multiplied by the daily average volume of water consumed by the test animals in liters per day (L/d) and divided by the average weight of the test animals in kilograms (kg).
3. If the TD is given in milligrams of toxicant per kilogram of food consumed by the test animals (mg/kg), the TD shall be multiplied by the average amount of food in kilograms consumed daily by the test animals (kg/d) and divided by the average weight of the test animals in kilograms (kg).
E.
2. If the study does not provide the needed values, the values shall be determined from appropriate scientific literature. For studies done with domestic laboratory animals, either the Registry of Toxic Effects of Chemical Substances (National Institute for Occupational Safety and Health, the latest edition, Cincinnati, OH), or Recommendations for and Documentation of Biological Values for Use in Risk Assessment (U.S. EPA, 1988) should be consulted. When these references do not contain exposure information for the species used in a given study, either the allometric equations from Calder and Braun (1983) and Nagy (1987), which are presented below, or the exposure estimation methods presented in Chapter 4 of the Wildlife Exposure Factors Handbook (U.S. EPA, 1993), should be applied to approximate the needed feeding or drinking rates. Additional discussion and recommendations are provided in the Wildlife TSD. The choice of the methods described above is at the discretion of the State or Tribe.
3. For mammalian species, the general allometric equations are:
a. F = 0.0687 × (Wt)
b. W = 0.099 × (Wt)
4. For avian species, the general allometric equations are:
a. F = 0.0582 (Wt)
b. W = 0.059 × (Wt)
F.
G.
H.
2. For the derivation of Tier I criteria, a UF
3. For Tier I wildlife criteria, the UF
A.
B.
A. Barnes, D.G. and M. Dourson. 1988. Reference Dose (RfD): Description and Use in Health Risk Assessments. Regul. Toxicol. Pharmacol. 8:471-486.
B. Calder III, W.A. and E.J. Braun. 1983. Scaling of Osmotic Regulation in Mammals and Birds. American Journal of Physiology. 244:601-606.
C. Nagy, K.A. 1987. Field Metabolic Rate and Food Requirement Scaling in Mammals and Birds. Ecological Monographs. 57(2):111-128.
D. National Academy of Sciences. 1977. Chemical Contaminants: Safety and Risk Assessment,
E. National Academy of Sciences. 1980. Problems of Risk Estimation,
F. National Institute for Occupational Safety and Health. Latest edition. Registry of Toxic Effects of Chemical Substances. Division of Standards Development and Technology Transfer. (Available only on microfiche or as an electronic database.)
G. U.S. EPA. 1980. Appendix C. Guidelines and Methodology Used in the Preparation of Health Effect Assessment Chapters of the Consent Decree Water Criteria Documents, pp. 79347-79357
H. U.S. EPA. 1988. Recommendations for, and documentation of, biological values for use in risk assessment. NTIS-PB88-179874.
I. U.S. EPA. 1993. Wildlife Exposure Factors Handbook, Volumes I and II. EPA/600/R-93/187a and b.
Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) appendix E to part 132.
The State or Tribe shall adopt an antidegradation standard applicable to all waters of the Great Lakes System and identify the methods for implementing such a standard. Consistent with 40 CFR 131.12, an acceptable antidegradation standard and implementation procedure are required elements of a State's or Tribe's water quality standards program. Consistent with 40 CFR 131.6, a complete water quality standards submission needs to include both an antidegradation standard and antidegradation implementation procedures. At a minimum, States and Tribes shall adopt provisions in their antidegradation standard and implementation methods consistent with sections I, II, III and IV of this appendix, applicable to pollutants identified as bioaccumulative chemicals of concern (BCCs).
This antidegradation standard shall be applicable to any action or activity by any source, point or nonpoint, of pollutants that is anticipated to result in an increased loading of BCCs to surface waters of the Great Lakes System and for which independent regulatory authority exists requiring compliance with water quality standards. Pursuant to this standard:
A. Existing instream water uses, as defined pursuant to 40 CFR 131, and the level of water quality necessary to protect existing uses shall be maintained and protected. Where designated uses of the waterbody are impaired, there shall be no lowering of the water quality with respect to the pollutant or pollutants which are causing the impairment;
B. Where, for any parameter, the quality of the waters exceed levels necessary to support the propagation of fish, shellfish, and wildlife and recreation in and on the waters, that water shall be considered high quality for that parameter consistent with the definition of high quality water found at section II.A of this appendix and that quality shall be maintained and protected unless the State or Tribe finds, after full satisfaction of intergovernmental coordination and public participation provisions of the State's or Tribe's continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation, the State or Tribe shall assure water quality adequate to protect existing uses fully. Further, the State or Tribe shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control. The State or Tribe shall utilize the Antidegradation Implementation Procedures adopted pursuant to the requirements of this regulation in determining if any lowering of water quality will be allowed;
C. Where high quality waters constitute an outstanding national resource, such as waters of national and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected; and
D. In those cases where the potential lowering of water quality is associated with a thermal discharge, the decision to allow such degradation shall be consistent with section 316 of the Clean Water Act (CWA).
A.
Important because of protection through official action, such as Federal or State law, Presidential or secretarial action, international treaty, or interstate compact;
Having exceptional recreational significance;
Having exceptional ecological significance;
Having other special environmental, recreational, or ecological attributes; or waters whose designation as Outstanding National Resource Waters is reasonably necessary for the protection of other waters so designated.
(1) Construction of a new regulated facility or modification of an existing regulated facility such that a new or modified control document is required;
(2) Modification of an existing regulated facility operating under a current control document such that the production capacity of the facility is increased;
(3) Addition of a new source of untreated or pretreated effluent containing or expected to contain any BCC to an existing wastewater treatment works, whether public or private;
(4) A request for an increased limit in an applicable control document;
(5) Other deliberate activities that, based on the information available, could be reasonably expected to result in an increased loading of any BCC to any waters of the Great Lakes System.
b. Notwithstanding the above, changes in loadings of any BCC within the existing capacity and processes, and that are covered by the existing applicable control document, are not subject to an antidegradation review. These changes include, but are not limited to:
(1) Normal operational variability;
(2) Changes in intake water pollutants;
(3) Increasing the production hours of the facility, (e.g., adding a second shift); or
(4) Increasing the rate of production.
C. Also, excluded from an antidegradation review are new effluent limits based on improved monitoring data or new water quality criteria or values that are not a result of changes in pollutant loading.
B. For all waters, the Director shall ensure that the level of water quality necessary to protect existing uses is maintained. In order to achieve this requirement, and consistent with 40 CFR 131.10, water quality standards use designations must include all existing uses. Controls shall be established as necessary on point and nonpoint sources of pollutants to ensure that the criteria applicable to the designated use are achieved in the water and that any designated use of a downstream water is protected. Where water quality does not support the designated uses of a waterbody or ambient pollutant concentrations exceed water quality criteria applicable to that waterbody, the Director shall not allow a lowering of water quality for the pollutant or pollutants preventing the attainment of such uses or exceeding such criteria.
C. For Outstanding National Resource Waters:
1. The Director shall ensure, through the application of appropriate controls on pollutant sources, that water quality is maintained and protected.
2. Exception. A short-term, temporary (i.e., weeks or months) lowering of water quality may be permitted by the Director.
D. For high quality waters, the Director shall ensure that no action resulting in a lowering of water quality occurs unless an antidegradation demonstration has been completed pursuant to section III of this appendix and the information thus provided is
1. The Director shall establish conditions in the control document applicable to the regulated facility that prohibit the regulated facility from undertaking any deliberate action, such that there would be an increase in the rate of mass loading of any BCC, unless an antidegradation demonstration is provided to the Director and approved pursuant to section IV of this appendix prior to commencement of the action. Imposition of limits due to improved monitoring data or new water quality criteria or values, or changes in loadings of any BCC within the existing capacity and processes, and that are covered by the existing applicable control document, are not subject to an antidegradation review.
2. For BCCs known or believed to be present in a discharge, from a point or nonpoint source, a monitoring requirement shall be included in the control document. The control document shall also include a provision requiring the source to notify the Director or any increased loadings. Upon notification, the Director shall require actions as necessary to reduce or eliminate the increased loading.
3. Fact Sheets prepared pursuant to 40 CFR 124.8 and 124.56 shall reflect any conditions developed under sections II.D.1 or II.D.2 of this appendix and included in a permit.
E.
1. A State or Tribe may designate certain specified areas of the Lake Superior Basin as Lake Superior Basin—Outstanding National Resource Waters for the purpose of prohibiting the new or increased discharge of Lake Superior bioaccumulative substances of immediate concern from point sources in these areas.
2. States and Tribes may designate all waters of the Lake Superior Basin as Outstanding International Resource Waters for the purpose of restricting the increased discharge of Lake Superior bioaccumulative substances of immediate concern from point sources consistent with the requirements of sections III.C and IV.B of this appendix.
F.
1. Short-term, temporary (i.e., weeks or months) lowering of water quality;
2. Bypasses that are not prohibited at 40 CFR 122.41(m); and
3. Response actions pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as amended, or similar Federal, State or Tribal authorities, undertaken to alleviate a release into the environment of hazardous substances, pollutants or contaminants which may pose an imminent and substantial danger to public health or welfare.
Any entity seeking to lower water quality in a high quality water or create a new or increased discharge of Lake Superior bioaccumulative substances of immediate concern in a Lake Superior Outstanding International Resource Water must first, as required by sections II.D or II.E.2 of this appendix, submit an antidegradation demonstration for consideration by the Director. States and Tribes should tailor the level of detail and documentation in antidegradation reviews, to the specific circumstances encountered. The antidegradation demonstration shall include the following:
A.
B.
C.
D.
E.
A. Once the Director determines that the information provided by the entity proposing to increase loadings is administratively complete, the Director shall use that information to determine whether or not the lowering of water quality is necessary, and, if it is necessary, whether or not the lowering of water quality will support important social and economic development in the area. If the proposed lowering of water quality is either not necessary, or will not support important social and economic development, the Director shall deny the request to lower water quality. If the lowering of water quality is necessary, and will support important social and economic development, the Director may allow all or part of the proposed lowering to occur as necessary to accommodate the important social and economic development. In no event may the decision reached under this section allow water quality to be lowered below the minimum level required to fully support existing and designated uses. The decision of the Director shall be subject to the public participation requirements of 40 CFR 25.
B. If States designate the waters of Lake Superior as Outstanding International Resource Waters pursuant to section II.E.2 of this appendix, any entity requesting to lower water quality in the Lake Superior Basin as a result of the new or increased discharge of any Lake Superior bioaccumulative substance of immediate concern shall be required to install and utilize the best technology in process and treatment as identified by the Director.
Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) this procedure.
1.
a. Aquatic life criteria or values may be modified on a site-specific basis to provide an additional level of protection, pursuant to authority reserved to the States and Tribes under Clean Water Act (CWA) section 510.
Guidance on developing site-specific criteria in these instances is provided in Chapter 3 of the U.S. EPA Water Quality Standards Handbook, Second Edition—Revised (1994).
b. Less stringent site-specific modifications to chronic or acute aquatic life criteria or values may be developed when:
i. The local water quality characteristics such as Ph, hardness, temperature, color, etc., alter the biological availability or toxicity of a pollutant; or
ii. The sensitivity of the aquatic organisms species that “occur at the site” differs from the species actually tested in developing the criteria. The phrase “occur at the site” includes the species, genera, families, orders, classes, and phyla that: are usually present at the site; are present at the site only seasonally due to migration; are present intermittently because they periodically return to or extend their ranges into the site; were present at the site in the past, are not currently present at the site due to degraded conditions, and are expected to return to the site when conditions improve; are present in nearby bodies of water, are not currently present at the site due to degraded conditions, and are expected to be present at the site when conditions improve. The taxa that “occur at the site” cannot be determined merely by sampling downstream and/or upstream of the site at one point in time. “Occur at the site” does not include taxa that were once present at the site but cannot exist at the site now due to permanent physical alteration of the habitat at the site resulting, for example, from dams, etc.
c. Less stringent modifications also may be developed to acute and chronic aquatic life criteria or values to reflect local physical and hydrological conditions.
Guidance on developing site-specific criteria is provided in Chapter 3 of the U.S. EPA Water Quality Standards Handbook, Second Edition—Revised (1994).
d. Any modifications to protect threatened or endangered aquatic species required by procedure 1.A of this appendix may be accomplished using either of the two following procedures:
i. If the Species Mean Acute Value (SMAV) for a listed or proposed species, or for a surrogate of such species, is lower than the calculated Final Acute Value (FAV), such lower SMAV may be used instead of the calculated FAV in developing site-specific modified criteria; or,
ii. The site-specific criteria may be calculated using the recalculation procedure for site-specific modifications described in Chapter 3 of the U.S. EPA Water Quality Standards Handbook, Second Edition—Revised (1994).
2.
a. Wildlife water quality criteria may be modified on a site-specific basis to provide an additional level of protection, pursuant to authority reserved to the States and Tribes under CWA section 510.
b. Less stringent site-specific modifications to wildlife water quality criteria may be developed when a site-specific bioaccumulation factor (BAF) is derived which is lower than the system-wide BAF derived under appendix B of this part. The modification must consider both the mobility of prey organisms and wildlife populations in defining the site for which criteria are developed. In addition, there must be a showing that:
i. Any increased uptake of the toxicant by prey species utilizing the site will not cause adverse effects in wildlife populations; and
ii. Wildlife populations utilizing the site or downstream waters will continue to be fully protected.
c. Any modification to protect endangered or threatened wildlife species required by procedure 1.A of this appendix must consider both the mobility of prey organisms and wildlife populations in defining the site for which criteria are developed, and may be accomplished by using the following recommended method.
i. The methodology presented in appendix D to part 132 is used, substituting appropriate species-specific toxicological, epidemiological, or exposure information, including changes to the BAF;
ii. An interspecies uncertainty factor of 1 should be used where epidemiological data are available for the species in question. If necessary, species-specific exposure parameters can be derived as presented in Appendix D of this part;
iii. An intraspecies uncertainty factor (to account for protection of individuals within a wildlife population) should be applied in the denominator of the effect part of the wildlife equation in appendix D of this part in a manner consistent with the other uncertainty factors described in appendix D of this part; and
iv. The resulting wildlife value for the species in question should be compared to the two class-specific wildlife values which were previously calculated, and the lowest of the three shall be selected as the site-specific modification.
Further discussion on the use of this methodology may be found in the Great Lakes Water Quality Initiative Technical Support Document for Wildlife Criteria.
3.
a. BAFs may be modified on a site-specific basis to larger values, pursuant to the authority reserved to the States and Tribes under CWA section 510, where reliable data show that local bioaccumulation is greater than the system-wide value.
b. BAFs may be modified on a site-specific basis to lower values, where scientifically defensible, if:
i. The fraction of the total chemical that is freely dissolved in the ambient water is different than that used to derive the system-wide BAFs (i.e., the concentrations of particulate organic carbon and the dissolved organic carbon are different than those used to derive the system-wide BAFs);
ii. Input parameters of the Gobas model, such as the structure of the aquatic food web and the disequilibrium constant, are different at the site than those used to derive the system-wide BAFs;
iii. The percent lipid of aquatic organisms that are consumed and occur at the site is different than that used to derive the system-wide BAFs; or
iv. Site-specific field-measured BAFs or biota-sediment accumulation factor (BSAFs) are determined.
If site-specific BAFs are derived, they shall be derived using the methodology in appendix B of this part.
c. Any more stringent modifications to protect threatened or endangered species required by procedure 1.A of this appendix shall be derived using procedures set forth in the methodology in appendix B of this part.
4.
a. Human health criteria or values may be modified on a site-specific basis to provide an additional level of protection, pursuant to authority reserved to the States and Tribes under CWA section 510. Human health criteria or values shall be modified on a site-specific basis to provide additional protection appropriate for highly exposed subpopulations.
b. Less stringent site-specific modifications to human health criteria or values may be developed when:
i. local fish consumption rates are lower than the rate used in deriving human health
ii. a site-specific BAF is derived which is lower than that used in deriving human health criteria or values under appendix C of this part.
B.
C.
U.S. EPA. 1984. Water Quality Standards Handbook—Revised. Chapter 3 and Appendices. U.S. Environmental Protection Agency, Office of Water Resource Center (RC-4100), 1200 Pennsylvania Ave., NW., Washington, DC 20960.
The Great Lakes States or Tribes may adopt water quality standards (WQS) variance procedures and may grant WQS variances for point sources pursuant to such procedures. Variance procedures shall be consistent with (as protective as) the provisions in this procedure.
A.
1. This provision shall not apply to new Great Lakes dischargers or recommencing dischargers.
2. A variance to a water quality standard shall not be granted that would likely jeopardize the continued existence of any endangered or threatened species listed under Section 4 of the Endangered Species Act (ESA) or result in the destruction or adverse modification of such species' critical habitat.
3. A WQS variance shall not be granted if standards will be attained by implementing effluent limits required under sections 301(b) and 306 of the Clean Water Act (CWA) and by the permittee implementing cost-effective and reasonable best management practices for nonpoint source control.
B.
C.
1. The permittee demonstrates to the State or Tribe that attaining the WQS is not feasible because:
a. Naturally occurring pollutant concentrations prevent the attainment of the WQS;
b. Natural, ephemeral, intermittent or low flow conditions or water levels prevent the attainment of the WQS, unless these conditions may be compensated for by the discharge of sufficient volume of effluent to enable WQS to be met without violating State or Tribal water conservation requirements;
c. Human-caused conditions or sources of pollution prevent the attainment of the WQS and cannot be remedied, or would cause more environmental damage to correct than to leave in place;
d. Dams, diversions or other types of hydrologic modifications preclude the attainment of the WQS, and it is not feasible to restore the waterbody to its original condition or to operate such modification in a way that would result in the attainment of the WQS;
e. Physical conditions related to the natural features of the waterbody, such as the lack of a proper substrate cover, flow, depth, pools, riffles, and the like, unrelated to chemical water quality, preclude attainment of WQS; or
f. Controls more stringent than those required by sections 301(b) and 306 of the CWA would result in substantial and widespread economic and social impact.
2. In addition to the requirements of C.1, above, the permittee shall also:
a. Show that the variance requested conforms to the requirements of the State's or Tribe's antidegradation procedures; and
b. Characterize the extent of any increased risk to human health and the environment associated with granting the variance compared with compliance with WQS absent the variance, such that the State or Tribe is able to conclude that any such increased risk is consistent with the protection of the public health, safety and welfare.
D.
1. All relevant information demonstrating that attaining the WQS is not feasible based on one or more of the conditions in section C.1 of this procedure; and,
2. All relevant information demonstrating compliance with the conditions in section C.2 of this procedure.
E.
F.
1. Compliance with an initial effluent limitation which, at the time the variance is granted, represents the level currently achievable by the permittee, and which is no less stringent than that achieved under the previous permit;
2. That reasonable progress be made toward attaining the water quality standards for the waterbody as a whole through appropriate conditions;
3. When the duration of a variance is shorter than the duration of a permit, compliance with an effluent limitation sufficient to meet the underlying water quality standard, upon the expiration of said variance; and
4. A provision that allows the permitting authority to reopen and modify the permit based on any State or Tribal triennial water quality standards revisions to the variance.
The State shall deny a variance request if the permittee fails to make the demonstrations required under section C of this procedure.
G.
H.
I.
1. Relevant permittee applications pursuant to section D of this procedure;
2. Public comments and records of any public hearings pursuant to section E of this procedure;
3. The final decision pursuant to section F of this procedure; and,
4. NPDES permits issued pursuant to section G of this procedure.
5. Items required by sections I.1 through I.3. of this procedure shall be submitted by the State within 30 days of the date of the final variance decision. The item required by section I.4 of this procedure shall be submitted in accordance with the State or Tribe Memorandum of Agreement with the Regional Administrator pursuant to 40 CFR 123.24.
6. EPA shall review the State or Tribe submittal for compliance with the CWA pursuant to 40 CFR 123.44, and 40 CFR 131.21.
J.
The Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) this procedure 3 for the purpose of developing Total Maximum Daily Loads (TMDLs), Wasteload Allocations (WLAs) in the Absence of TMDLs, and Preliminary Wasteload Allocations for Purposes of Determining the Need for Water Quality Based Effluent Limits (WQBELs), except as specifically provided.
A. Where a State or Tribe develops an assessment and remediation plan that the State or Tribe certifies meets the requirements of sections B through F of this procedure and public participation requirements applicable to TMDLs, and that has been approved by EPA as meeting those requirements under 40 CFR 130.6, the assessment and remediation plan may be used in lieu of a TMDL for purposes of appendix F to part 132. Assessment and remediation plans under this procedure may include, but are not limited to, Lakewide Management Plans, Remedial Action Plans, and State Water Quality Management Plans. Also, any part of an assessment and remediation plan that also satisfies one or more requirements under Clean Water Act (CWA) section 303(d) or implementing regulations may be incorporated by reference into a TMDL as appropriate. Assessment and remediation plans under this
B.
1.
2.
3.
a. TMDLs shall include WLAs for point sources and load allocations (LAs) for nonpoint sources, including natural background, such that the sum of these allocations is not greater than the loading capacity of the water for the pollutant(s) addressed by the TMDL, minus the sum of a specified margin of safety (MOS) and any capacity reserved for future growth.
b. Nonpoint source LAs shall be based on:
i. Existing pollutant loadings if changes in loadings are not reasonably anticipated to occur;
ii. Increases in pollutant loadings that are reasonably anticipated to occur;
iii. Anticipated decreases in pollutant loadings if such decreased loadings are technically feasible and are reasonably anticipated to occur within a reasonable time period as a result of implementation of best management practices or other load reduction measures. In determining whether anticipated decreases in pollutant loadings are technically feasible and can reasonably be expected to occur within a reasonable period of time, technical and institutional factors shall be considered. These decisions are case-specific and should reflect the particular TMDL under consideration.
c. WLAs. The portion of the loading capacity not assigned to nonpoint sources including background, or to an MOS, or reserved for future growth is allocated to point sources. Upon reissuance, NPDES permits for these point sources must include effluent limitations consistent with WLAs in EPA-approved or EPA-established TMDLs.
d. Monitoring. For LAs established on the basis of subsection b.iii above, monitoring data shall be collected and analyzed in order to validate the TMDL's assumptions, to varify anticipated load reductions, to evaluate the effectiveness of controls being used to implement the TMDL, and to revise the WLAs and LAs as necessary to ensure that water quality standards will be achieved within the time-period established in the TMDL.
4.
5.
6.
7.
8.
9.
a.
b.
c.
i. Acceptable available water column data; or
ii. Water column concentrations estimated through use of acceptable available caged or resident fish tissue data; or
iii. Water column concentrations estimated through use of acceptable available or projected pollutant loading data.
d.
i. Commonly accepted statistical techniques shall be used to evaluate data sets consisting of values both above and below the detection level.
ii. When all of the acceptable available data in a data set or category, such as water column, caged or resident fish tissue or pollutant loading data, are below the level of detection for a pollutant, then all the data for that pollutant in that data set shall be assumed to be zero.
10.
11.
C.
1. There shall be no mixing zones available for new discharges of BCCs to the Great Lakes System. WLAs established through TMDLs, WLAs in the absence of TMDLs, and preliminary WLAs for purposes of determining the need for WQBELs for new discharges of BCCs shall be set no higher than the most stringent applicable water quality criteria or values for the BCCs in question. This prohibition takes effect for a Great Lakes State or Tribe on the date EPA approves the State's or Tribe's submission of such prohibition or publishes a notice under 40 CFR 132.5(f) identifying that prohibition as applying to discharges within the State or Federal Tribal reservation.
2. For purposes of section C of procedure 3 of appendix F, new discharges are defined as: (1) A “discharge of pollutants” (as defined in 40 CFR 122.2) to the Great Lakes System from a building, structure, facility, or installation, the construction of which commences after the date the prohibition in section C.1
3. Up until November 15, 2010, mixing zones for BCCs may be allowed for existing discharges to the Great Lakes System pursuant to the procedures specified in sections D and E of this procedure.
4. Except as provided in sections C.5 and C.6 of this procedure, permits issued on or after this provision takes effect in a Great Lakes State or Tribe shall not authorize mixing zones for existing discharges of BCCs to the Great Lakes System after November 15, 2010. After November 15, 2010, WLAs established through TMDLs, WLAs established in the absence of TMDLs, and preliminary WLAs for purposes of determining the need for WQBELs under procedure 5 of appendix F for existing discharges of BCCs to the Great Lakes System shall be equal to the most stringent applicable water quality criteria or values for the BCCs in question.
5.
6.
a. The State or Tribe must determine that:
i. The discharger is in compliance with and will continue to implement, for the BCC in question, all applicable requirements of Clean Water Act sections 118, 301, 302, 303, 304, 306, 307, 401, and 402, including existing National Pollutant Discharge Elimination System (NPDES) water-quality based effluent limitations; and
ii. The discharger has reduced and will continue to reduce the loading of the BCC for which a mixing zone is requested to the maximum extent possible, such that any additional controls or pollution prevention measures to reduce or ultimately eliminate the BCC discharge would result in unreasonable economic effects on the discharger or the affected community because the controls or measures are not feasible or cost-effective.
b. Any mixing zone established pursuant to this section shall:
i. Not result in any less stringent limitations than those existing prior to November 13, 2000;
ii. Be no larger than necessary to account for the technical constraints and economic effects identified pursuant to paragraph C.6.a.ii above;
iii. Meet all applicable acute and chronic aquatic life, wildlife and human health criteria and values within and at the edge of the mixing zone or be consistent with the applicable TMDL or assessment and remediation plan authorized under procedure 3.A.
iv. Be accompanied, as appropriate, by a permit condition requiring the discharger to implement an ambient monitoring plan to ensure compliance with water quality standards and consistency with any applicable TMDL or such other strategy consistent with Section A of this procedure, including the evaluation of alternative means for reducing the BCC from other sources in the watershed; and
v. Be limited to one permit term unless the permitting authority makes a new determination in accordance with this section for each successive permit application in which a mixing zone for the BCC is sought.
c. For each draft NPDES permit that would allow a mixing zone for one or more BCCs after November 15, 2010, the fact sheet or statement of basis for the draft permit that is required to be made available through public notice under 40 CFR 124.6(e) shall:
i. Specify the mixing provisions used in calculating the permit limits; and
ii. Identify each BCC for which a mixing zone is proposed.
7. Any mixing zone authorized under sections C.3, C.5 or C.6 must be consistent with sections D and E of this procedure, as applicable.
D.
1. Individual point source WLAs and preliminary WLAs for purposes of determining the need for WQBELs under procedure 5 of appendix F shall assume no greater dilution than one part effluent to 10 parts receiving water for implementation of numeric and narrative chronic criteria and values (including, but not limited to human cancer criteria, human cancer values, human noncancer values, human noncancer criteria, wildlife criteria, and chronic aquatic life criteria and values) unless an alternative mixing zone is demonstrated as appropriate in a mixing zone demonstration conducted pursuant to section F of this procedure. In no case shall a mixing zone be granted that exceeds the area where discharge-induced mixing occurs.
2. Appropriate mixing zone assumptions to be used in calculating load allocations for nonpoint sources shall be determined, consistent with applicable State or Tribal requirements, on a case-by-case basis.
3. WLAs and preliminary WLAs based on acute aquatic life criteria or values shall not exceed the Final Acute Value (FAV), unless a mixing zone demonstration is conducted and approved pursuant to section F of this procedure. If mixing zones from two or more proximate sources interact or overlap, the combined effect must be evaluated to ensure that applicable criteria and values will be met in the area where acute mixing zones overlap.
4. In no case shall a mixing zone be granted that would likely jeopardize the continued existence of any endangered or threatened species listed under section 4 of the ESA or result in the destruction or adverse modification of such species' critical habitat.
E.
1.
a. The 7-day, 10-year stream design flow (7Q10), or the 4-day, 3-year biologically-based stream design flow for chronic aquatic life criteria or values;
b. The 1-day, 10-year stream design flow (1Q10), for acute aquatic life criteria or values;
c. The harmonic mean flow for human health criteria or values;
d. The 90-day, 10-year flow (90Q10) for wildlife criteria.
e. TMDLs, WLAs in the absence of TMDLs, and preliminary WLAs for the purpose of determining the need for WQBELs calculated using dynamic modelling do not need to incorporate the stream design flows specified in sections E.1.a through E.1.d of this procedure.
2.
3.
a. Scientifically valid field studies or other relevant information demonstrate that degradation of the pollutant is expected to occur under the full range of environmental conditions expected to be encountered;
b. Scientifically valid field studies or other relevant information address other factors that affect the level of pollutants in the water column including, but not limited to, resuspension of sediments, chemical speciation, and biological and chemical transformation.
4.
a. The expected dilution under all effluent flow and concentration conditions at stream design flow;
b. Maintenance of a zone of passage for aquatic organisms; and
c. Protection of critical aquatic habitat.
In no case shall a permitting authority grant a mixing zone that would likely jeopardize the continued existence of any endangered or threatened species listed under section 4 of the ESA or result in the destruction or adverse modification of such species' critical habitat.
5.
F.
1. For purposes of establishing a mixing zone other than as specified in sections D and E above, a mixing zone demonstration must:
a. Describe the amount of dilution occurring at the boundaries of the proposed mixing zone and the size, shape, and location of the area of mixing, including the manner in which diffusion and dispersion occur;
b. For sources discharging to the open waters of the Great Lakes (OWGLs), define the location at which discharge-induced mixing ceases;
c. Document the substrate character and geomorphology within the mixing zone;
d. Show that the mixing zone does not interfere with or block passage of fish or aquatic life;
e. Show that the mixing zone will be allowed only to the extent that the level of the pollutant permitted in the waterbody would not likely jeopardize the continued existence of any endangered or threatened species listed under section 4 of the ESA or result in the destruction or adverse modification of such species' critical habitat;
f. Show that the mixing zone does not extend to drinking water intakes;
g. Show that the mixing zone would not otherwise interfere with the designated or existing uses of the receiving water or downstream waters;
h. Document background water quality concentrations;
i. Show that the mixing zone does not promote undesirable aquatic life or result in a dominance of nuisance species; and
j. Provide that by allowing additional mixing/dilution:
i. Substances will not settle to form objectionable deposits;
ii. Floating debris, oil, scum, and other matter in concentrations that form nuisances will not be produced; and
iii. Objectionable color, odor, taste or turbidity will not be produced.
2. In addition, the mixing zone demonstration shall address the following factors:
a. Whether or not adjacent mixing zones overlap;
b. Whether organisms would be attracted to the area of mixing as a result of the effluent character; and
c. Whether the habitat supports endemic or naturally occurring species.
3. The mixing zone demonstration must be submitted to EPA for approval. Following approval of a mixing zone demonstration consistent with sections F.1 and F.2, adjustment to the dilution ratio specified in section D.1 of this procedure shall be limited to the dilution available in the area where discharger-induced mixing occurs.
4. The mixing zone demonstration shall be based on the assumption that a pollutant does not degrade within the proposed mixing zone, unless:
a. Scientifically valid field studies or other relevant information demonstrate that degradation of the pollutant is expected to occur under the full range of environmental conditions expected to be encountered; and
b. Scientifically valid field studies or other relevant information address other factors that affect the level of pollutants in the water column including, but not limited to, resuspension of sediments, chemical speciation, and biological and chemical transformation.
The Great Lakes States and Tribes shall adopt additivity provisions consistent with (as protective as) this procedure.
A. The Great Lakes States and Tribes shall adopt provisions to protect human health from the potential adverse additive effects from both the noncarcinogenic and carcinogenic components of chemical mixtures in effluents. For the chlorinated dibenzo-p-dioxins (CDDs) and chlorinated dibenzofurans (CDFs) listed in Table 1, potential adverse additive effects in effluents shall be accounted for in accordance with section B of this procedure.
B.
1. The TEFs in Table 1 and BEFs in Table 2 shall be used when calculating a 2,3,7,8-TCDD toxicity equivalence concentration in effluent to be used when implementing both human health noncancer and cancer criteria. The chemical concentration of each CDDs and CDFs in effluent shall be converted to a 2,3,7,8-TCDD toxicity equivalence concentration in effluent by (a) multiplying the chemical concentration of each CDDs and CDFs in the effluent by the appropriate TEF in Table 1 below, (b) multiplying each product from step (a) by the BEF for each CDDs and CDFs in Table 2 below, and (c) adding all final products from step (b). The equation for calculating the 2,3,7,8-TCDD toxicity equivalence concentration in effluent is:
2. The 2,3,7,8-TCDD toxicity equivalence concentration in effluent shall be used when developing waste load allocations under procedure 3, preliminary waste load allocations for purposes of determining reasonable potential under procedure 5, and for purposes of establishing effluent quality limits under procedure 5.
Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) this procedure. If a permitting authority determines that a pollutant is or may be discharged into the Great Lakes System at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any Tier I criterion or Tier II value, the permitting authority shall incorporate a water quality-based effluent limitation (WQBEL) in an NPDES permit for the discharge of that pollutant. When facility-specific effluent monitoring data are available, the permitting authority shall make
A.
1. The permitting authority shall develop preliminary wasteload allocations (WLAs) for the discharge of the pollutant from the point source to protect human health, wildlife, acute aquatic life, and chronic aquatic life, based upon any existing Tier I criteria. Where there is no Tier I criterion nor sufficient data to calculate a Tier I criterion, the permitting authority shall calculate a Tier II value for such pollutant for the protection of human health, and aquatic life and the preliminary WLAs shall be based upon such values. Where there is insufficient data to calculate a Tier II value, the permitting authority shall apply the procedure set forth in section C of this procedure to determine whether data must be generated to calculate a Tier II value.
2. The following provisions in procedure 3 of appendix F shall be used as the basis for determining preliminary WLAs in accordance with section 1 of this procedure: procedure 3.B.9, Background Concentrations of Pollutants; procedure 3.C, Mixing Zones for Bioaccumulative Chemicals of Concern (BCCs), procedures 3.C.1, and 3.C.3 through 3.C.6; procedure 3.D, Deriving TMDLs for Discharges to Lakes (when the receiving water is an open water of the Great Lakes (OWGL), an inland lake or other water of the Great Lakes System with no appreciable flow relative to its volume); procedure 3.E, Deriving TMDLs, WLAs and Preliminary WLAs, and load allocations (LAs) for Discharges to Great Lakes System Tributaries (when the receiving water is a tributary or connecting channel of the Great Lakes that exhibits appreciable flow relative to its volume); and procedure 3.F, Mixing Zone Demonstration Requirements.
3. The permitting authority shall develop PELs consistent with the preliminary WLAs developed pursuant to sections A.1 and A.2 of this procedure, and in accordance with existing State or Tribal procedures for converting WLAs into WQBELs. At a minimum:
a. The PELs based upon criteria and values for the protection of human health and wildlife shall be expressed as monthly limitations;
b. The PELs based upon criteria and values for the protection of aquatic life from chronic effects shall be expressed as either monthly limitations or weekly limitations; and
c. The PELs based upon the criteria and values for the protection of aquatic life from acute effects shall be expressed as daily limitations.
B.
If representative, facility-specific effluent monitoring data samples are available for a pollutant discharged from a point source to the waters of the Great Lakes System, the permitting authority shall apply the following procedures:
1. The permitting authority shall specify the PEQ as the 95 percent confidence level of the 95th percentile based on a log-normal distribution of the effluent concentration; or the maximum observed effluent concentration, whichever is greater. In calculating the PEQ, the permitting authority shall identify the number of effluent samples and the coefficient of variation of the effluent data, obtain the appropriate multiplying factor from Table 1 of procedure 6 of appendix F, and multiply the maximum effluent concentration by that factor. The coefficient of variation of the effluent data shall be calculated as the ratio of the standard deviation of the effluent data divided by the arithmetic average of the effluent data, except that where there are fewer than ten effluent concentration data points the coefficient of variation shall be specified as 0.6. If the PEQ exceeds any of the PELs developed in accordance with section A.3 of this procedure, the permitting authority shall establish a WQBEL in a NPDES permit for such pollutant.
2. In lieu of following the procedures under section B.1 of this procedure, the permitting authority may apply procedures consistent with the following:
a. The permitting authority shall specify the PEQ as the 95th percentile of the distribution of the projected population of daily values of the facility-specific effluent monitoring data projected using a scientifically defensible statistical method that accounts for and captures the long-term daily variability of the effluent quality, accounts for limitations associated with sparse data sets and, unless otherwise shown by the effluent data set, assumes a lognormal distribution of the facility-specific effluent data. If the PEQ exceeds the PEL based on the criteria and values for the protection of aquatic life from acute effects developed in accordance with section A.3 of this procedure, the permitting authority shall establish a WQBEL in an NPDES permit for such pollutant;
b. The permitting authority shall calculate the PEQ as the 95th percentile of the distribution of the projected population of monthly averages of the facility-specific effluent monitoring data using a scientifically defensible statistical method that accounts for and captures the long-term variability of the monthly average effluent quality, accounts for limitations associated with sparse
c. The permitting authority shall calculate the PEQ as the 95th percentile of the distribution of the projected population of weekly averages of the facility-specific effluent monitoring data using a scientifically defensible statistical method that accounts for and captures the long-term variability of the weekly average effluent quality, accounts for limitations associated with sparse data sets and, unless otherwise shown by the effluent data set, assumes a lognormal distribution of the facility-specific effluent data. If the PEQ exceeds the PEL based on criteria and values to protect aquatic life from chronic effects developed in accordance with section A.3 of this procedure, the permitting authority shall establish a WQBEL in an NPDES permit for such pollutant.
C.
1. Except as provided in sections C.2, C.4, or D of this procedure, for each pollutant listed in Table 6 of part 132 that a permittee reports as known or believed to be present in its effluent, and for which pollutant data sufficient to calculate Tier II values for non-cancer human health, acute aquatic life and chronic aquatic life do not exist, the permitting authority shall take the following actions:
a. The permitting authority shall use all available, relevant information, including Quantitative Structure Activity Relationship information and other relevant toxicity information, to estimate ambient screening values for such pollutant which will protect humans from health effects other than cancer, and aquatic life from acute and chronic effects.
b. Using the procedures specified in sections A.1 and A.2 of this procedure, the permitting authority shall develop preliminary WLAs for the discharge of the pollutant from the point source to protect human health, acute aquatic life, and chronic aquatic life, based upon the estimated ambient screening values.
c. The permitting authority shall develop PELs in accordance with section A.3 of this procedure, which are consistent with the preliminary WLAs developed in accordance with section C.1.b of this procedure.
d. The permitting authority shall compare the PEQ developed according to the procedures set forth in section B of this procedure to the PELs developed in accordance with section C.1.c of this procedure. If the PEQ exceeds any of the PELs, the permitting authority shall generate or require the permittee to generate the data necessary to derive Tier II values for noncancer human health, acute aquatic life and chronic aquatic life.
e. The data generated in accordance with section C.1.d of this procedure shall be used in calculating Tier II values as required under section A.1 of this procedure. The calculated Tier II value shall be used in calculating the preliminary WLA and PEL under section A of this procedure, for purposes of determining whether a WQBEL must be included in the permit. If the permitting authority finds that the PEQ exceeds the calculated PEL, a WQBEL for the pollutant or a permit limit on an indicator parameter consistent with 40 CFR 122.44(d)(1)(vi)(C) must be included in the permit.
2. With the exception of bioaccumulative chemicals of concern (BCCs), a permitting authority is not required to apply the procedures set forth in section C.1 of this procedure or include WQBELs to protect aquatic life for any pollutant listed in Table 6 of part 132 discharged by an existing point source into the Great Lakes System, if:
a. There is insufficient data to calculate a Tier I criterion or Tier II value for aquatic life for such pollutant;
b. The permittee has demonstrated through a biological assessment that there are no acute or chronic effects on aquatic life in the receiving water; and
c. The permittee has demonstrated in accordance with procedure 6 of this appendix that the whole effluent does not exhibit acute or chronic toxicity.
3. Nothing in sections C.1 or C.2 of this procedure shall preclude or deny the right of a permitting authority to:
a. Determine, in the absence of the data necessary to derive a Tier II value, that the discharge of the pollutant will cause, have the reasonable potential to cause, or contribute to an excursion above a narrative criterion for water quality; and
b. Incorporate a WQBEL for the pollutant into an NPDES permit.
4. If the permitting authority develops a WQBEL consistent with section C.3 of this procedure, and the permitting authority demonstrates that the WQBEL developed under section C.3 of this procedure is at least as stringent as a WQBEL that would have been based upon the Tier II value or values for that pollutant, the permitting authority shall not be obligated to generate or require the permittee to generate the data necessary to derive a Tier II value or values for that pollutant.
D.
1.
a. Any procedures adopted by a State or Tribe for considering intake pollutants in water quality-based permitting shall be consistent with this section and section E.
b. The determinations under this section and section E shall be made on a pollutant-by-pollutant, outfall-by-outfall, basis.
c. This section and section E apply only in the absence of a TMDL applicable to the discharge prepared by the State or Tribe and approved by EPA, or prepared by EPA pursuant to 40 CFR 130.7(d), or in the absence of an assessment and remediation plan submitted and approved in accordance with procedure 3.A. of appendix F. This section and section E do not alter the permitting authority's obligation under 40 CFR 122.44(d)(vii)(B) to develop effluent limitations consistent with the assumptions and requirements of any available WLA for the discharge, which is part of a TMDL prepared by the State or Tribe and approved by EPA pursuant to 40 CFR 130.7, or prepared by EPA pursuant to 40 CFR 130.7(d).
2.
a. This definition applies to this section and section E of this procedure.
b. An intake pollutant is considered to be from the same body of water as the discharge if the permitting authority finds that the intake pollutant would have reached the vicinity of the outfall point in the receiving water within a reasonable period had it not been removed by the permittee. This finding may be deemed established if:
i. The background concentration of the pollutant in the receiving water (excluding any amount of the pollutant in the facility's discharge) is similar to that in the intake water;
ii. There is a direct hydrological connection between the intake and discharge points; and
iii. Water quality characteristics (e.g., temperature, Ph, hardness) are similar in the intake and receiving waters.
c. The permitting authority may also consider other site-specific factors relevant to the transport and fate of the pollutant to make the finding in a particular case that a pollutant would or would not have reached the vicinity of the outfall point in the receiving water within a reasonable period had it not been removed by the permittee.
d. An intake pollutant from groundwater may be considered to be from the same body of water if the permitting authority determines that the pollutant would have reached the vicinity of the outfall point in the receiving water within a reasonable period had it not been removed by the permittee, except that such a pollutant is not from the same body of water if the groundwater contains the pollutant partially or entirely due to human activity, such as industrial, commercial, or municipal operations, disposed actions, or treatment processes.
e. An intake pollutant is the amount of a pollutant that is present in waters of the United States (including groundwater as provided in section D.2.d of this procedure) at the time it is withdrawn from such waters by the discharger or other facility (e.g., public water supply) supplying the discharger with intake water.
3.
a. The permitting authority may use the procedure described in this section of procedure 5 in lieu of procedures 5.A through C provided the conditions specified below are met.
b. The permitting authority may determine that there is no reasonable potential for the discharge of an identified intake pollutant or pollutant parameter to cause or contribute to an excursion above a narrative or numeric water quality criterion within an applicable water quality standard where a discharger demonstrates to the satisfaction of the permitting authority (based upon information provided in the permit application or other information deemed necessary by the permitting authority) that:
i. The facility withdraws 100 percent of the intake water containing the pollutant from the same body of water into which the discharge is made;
ii. The facility does not contribute any additional mass of the identified intake pollutant to its wastewater;
iii. The facility does not alter the identified intake pollutant chemically or physically in a manner that would cause adverse water quality impacts to occur that would not occur if the pollutants were left in-stream;
iv. The facility does not increase the identified intake pollutant concentration, as defined by the permitting authority, at the edge of the mixing zone, or at the point of discharge if a mixing zone is not allowed, as compared to the pollutant concentration in the intake water, unless the increased concentration does not cause or contribute to an excursion above an applicable water quality standard; and
v. The timing and location of the discharge would not cause adverse water quality impacts to occur that would not occur if the identified intake pollutant were left in-stream.
c. Upon a finding under section D.3.b of this procedure that a pollutant in the discharge does not cause, have the reasonable potential to cause, or contribute to an excursion above an applicable water quality standard, the permitting authority is not required to include a WQBEL for the identified intake pollutant in the facility's permit, provided:
i. The NPDES permit fact sheet or statement of basis includes a specific determination that there is no reasonable potential for the discharge of an identified intake pollutant to cause or contribute to an excursion
ii. The permit requires all influent, effluent, and ambient monitoring necessary to demonstrate that the conditions in section D.3.b of this procedure are maintained during the permit term; and
iii. The permit contains a reopener clause authorizing modification or revocation and reissuance of the permit if new information indicates changes in the conditions in section D.3.b of this procedure.
d. Absent a finding under section D.3.b of this procedure that a pollutant in the discharge does not cause, have the reasonable potential to cause, or contribute to an excursion above an applicable water quality standard, the permitting authority shall use the procedures under sections 5.A through C of this procedure to determine whether a discharge causes, has the reasonable potential to cause, or contribute to an excursion above an applicable narrative or numeric water quality criterion.
E.
1.
2. The requirements of sections D.1-D.2 of this procedure shall also apply to this section.
3.
a. In cases where a facility meets the conditions in sections D.3.b.i and D.3.b.iii through D.3.b.v of this procedure, the permitting authority may establish effluent limitations allowing the facility to discharge a mass and concentration of the pollutant that are no greater than the mass and concentration of the pollutant identified in the facility's intake water (“no net addition limitations”). The permit shall specify how compliance with mass and concentration limitations shall be assessed. No permit may authorize “no net addition limitations” which are effective after March 23, 2007. After that date, WQBELs shall be established in accordance with procedure 5.F.2 of appendix F.
b. Where proper operation and maintenance of a facility's treatment system results in removal of a pollutant, the permitting authority may establish limitations that reflect the lower mass and/or concentration of the pollutant achieved by such treatment, taking into account the feasibility of establishing such limits.
c. For pollutants contained in intake water provided by a water system, the concentration of the intake pollutant shall be determined at the point where the raw water supply is removed from the same body of water, except that it shall be the point where the water enters the water supplier's distribution system where the water treatment system removes any of the identified pollutants from the raw water supply. Mass shall be determined by multiplying the concentration of the pollutant determined in accordance with this paragraph by the volume of the facility's intake flow received from the water system.
4.
5.
F.
1. In addition to the above procedures, effluent limitations shall be established to comply with all other applicable State, Tribal and Federal laws and regulations, including technology-based requirements and antidegradation policies.
2. Once the permitting authority has determined in accordance with this procedure that a WQBEL must be included in an NPDES permit, the permitting authority shall:
a. Rely upon the WLA established for the point source either as part of any TMDL prepared under procedure 3 of this appendix and approved by EPA pursuant to 40 CFR 130.7, or as part of an assessment and remediation plan developed and approved in accordance with procedure 3.A of this appendix, or, in the absence of such TMDL or plan, calculate WLAs for the protection of acute and chronic aquatic life, wildlife and human health consistent with the provisions referenced in section A.1 of this procedure for developing preliminary wasteload allocations, and
b. Develop effluent limitations consistent with these WLAs in accordance with existing State or Tribal procedures for converting WLAs into WQBELs.
3. When determining whether WQBELs are necessary, information from chemical-specific, whole effluent toxicity and biological
4. If the geometric mean of a pollutant in fish tissue samples collected from a waterbody exceeds the tissue basis of a Tier I criterion or Tier II value, after consideration of the variability of the pollutant's bioconcentration and bioaccumulation in fish, each facility that discharges detectable levels of such pollutant to that water has the reasonable potential to cause or contribute to an excursion above a Tier I criteria or a Tier II value and the permitting authority shall establish a WQBEL for such pollutant in the NPDES permit for such facility.
The Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) procedure 6 of appendix F of part 132.
The following definitions apply to this part:
A.
1. A numeric acute WET criterion of 0.3 acute toxic units (TU
2. A numeric chronic WET criterion of one chronic toxicity unit (TU
B.
C.
1. Where a permitting authority determines pursuant to section D of this procedure that the WET of an effluent is or may be discharged at a level that will cause, have the reasonable potential to cause, or contribute to an excursion above any numeric WET criterion or narrative criterion within a State's or Tribe's water quality standards, the permitting authority:
a. Shall (except as provided in section C.1.e of this procedure) establish a water quality-based effluent limitation (WQBEL) or WQBELs for WET consistent with section C.1.b of this procedure;
b. Shall calculate WQBELs pursuant to section C.1.a. of this procedure to ensure attainment of the State's or Tribe's chronic WET criteria under receiving water flow conditions described in procedures 3.E.1.a (or where applicable, with procedure 3.E.1.e) for Great Lakes System tributaries and connecting channels, and with mixing zones no larger than allowed pursuant to section A.2. of this procedure. Shall calculate WQBELs to ensure attainment of the State's or Tribe's acute WET criteria under receiving water flow conditions described in procedure 3.E.1.b (or where applicable, with procedure 3.E.1.e) for Great Lakes System tributaries and connecting channels, with an allowance for mixing zones no greater than specified pursuant to section A.1 of this procedure.
c. May specify in the NPDES permit the conditions under which a permittee would be required to perform a toxicity reduction evaluation.
d. May allow with respect to any WQBEL established pursuant to section C.1.a of this procedure an appropriate schedule of compliance consistent with procedure 9 of appendix F; and
e. May decide on a case-by-case basis that a WQBEL for WET is not necessary if the State's or Tribe's water quality standards do not contain a numeric criterion for WET,
2. Where a permitting authority lacks sufficient information to determine pursuant to section D of this procedure whether the WET of an effluent is or may be discharged at levels that will cause, have the reasonable potential to cause, or contribute to an excursion above any numeric WET criterion or narrative criterion within a State's or Tribe's water quality standards, then the permitting authority should consider including in the NPDES permit appropriate conditions to require generation of additional data and to control toxicity if found, such as:
a. WET testing requirements to generate the data needed to adequately characterize the toxicity of the effluent to aquatic life;
b. Language requiring a permit reopener clause to establish WET limits if any toxicity testing data required pursuant to section C.2.a of this procedure indicate that the WET of an effluent is or may be discharged at levels that will cause, have the reasonable potential to cause, or contribute to an excursion above any numeric WET criterion or narrative criterion within a State's or Tribe's water quality standards.
3. Where sufficient data are available for a permitting authority to determine pursuant to section D of this procedure that the WET of an effluent neither is nor may be discharged at a level that will cause, have the reasonable potential to cause, or contribute to an excursion above any numeric WET criterion or narrative criterion within a State's or Tribe's water quality standards, the permitting authority may include conditions and limitations described in section C.2 of this procedure at its discretion.
D.
1. The permitting authority shall characterize the toxicity of the discharge by:
a. Either averaging or using the maximum of acute toxicity values collected within the same day for each species to represent one daily value. The maximum of all daily values for the most sensitive species tested is used for reasonable potential determinations;
b. Either averaging or using the maximum of chronic toxicity values collected within the same calendar month for each species to represent one monthly value. The maximum of such values, for the most sensitive species tested, is used for reasonable potential determinations:
c. Estimating the toxicity values for the missing endpoint using a default acute-chronic ratio (ACR) of 10, when data exist for either acute WET or chronic WET, but not for both endpoints.
2. The WET of an effluent is or may be discharged at a level that will cause, have the reasonable potential to cause, or contribute to an excursion above any numeric acute WET criterion or numeric interpretation of a narrative criterion within a State's or Tribe's water quality standards, when effluent-specific information demonstrates that:
3. The WET of an effluent is or may be discharged at a level that will cause, have the reasonable potential to cause, or contribute to an excursion above any numeric chronic WET criterion or numeric interpretation of a narrative criterion within a State's or Tribe's water quality standards, when effluent-specific information demonstrates that:
The Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) this procedure.
Whenever a water quality-based effluent limitation (WQBEL) is developed, the WQBEL shall be expressed as both a concentration value and a corresponding mass loading rate.
A. Both mass and concentration limits shall be based on the same permit averaging periods such as daily, weekly, or monthly averages, or in other appropriate permit averaging periods.
B. The mass loading rates shall be calculated using effluent flow rates that are consistent with those used in establishing the WQBELs expressed in concentration.
The Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) this procedure.
When a water quality-based effluent limitation (WQBEL) for a pollutant is calculated to be less than the quantification level:
A.
B.
1. The permitting authority shall specify in the permit the most sensitive, applicable, analytical method, specified in or approved under 40 CFR part 136, or other appropriate method if one is not available under 40 CFR part 136, to be used to monitor for the presence and amount in an effluent of the pollutant for which the WQBEL is established; and shall specify in accordance with section B.2 of this procedure, the quantification level that can be achieved by use of the specified analytical method.
2. The quantification level shall be the minimum level (ML) specified in or approved under 40 CFR part 136 for the method for that pollutant. If no such ML exists, or if the method is not specified or approved under 40 CFR part 136, the quantification level shall be the lowest quantifiable level practicable. The permitting authority may specify a higher quantification level if the permittee demonstrates that a higher quantification level is appropriate because of effluent-specific matrix interference.
3. The permit shall state that, for the purpose of compliance assessment, the analytical method specified in the permit shall be used to monitor the amount of pollutant in an effluent down to the quantification level, provided that the analyst has complied with the specified quality assurance/quality control procedures in the relevant method.
4. The permitting authority shall use applicable State and Tribal procedures to average and account for monitoring data. The permitting authority may specify in the permit the value to be used to interpret sample values below the quantification level.
C.
D.
1. An annual review and semi-annual monitoring of potential sources of the pollutant, which may include fish tissue monitoring and other bio-uptake sampling;
2. Quarterly monitoring for the pollutant in the influent to the wastewater treatment system;
3. Submittal of a control strategy designed to proceed toward the goal of maintaining the effluent below the WQBEL;
4. Implementation of appropriate, cost-effective control measures consistent with the control strategy; and
5. An annual status report that shall be sent to the permitting authority including:
a. All minimization program monitoring results for the previous year;
b. A list of potential sources of the pollutant; and
c. A summary of all action undertaken pursuant to the control strategy.
6. Any information generated as a result of procedure 8.D can be used to support a request for subsequent permit modifications, including revisions to (e.g., more or less frequent monitoring), or removal of the requirements of procedure 8.D, consistent with 40 CFR 122.44, 122.62 and 122.63.
The Great Lakes States and Tribes shall adopt provisions consistent with (as protective as) procedure 9 of appendix F of part 132.
A.
B.
1. Any existing permit that is reissued or modified on or after March 23, 1997 to contain a new or more restrictive WQBEL may allow a reasonable period of time, up to five years from the date of permit issuance or modification, for the permittee to comply with that limit, provided that the Tier I criterion or whole effluent toxicity (WET) criterion was adopted (or, in the case of a narrative criterion, Tier II value, or Tier I criterion derived pursuant to the methodology in appendix A of part 132, was newly derived) after July 1, 1977.
2. When the compliance schedule established under paragraph 1 goes beyond the term of the permit, an interim permit limit effective upon the expiration date shall be included in the permit and addressed in the permit's fact sheet or statement of basis. The administrative record for the permit
3. If a permit establishes a schedule of compliance under paragraph 1 which exceeds one year from the date of permit issuance or modification, the schedule shall set forth interim requirements and dates for their achievement. The time between such interim dates may not exceed one year. If the time necessary for completion of any interim requirement is more than one year and is not readily divisible into stages for completion, the permit shall require, at a minimum, specified dates for annual submission of progress reports on the status of any interim requirements.
C.
1. Whenever a limit (calculated in accordance with Procedure 3) based upon a Tier II value is included in a reissued or modified permit for an existing Great Lakes discharger, the permit may provide a reasonable period of time, up to two years, in which to provide additional studies necessary to develop a Tier I criterion or to modify the Tier II value. In such cases, the permit shall require compliance with the Tier II limitation within a reasonable period of time, no later than five years after permit issuance or modification, and contain a reopener clause.
2. The reopener clause shall authorize permit modifications if specified studies have been completed by the permittee or provided by a third-party during the time allowed to conduct the specified studies, and the permittee or a third-party demonstrates, through such studies, that a revised limit is appropriate. Such a revised limit shall be incorporated through a permit modification and a reasonable time period, up to five years, shall be allowed for compliance. If incorporated prior to the compliance date of the original Tier II limitation, any such revised limit shall not be considered less-stringent for purposes of the anti-backsliding provisions of section 402(o) of the Clean Water Act.
3. If the specified studies have been completed and do not demonstrate that a revised limit is appropriate, the permitting authority may provide a reasonable additional period of time, not to exceed five years with which to achieve compliance with the original effluent limitation.
4. Where a permit is modified to include new or more stringent limitations, on a date within five years of the permit expiration date, such compliance schedules may extend beyond the term of a permit consistent with section B.2 of this procedure.
5. If future studies (other than those conducted under paragraphs 1, 2, or 3 above) result in a Tier II value being changed to a less stringent Tier II value or Tier I criterion, after the effective date of a Tier II-based limit, the existing Tier II-based limit may be revised to be less stringent if:
(a) It complies with sections 402(o) (2) and (3) of the CWA; or,
(b) In non-attainment waters, where the existing Tier II limit was based on procedure 3, the cumulative effect of revised effluent limitation based on procedure 3 of this appendix will assure compliance with water quality standards; or,
(c) In attained waters, the revised effluent limitation complies with the State or Tribes' antidegradation policy and procedures.
Secs. 301(b)(1)(B), 304(d)(1), 304(d)(4), 308, and 501 of the Federal Water Pollution Control Act as amended by the Federal Water Pollution Control Act Amendments of 1972, the Clean Water Act of 1977, and the Municipal Wastewater Treatment Construction Grant Amendments of 1981; 33 U.S.C. 1311(b)(1)(B), 1314(d) (1) and (4), 1318, and 1361; 86 Stat. 816, Pub. L. 92-500; 91 Stat. 1567, Pub. L. 95-217; 95 Stat. 1623, Pub. L. 97-117.
This part provides information on the level of effluent quality attainable through the application of secondary or equivalent treatment.
Terms used in this part are defined as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(1) The BOD
(2) A trickling filter or waste stabilization pond is used as the principal process, and
(3) The treatment works provide significant biological treatment of municipal wastewater.
(h)
(i)
(j)
(k)
(l)
(m)
(n)
The following paragraphs describe the minimum level of effluent quality attainable by secondary treatment in terms of the parameters—BOD
(a)
(1) The 30-day average shall not exceed 30 mg/l.
(2) The 7-day average shall not exceed 45 mg/l.
(3) The 30-day average percent removal shall not be less than 85 percent.
(4) At the option of the NPDES permitting authority, in lieu of the parameter BOD
(i) The 30-day average shall not exceed 25 mg/l.
(ii) The 7-day average shall not exceed 40 mg/l.
(iii) The 30-day average percent removal shall not be less than 85 percent.
(b)
(2) The 7-day average shall not exceed 45 mg/l.
(3) The 30-day average percent removal shall not be less than 85 percent.
(c)
(a)
(b)
(c)
(d)
(e) Less concentrated influent wastewater for combined sewers during dry weather. The Regional Administrator or, if appropriate, the State Director is authorized to substitute either a lower percent removal requirement or a mass loading limit for the percent removal requirements set forth in §§ 133.102(a)(3), 133.102(a)(4)(iii), 133.102(b)(3), 133.105(a)(3), 133.105(b)(3) and 133.105(e)(1)(iii) provided that the permittee satisfactorily demonstrates that: (1) The treatment works is consistently meeting, or will consistently meet, its permit effluent concentration limits, but the percent removal requirements cannot be met due to less concentrated influent wastewater; (2) to meet the percent removal requirements, the treatment works would have to achieve significantly more stringent effluent concentrations than would otherwise be required by the concentration-based standards; and (3) the less concentrated influent wastewater does not result from either excessive infiltration or clear water industrial discharges during dry weather periods. The determination of whether the less concentrated wastewater results from excessive infiltration is discussed in 40 CFR 35.2005(b)(28), plus the additional criterion that either 40 gallons per capita per day (gpcd) or 1500 gallons per inch diameter per mile of sewer (gpdim) may be used as the threshold value for that portion of the dry weather base flow attributed to infiltration. If the less concentrated influent wastewater is the result of clear water industrial discharges, then the treatment works must control such discharges pursuant to 40 CFR part 403.
(a) Sampling and test procedures for pollutants listed in this part shall be in accordance with guidelines promulgated by the Administrator in 40 CFR part 136.
(b) Chemical oxygen demand (COD) or total organic carbon (TOC) may be substituted for BOD
This section describes the minimum level of effluent quality attainable by facilities eligible for treatment equivalent to secondary treatment (§ 133.101(g)) in terms of the parameters—BOD
(a)
(2) The 7-day average shall not exceed 65 mg/l.
(3) The 30-day average percent removal shall not be less than 65 percent.
(b)
(1) The 30-day average shall not exceed 45 mg/l.
(2) The 7-day average shall not exceed 65 mg/l.
(3) The 30-day average percent removal shall not be less than 65 percent.
(c)
(d)
(e)
(1) Where data are available to establish CBOD
(i) The 30-day average shall not exceed 40 mg/l.
(ii) The 7-days average shall not exceed 60 mg/l.
(iii) The 30-day average percent removal shall not be less than 65 percent.
(2) Where data are available, the parameter CBOD
(f)
(2) For new facilities, the permitting authority determines that the 30-day average and 7-day average BOD
Subpart A, issued under Sec. 505, Clean Water Act, as amended 1987; Sec. 504, Pub. L. 100-4; 101 Stat. 7 (33 U.S.C. 1365). Subpart B, issued under Sec. 1449, Safe Drinking Water Act (42 U.S.C. 300j-8).
(a) Section 505(a)(1) of the Clean Water Act (hereinafter the Act) authorizes any person or persons having an interest which is or may be adversely affected to commence a civil action on his own behalf to enforce the Act or to enforce certain requirements promulgated pursuant to the Act. In addition, section 505(c)(3) of the Act provides that, for purposes of protecting the interests of the United States, whenever a citizen enforcement action is brought under section 505(a)(1) of the Act in a court of the United States, the Plaintiff shall serve a copy of the complaint on the Attorney General and the Administrator. Section 505(c)(3) also provides that no consent judgment shall be entered in any citizen action in which the United States is not a party prior to 45 days following the receipt of a copy of the
(b) The purpose of this subpart is to prescribe procedures governing the giving of notice required by section 505(b) of the Act as a prerequisite to the commencing of such actions, and governing the service of complaints and proposed consent judgments as required by section 505(c)(3) of the Act.
(a) Notice of intent to file suit pursuant to section 505(a)(1) of the Act shall be served upon an alleged violator of an effluent standard or limitation under the Act, or an order issued by the Administrator or a State with respect to such a standard or limitation, in the following manner:
(1) If the alleged violator is an individual or corporation, service of notice shall be accomplished by certified mail addressed to, or by personal service upon, the owner or managing agent of the building, plant, installation, vessel, facility, 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 the chief administrative officer of the water pollution control agency for the State in which the 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 agency, service of notice shall be accomplished by certified mail addressed to, or by personal service upon, the head of such agency. A copy of such notice shall be mailed to the chief administrative officer of the water pollution control agency for the State in which the violation is alleged to have occurred, the Administrator of the Environmental Protection Agency, and the Regional Administrator of the Environmental Protection Agency 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 certified mail 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 the Chief administrative officer of the water pollution control agency for the State in which the violation is alleged to have occurred.
(b) Service of notice of intent to file suit pursuant to section 505(a)(2) of the Act shall be accomplished by certified mail 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) Notice given in accordance with the provisions of this subpart shall be deemed to have been served on the postmark date if mailed, or on the date of receipt if served personally.
(a)
(b)
(c)
(a) A citizen plaintiff shall mail a copy of a complaint filed against an alleged violator under section 505(a)(1) of the Act to the Administrator of the Environmental Protection Agency, the Regional Administrator of the EPA Region in which the violations are alleged to have occurred, and the Attorney General of the United States.
(b) The copy so served shall be of a filed, date-stamped complaint, or shall be a conformed copy of the filed complaint which indicates the assigned civil action number, accompanied by a signed statement by the plaintiff or his attorney as to when the complaint was filed.
(c) A citizen plaintiff shall mail a copy of the complaint on the same date on which the plaintiff files the complaint with the court, or as expeditiously thereafter as practicable.
(d) If the alleged violator is a Federal agency, a citizen plaintiff must serve the complaint on the United States in accordance with relevant Federal law and court rules affecting service on defendants, in addition to complying with the service requirements of this subpart.
(a) The citizen plaintiff in a citizen enforcement suit filed against an alleged violator under section 505(a)(1) of the Act shall serve a copy of a proposed consent judgment, signed by all parties to the lawsuit, upon the Administrator, Environmental Protection Agency, Washington, DC 20460, and the Attorney General, Department of Justice, Citizen Suit Coordinator, Room 2615, Washington, DC 20530. The plaintiff shall serve the Administrator and the Attorney General by personal service or by certified mail (return receipt requested.) The plaintiff shall also mail a copy of a proposed consent judgment at the same time to the Regional Administrator of the EPA Region in which the violations were alleged to have occurred.
(b) When the parties in an action in which the United States is not a party file or lodge a proposed consent judgment with the court, the plaintiff shall notify the court of the statutory requirement that the consent judgment shall not be entered prior to 45 days following receipt by both the Administrator and the Attorney General of a copy of the consent judgment.
(1) If the plaintiff knows the dates upon which the Administrator and the Attorney General received copies of the proposed consent judgment, the plaintiff shall so notify the court.
(2) If the plaintiff does not know the date upon which the Administrator and Attorney General received copies of the proposed consent judgment, the plaintiff shall so notify the court, but upon receiving such information regarding the dates of service of the proposed consent judgment upon the Administrator and Attorney General, the plaintiff shall so notify the court of the dates of service.
Section 1449 of the Safe Drinking Water Act (the Act) authorizes any person to commence a civil action to enforce the Act against an alleged violator of any requirements prescribed by or under the Act, or against the Administrator for failure to perform any duty which is not discretionary under the Act. No citizen suit may be commenced prior to sixty days after giving notice of the alleged violation to the Administrator, any alleged violator, and to the State. The purpose of this subpart is to prescribe procedures for giving the notice required by section 1449(b).
(a) Notice of intent to file suit pursuant to section 1449(a)(1) of the Act shall be served in the following manner upon an alleged violator of any requirement prescribed by or under the Act:
(1) If the alleged violator is an individual or corporation, service of notice shall be accomplished by certified mail, return receipt requested, addressed to, or by personal service upon, such individual or corporation. If a public water system or underground injection well is alleged to be in violation, service shall be upon the owner or operator. A copy of the notice shall be sent by certified mail, return receipt requested, 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 chief administrative officer of the responsible state agency (if any), and the Attorney General for the State in which the violation is alleged to have occurred. If the alleged violator is a corporation, a copy of the notice shall also be sent by certified mail, return receipt requested, to the registered agent (if any) of the corporation in the State in which the violation is alleged to have occurred.
(2) If the alleged violator is a State or local agency, service of notice shall be accomplished by certified mail, return receipt requested, addressed to, or by personal service upon, the head of such agency. A copy of the notice shall be sent by certified mail, return receipt requested, to the Administrator of the Environmental Protection Agency, the Regional Administrator of the Environmental Protection Agency for the region in which the violation is alleged to have occurred, the chief administrative officer of the responsible state agency (if any), and the Attorney General for the State in which the violation is alleged to have occurred.
(3) If the alleged violator is a Federal agency, service of notice shall be accomplished by certified mail, return receipt requested, addressed to, or by personal service upon, the head of the Federal agency. A copy of the notice shall be sent by certified mail, return receipt requested, to the Administrator of the Environmental Protection Agency, the Regional Administrator of the Environmental Protection Agency for the region in which the violation is alleged to have occurred, the Attorney General of the United States, the chief administrative officer of the responsible state agency (if any), and the Attorney General for the State in which the violation is alleged to have occurred.
(b) Service of notice of intent to file suit pursuant to section 1449(a)(2) of the Act shall be accomplished by certified mail, return receipt requested, addressed to, or by personal service upon, the Administrator of the Environmental Protection Agency, Washington, DC 20460. A copy of the notice shall be sent by certified mail to the Attorney General of the United States.
(c) Notice given in accordance with the provisions of this subpart shall be deemed to have been given on the date of receipt of service, if served personally. If service was accomplished by mail, the date of receipt will be considered to be the date noted on the return receipt card.
(a)
(b)
(c)
No action may be commenced under section 1449(a)(1) or (a)(2) until the plaintiff has given each of the appropriate parties sixty days notice of intent to file such an action. Actions concerning injection wells disposing of hazardous waste which allege jurisdiction solely under section 7002(c) of the Resource Conservation and Recovery Act may proceed immediately after notice to the appropriate parties.