40
Parts 100 to 135
Revised as of July 1,2004
Protection of Environment
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40
Parts 100 to 135
Revised as of July 1, 2004
Protection of
Environment
Containing a codification of documents
of general applicability and future effect
As of July 1, 2()(H
With Audi Ictries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
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Table of Contents
Page
Explanati on v
Title 40:
Chapter I—Environmental Protection Agency (Continued) 3
Finding Aids:
Material Approved for Incorporation by Reference 519
Table of CFR Titles and Chapters 521
Alphabetical List of Agencies Appearmtr in the CFR 539
List of CFR Sections Affected 549
111
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section num-
ber. Thus, 40 CFR 100.1
refers to title 40, part
100, section 1.
IV
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Explanation
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THIS TITLE
Title 40—PROTECTION OF ENVIRONMENT is composed of twenty-nine volumes.
The parts in these volumes are arranged in the following order: parts 1 49. parts
50-51, part 52 (52.01-52.1018), part 52 (52.1019-End), parts 5$-59. part 60 (60.1-End).
part 60 (Appendices), parts 61-62, part 63 (63.1-63.599). part 63 (63.600-1-63.1199). part
63 (63.1200-63.1439). part 63 (63.1440-End) parts 64-71. parts 72-80. parts 81-85. part
86 (86.1-86.599-99) part 86 (86,600-1-Endi. parts 87-99, parts 100-135. parts 136-149.
parts 150-489. parts 190-259, parts 260-265. parts 266-299, parts 300-399. parts 400-
424. parts 425-699, parts 700-789, and part 790 to End. The contents of these volumes
represent all current regulations codified under this title of the CPR as of July
1. 2004.
Chapter I—Environmental Protection Agency appears in all twenty-eight vol-
umes. An alphabetical Listing of Pesticide Chemicals Index appears in parts ISO-
IBS. Regulations issued by the Council on Environmental Quality appear in the
volume containing part 790 to End. The OMB control numbers for title 40 appear
in §9.1 of this chapter.
For this volume. Elmer Barksdale was Chief Editor. The Code of Federal Regu-
lations publication program is under the direction of Prances D. McDonald, as-
sisted bv Alomha S, Morris.
IX
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Title 40—Protection of
Environment
(This book contains parts 100 to 135 >
Part
CHAPTER I—Environmental Protection Agency (Continued) 104
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CHAPTER I—ENVIRONMENTAL PROTECTION
AGENCY (CONTINUED)
EDITORIAL NOTE: Nomenclature change:-' to chapter I appear at FR 47324. 47325, Aug. 2,
2000: 66 PR 84375, 34376. June 28. 2001.
SUBCHAPTER D—WATER PROGRAMS
Part Page
100 [Reserved]
104 Public hearings on effluent standards for toxic pol-
lutants 5
105 Recognition awards under the Clean Water Act ..... 11
108 Employee protection hearings 14
109 Criteria for State, local and regional oil removal
contingency plans 15
110 Discharge of oil .. , 17
112 Oil pollution prevention 19
113 Liability limits for small onshore storage facilities 106
116 Designation of hazardous substances 108
117 Determination of reportable quantities for haz-
ardous substances 118
121 State certification of activities requiring a Federal
license or permit 126
122 EPA administered permit programs: The national
pollutant discharge elimination system 131
123 State program requirements , 240
124 Procedures for decisionmaking 268
125 Criteria and standards for the national pollutant
discharge elimination system , 295
129 Toxic pollutant effluent standards 339
130 Water quality planning and management 349
131 Water quality standards , 364
132 Water quality guidance for the Great Lakes Sys-
tem 445
133 Secondary treatment regulation 508
135 Prior notice of citizen suits 512
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SUBCHAPTER D—WATER PROGRAMS
PART 100 [RESERVED]
PART 104—PUBLIC HEARINGS ON
EFFLUENT STANDARDS FOR TOXIC
POLLUTANTS
Sec.
104.1 Applicability.
104.2 Definitions.
104.3 Notice of hearing": objection: public
comment.
104.4 Statement of basis and purpose.
104.5 Docket and record.
104.6 Designation of Presiding' Officer.
104.7 Powers of Presiding" Officer.
104.8 Prehearing' conferences.
104.9 Admission of evidence.
104.10 Hearing'procedures.
104.11 Briefs and finding's of fact.
104.12 Certification of record.
104.13 Interlocutory and post-hearing re-
view of rulings of the Presiding Officer:
motions.
104.14 Tentative and final decision by the
Administrator.
104.15 Promulgation of standards.
104.16 Filing- and time.
AUTHORITY: Sees. 501 and 3Q7(a> of the Fed-
eral Water Pollution Control Act. as amend-
ed (33 U.S.C. 1251 et spg.. Pub. L. 92-500. 86
Stat, 816),
SOfHCE: 41 FR 17902. Apr. 29. 1976, unless
otherwise noted.
§ 104.1 Applicability.
This part shall be applicable to hear-
ings required by statute to "be held in
connection with the establishment of
toxic pollutant effluent standards
under section 307(a) of the Act.
§ 104.2 Definitions,
As used in this part, the term:
(a) Act means the Federal Water Pol-
lution Control Act, as amended. 33
U.S.C. 1251 et seq.. Public Law 92-500. 86
Stat. 816.
(b) Administrator means the Adminis-
trator of the Environmental Protection
Agency, or any employee of the Agency
to whom the Administrator may by
order delegate his authority to carry
out his functions under section 307(a)
of the Act, or any person who shall by
operation of law be authorized to carry
out such functions.
(O Agency means the Environmental
Protection Agency.
ids Hearing Clerk means the Hearing
Clerk. U.S. Environmental Protection
Agency. 401 M Street SW., Washing-ton.
DC 20460.
ie) Party means the Environmental
Protection Agency as the proponent of
an effluent standard or standards, and
any person who files? an objection pur-
suant to §104.3 hereof.
if) Person means an individual, cor-
poration, partnership. association.
state, municipality or other political
subdivision of a state, or any interstate
body.
of the Act.
(h) Presiding Officer means the Chief
Administrative Law Judge of the Agen-
cy or a person designated by the Chief
Administrative Law Judge or by the
Administrator to preside at a hearing
under this part, in accordance with
§ 104.6 hereof.
§ 104.3 Notice of hearing; objection;
public comment.
(a! Notice of hearing. Whenever the
Administrator publishes any proposed
effluent standard, he shall simulta-
neously publish a notice of a public
hearing to be held within thirty days
following the date of publication of the
proposed standard. Any person who has
any objection to a proposed standard
may file with the hearing clerk a con-
cise statement of any such objection.
No person may participate in the hear-
ing- on the proposed toxic pollutant ef-
fluent standards unless the hearing
clerk has received within 25 days of the
publication of the notice of the pro-
posed standards a statement of objec-
tion as herein described. In exceptional
circumstances and for good cause
shown the Presiding Officer may allow
an objection to be filed after the filing
deadline prescribed in the preceding-
sentence, which good cause must in-
clude at a minimum lack of actual no-
tice on the part of the objector or any
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§104.4
40 CFR Ch. I (7-1-04 Edition)
representative of such objector of the
proposed standards despite his exercise
of due diligence, so long as such later
filing will not cause undue delay in the
proceedings or prejudice to any of the
parties.
(b) Objections, Any objection to a pro-
posed standard which is filed pursuant
to paragraph (a) of this section shall
meet the following requirements:
(1) It shall be filed in triplicate with
the hearing clerk within the time pre-
scribed in paragraph (a) of this section;
(2) It shall state concisely and with
particularity each portion of the pro-
posed 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 objec-
tor'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 ref-
erence to any pertinent scientific data
or authority in support thereof.
Any objection which fails to comply
with the foregoing provisions shall not
be accepted for filing. The Presiding
Officer shall promptly notify any per-
son whose objection is not accepted for
any of the reasons set forth in this sec-
tion, stating the reasons therefor.
(c) Data in support of objection or modi-
fication. In the event that the time pre-
scribed for filing objections pursuant
to paragraphs (a) and (b) of this section
is insufficient to permit an objecting
party to fully set forth with such ob-
jection the basis therefor together with
the information and data specified in
paragraph (b)(3) of this section, he may
so state at the time of the filing of
such objection, and file a more com-
plete statement of such basis, informa-
tion, and data (hereinafter referred to
as "supplemental data") within the
time prescribed by this paragraph (c).
The supplemental data herein de-
scribed shall be filed not later than 40
days following publication of the pro-
posed effluent standards.
(d) Public comment. The notice re-
quired under paragraph (a) of this sec-
tion shall also provide for the submis-
sion to the Agency of written com-
ments on the proposed rulemaking by
interested persons not filing objections
pursuant to this section as herelnabove
described, and hence not participating
in the hearing as parties. The notice
shall fix a time deadline for the sub-
mission of such comments which shall
be not later than the date set for com-
mencement of the hearing. Such com-
ments shall be received in evidence at
the commencement of the hearing. The
Administrator in making any decision
based upon the record shall take into
account the unavailability of cross-ex-
amination in determining the weight
to be accorded such comments.
(e5 Promulgation in absence of objec-
tion. If no objection is filed pursuant to
this section, then the Administrator
shall promulgate the final standards on
the basis of the Agency's statement of
basis and purpose and any public com-
ments received pursuant to paragraph
id) of this section.
§ 104,4 Statement of basis and purpose.
Whenever the Administrator pub-
lishes a proposed effluent standard, the
notice thereof published in the FED-
ERAL REGISTER shall include a state-
ment of the basis and purpose of the
standard or a summary thereof. This
statement shall include:
(a) The purpose of the proposed
standard:
tb> An explanation of how the pro-
posed standard was derived;
(c) Scientific and technical data and
studies supporting the proposed stand-
ard or references thereto if the mate-
rials are published or otherwise readily
available: and
(d) Such other information as may be
reasonably required to set forth fully
the basis of the standard.
Where the notice of the proposed rule-
making summarizes the full statement
of basis and purpose, or incorporates
documents by reference, the documents
thus summarized or incorporated by
reference shall thereupon be made
available by the Agency for inspection
and copying by any interested person.
S 104.5 Docket and record.
Whenever the Administrator pub-
lishes a notice of hearing under this
part, the hearing clerk shall promptly
establish a docket for the hearing. The
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Environmental Protection Agency
§104.6
docket shall include all written objec-
tions filed by any party, any public
comments received pursuant to
§ 104.3(.d). a verbatim transcript of the
hearing, the statement of basis and
purpose required by §104.4, and any
supporting documents referred to
therein, and other documents of exhib-
its that may be received in evidence or
marked for identification by or at the
direction of the Presiding Officer, or
filed by any party in connection with
the hearing. Copies of documents in the
docket shall be available to any person
upon payment to the Agency of such
charges as the Agency may prescribe to
cover the costs of duplication. The ma-
terials contained in the docket shall
constitute the record.
§104.6 Designation of Presiding Offi-
cer.
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 unavail-
ability of any such Administrative Law
Judge, the Administrator may des-
ignate a Presiding Officer. No person
who has any personal pecuniary inter-
est in the outcome of a proceeding
under this part, or who has partici-
pated in the development or enforce-
ment of any standard or proposed
standard at issue in a proceeding here-
under, shall serve as Presiding Officer
in such proceeding.
§ 104.7 Powers of Presiding Officer,
The Presiding Officer shall have the
duty to conduct a fair hearing within
the time constraints imposed by sec-
tion 307(a) of the Act. He shall take all
necessary action to avoid delay and to
maintain order. He shall have all pow-
ers 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 wit-
nesses;
(d) Admit or exclude evidence; and
(e) Require any part or all of the evi-
dence to be submitted in writing and
by a certain date.
§ 104.8 Prehearing conferences,
Prehearing conferences are encour-
aged for the purposes of simplification
of issues, identification and scheduling
of evidence and witnesses, the estab-
lishment 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 pro-
posal of standards hereunder shall, di-
rect 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 limi-
tation:
(1) Consideration and simplification
of any issues of law or fact;
(2) Identification, advance submis-
sion, marking for identification, con-
sideration of any objections to admis-
sion, 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 ex-
pected testimony;
(5) Scheduling of witnesses where
practicable, and limitation of the num-
ber of witnesses where appropriate in
order to avoid delay or repetition;
(6) If desirable, the segregation of the
hearing into separate segments for dif-
ferent provisions of the proposed efflu-
ent standards and the establishment of
separate service lists;
(7) Encouragement of objecting par-
ties to agree upon and designate lead
counsel for objectors with common in-
terests so as to avoid repetitious ques-
tioning of witnesses.
(b) The Presiding Officer may. fol-
lowing a prehearing conference, issue
an order setting forth the agreements
reached by the parties or representa-
tives, 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 docu-
ments 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 wit-
ness, his curriculum vitae. and may
contain such other directions as may
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§104.9
40 CFR Ch. 1 (7-1-04 Edition)
be appropriate to facilitate the pro-
ceedings.
§ 104.9 Admission of evidence.
(a) Where the Presiding Officer has
directed identification of witnesses and
production of documentation evidence
by a certain date, the Presiding Officer
may exclude any such evidence, or
refuse to allow any witness to testify,
when the witness was not identified or
the document was not served by the
time set by the Presiding- Officer. Any
such direction with respect to a party's
case in chief shall not preclude the use
of such evidence or testimony on rebut-
tal or response, or upon a showing' sat-
isfactory 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 Pre-
siding Officer may require direct testi-
mony to be in writing under oath and
served by a certain date, and may ex-
clude testimony not so served.
(b) At the first prehearing con-
ference, or at another time before the
beginning- of the taking of oral testi-
mony to be set by the Presiding Offi-
cer, the statement of basis and pur-
pose, together with any publications or
reference materials cited therein, ex-
cept where excluded by stipulation,
shall be received in evidence.
(c) The Presiding Officer may exclude
evidence which is immaterial, irrele-
vant, unduly repetitious or cumulative,
or would involve undue delay, or
which, if hearsay, is not of the sort
upon which responsible persons are ac-
customed 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 Pre-
siding 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 docu-
mentary evidence, including but not
limited to affidavits, published arti-
cles, and official documents, regardless
of the availability of the affiant or au-
thor for cross-examination, may be ad-
mitted in evidence, subject to the pro-
visions of paragraphs (a), (cl. and (d) of
this section. The availability or non-
availability of cross-examination shall
be considered as affecting the weight to
be accorded such evidence in any deci-
sion based upon the record.
(E?) Official notice may be taken by
the Presiding Officer or the Adminis-
trator of any matter which could be ju-
dicially 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 oppor-
tunity to show the contrary.
§ 104.10 Hearing procedures.
ta) Following the admission in evi-
dence of the materials described in
§104,9(1)). the Agency shall have the
right at the commencement of the
hearing to supplement that evidence or
to introduce additional relevant evi-
dence. Thereafter the evidence of each
objector shall be presented in support
of its objection and any proposed modi-
fication. The Agency staff shall then be
given an opportunity to rebut or re-
spond 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 pro-
posed standards. In the event that evi-
dence which tends to support such
other standard or standards is offered
and received in evidence, then the ob-
jectors 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.
(cs Where necessary in order to pre-
vent undue prolongation of the hear-
ing, or to comply with time limitations
set forth in the Act, the Presiding Offi-
cer may limit the number of witnesses
who may testify, and the scope and ex-
tent of cross-examination.
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Environmental Protection Agency
§104,13
(d) A verbatim transcript of the hear-
ing shall be maintained and shall con-
stitute 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 brief-
ly 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 with-
draw his objection to a proposed efflu-
ent standard.
$ 104.11 Briefs and findings of fact.
At the conclusion of the hearing, the
Presiding Officer shall set a schedule
for the submission by the parties of
briefs and proposed findings of fact and
conclusions. In establishing the afore-
said time schedule, the Presiding Offi-
cer shall consider the time constraints
placed upon the parties and the Admin-
istrator by the statutory deadlines.
§ 104.12 Certification of record.
As soon as possible after the hearing.
the Presiding Officer shall transmit to
the hearing clerk the transcript of the
testimony and exhibits introduced in
the hearing. The Presiding Officer shall
attach to the original transcript his
certificate stating that, to the best of
his knowledge and belief, the tran-
script is a true transcript of the testi-
mony 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.
§ 104.13 Interlocutory and post-hear-
ing review of rulings of the
Presiding Officer; motions.
(a) The Presiding Officer may certify
a ruling for interlocutory review by the
Administrator where a party so re-
quests and the Presiding Officer con-
cludes that (1) the ruling from which
review is sought involves an important
question as to which there is substan-
tial 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
iii) a ruling1 on the question by the Ad-
ministrator would be of material as-
sistance 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 con-
sider the ruling which has been cer-
tified.
(b) Where the Presiding Officer de-
clines 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 (as of this section. An appli-
cation for review shall be in writing
and shall briefly state the grounds re-
lied 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 con-
sideration by the Administrator of any
ruling or request, for interlocutory re-
view.
(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 fil-
ing of the application for review.
(e) Failure to request or obtain inter-
locutory 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 proce-
dural ruling, or any ruling made by the
Presiding Officer concerning the ad-
mission 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 de-
termines that evidence was improperly
excluded, he may order its admission
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§104.14
40 CFR Ch. I (7-1-04 Edition)
without remand for further pro-
ceedings, or may remand with such in-
structions as he deems appropriate
concerning cross-examination, or op-
portunity for any party to submit fur-
ther evidence, with respect to such evi-
dence as he directs should be admitted.
In making his determination whether
to remand, the Administrator shall
consider whether the statutory time
restraints permit a remand, and wheth-
er it would be constructive to allow
cross-examination or further evidence
with respect to the newly admitted evi-
dence. If evidence is admitted without
cross-examination, the Administrator
shall consider the lack of opportunity
for cross-examination in determining
the weight to "be given such evidence.
(g) Motions shall be brief, in writing,
and may be filed at any time following
the publication of the proposed effluent
standards, unless otherwise ordered by
the Presiding Officer or the Adminis-
trator. 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.
8104,14 Tentative and final decision
by the Administrator.
(a) As soon as practicable following"
the certification of the record and the
filing by the parties of briefs and pro-
posed finding's of fact and conclusions
under §104.11, the Administrator, with
such staff assistance as he deems nec-
essary and appropriate, shall review
the entire record and prepare and file a
tentative decision based thereon. The
tentative decision shall include find-
ings 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 rep-
resentative.
(b) Upon filing of the tentative deci-
sion, 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 pro-
posed changes in the tentative deci-
sion. Such materials shall, upon sub-
mission, become part of the record. As
soon as practicable after the filing
thereof the Administrator shall pre-
pare and file a final decision, copies of
which shall be transmitted to the par-
ties or their representatives in the
manner prescribed in paragraph (a) of
this section.
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Environmental Protection Agency
§105.2
the hearing clerk, if it is filed during
the course of the hearing, shall be also
filed with the Presiding Officer. A copy
of each document or paper filed by any
party with the Presiding Officer, with
the hearing clerk, or with the Adminis-
trator shall be served upon all other
parties, except to the extent that the
list of parties to be so served may be
modified by order of the Presiding Offi-
cer, and each such document or paper
shall be accompanied by a certificate
of such service.
(b) A party may "be represented in
any proceeding under this part by an
attorney or other authorized represent-
ative. 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 rep-
resentative.
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 post-
marked, or in the case of papers deliv-
ered other than by mail, when received
by the hearing clerk.
(d) Sundays and legal holidays shall
be included in computing the time al-
lowed 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 in-
clude the next following business day,
PART 105—RECOGNITION AWARDS
UNDER THE CLEAN WATER ACT
GKXEKAI.
105.1 Background.
105.2 Definitions.
105.3 Title.
ELIGIBILITY RKWIKKMKXTS
105.4 What are the requirements for the
Awards Program'?
105.5 Who is eligible to win an award?
105.6 What are the Awards Program cat-
egories for which. I may be eligiMe0
APPLICATION AND NOMINATION FROCKS*
105.7 How do I apply for an award?
105.8 When can I apply for an award'
105,9 How can I get nominated for an award?
SELECTION CRITKHIA
105.10 What do I need to be considered for
an award?
105.11 Who selects the award winners?
105.12 How is the awards review committee
selected?
105.13 How are the awards winners selected1'
105.14 How are award winners notified?
105.15 How- are award winners recognized?
105,16 How are award winners publicized?
AiTHOKJ'n: Section 501ta) and (et of the
Clean Water Ac! (CWA). 33 U.S.C. 1361(a) and
!P).
S(>i,m:K: fi" FR 61-12. Feb. 8, 2002. unless
otherwise noted.
GKXKRAL
S 105.1 Background.
The Environmental Protection Agen-
cy's (EPA) Clean Water Act (CWA) Rec-
ognition Awards Program is authorized
by CWA section 501(es. The Adminis-
trator may provide official recognition
to industrial organizations and polit-
ical subdivisions of States which dur-
ing the preceding year demonstrated
an outstanding technological achieve-
ment or an innovative process, method
or device in their waste treatment and
pollution abatement programs. The
wastewater management programs can
generally he characterized as waste
treatment and or pollution abatement
programs. Individual EPA Regional Ad-
ministrators (and Regional officials
they may designate) also may conduct
Regional CWA Recognition Awards
Programs according to and consistent
with the provisions of this part.
S 105.2 Definitions.
Applicant means the person author-
ized to complete the application on "be-
half of an industrial organization or
political subdivision of States.
Application means a completed ques-
tionnaire, nomination form, or other
documentation submitted to or by the
States. EPA Regions or headquarters
for consideration of a national CWA
Recognition Award.
/ means the applicant for an award.
Industrial organisation means any
company. corporation, association,
partnership, firm, university, not-for-
profit organization. or wastewater
11
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§105.3
40 CFR Ch. I (7-1-04 Edition)
treatment facility, as well as a Fed-
eral, State or Tribal government
wastewater treatment facility, or U.S.
military command to the extent such
government and other organizations
operate in an "industrial" capacity in
the treatment of wastes or abatement
of pollution.
Nominee means a candidate rec-
ommended by the State or Tribe or
EPA for consideration for a CWA Rec-
ognition Award,
Political subdivision of State means a
municipality, city, town, borough.
county, parish, district, association, or
other public body (including an inter-
municipal agency of two or more of the
foregoing entities) created by or pursu-
ant to State law.
State means any of the 50 States, the
District of Columbia, the Common-
wealth of Puerto Rico, the U.S. Virgin
Islands, Guam. American Samoa, and
the Commonwealth of Northern Mar-
iana Islands.
State water pollution control agency
means the State agency designated by
the Governing Authority having re-
sponsibility for enforcing State laws
relating to the abatement of water pol-
lution.
You means the applicant for an
award.
§105.3 Title.
The awards are known as the Na-
tional Clean Water Act Recognition
Awards (hereinafter, the Awards Pro-
gram).
ELIGIBILITY RKQuiRKMENTb
§ 105.4 What are the requirements for
the Awards Program?
(a) EPA will administer the Awards
Program, and should establish annual
guidance as necessary to administer
the Awards Program. EPA will request
from the various offices, and States
and Tribes as appropriate, nominations
for the Awards Program.
(b) Nominees must be in total com-
pliance with all applicable water qual-
ity 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 treat-
ment and/or pollution abatement pro-
grams.
(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 Pro-
tection Agency, Municipal Assistance
Branch. 1200 Pennsylvania Avenue.
NW.. Mail Code 4204^M. Washington.
DC 20460. You may also visit BPA's
Web site at www.epa.gov/owm.
§ 105,5 Who is eligible to win an
award?
A municipality, city, town, borough,
county, parish, district, association,
government agency, or other public
body, (including an intermunicipal
agency of two or more of the foregoing
entities) created by or pursuant to
State law; a company, corporation, as-
sociation, partnership, firm, univer-
sity, not-for-profit organization, or
wastewater treatment facility, as well
as a Federal. State or Tribal govern-
ment wastewater treatment facility, or
U.S. military command to the extent
such government and other organiza-
tions operate in an industrial capacity
in the treatment of wastes or abate-
ment of pollution may be considered
for a recognition award,
S 105.6 What are the Awards Program
categories for which I may be eligi-
ble?
EPA will publish from time to time,
a notice in the FEDERAL REGISTER an-
nouncing the current Awards Program
categories. EPA also may subsequently
discontinue, combine, or rename cat-
egories by notice published in the FED-
ERAL REGISTER.
APPLICATION AND NOMINATION PROCESS
S 105.7 How do I apply for an award?
You may contact your local EPA Re-
gional office for information on the
Awards Program guidance each year.
or check the Web site at http://
wiew.epa.gov/oiom/intnet.htm. EPA may
use an application or nomination proc-
ess, as appropriate for the program or
Region.
12
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Environmental Protection Agency
§105,16
§ 105.8 When can I apply for an award?
You can contact your local EPA Re-
gional office for award submission
deadline information which may vary
for the award categories, or check the
Web site at http:.-/www.epa.gor owm
in (net.htm.
§ 105.9 How can I get nominated for an
award?
You may apply to. or ask your State,
Tribe or EPA Region to nominate you
for an award. Only applications or
nominations recommended by EPA Re-
gions are considered for the national
award. EPA personnel conduct compli-
ance evaluations prior to presenting a
national award.
KKLECTIUN CRITERIA
§105.10 What do I need to be consid-
ered for an award?
Your facility or pollution abatement
program, must be in total compliance
with all applicable water quality re-
quirements, and otherwise have a satis-
factory record with respect to environ-
mental quality. Additionally, your fa-
cility or pollution abatement program
must provide written documentation as
evidence of an outstanding techno-
logical achievement or an innovative
process, method or device dem-
onstrated in the preceding year, which
resulted in environmental benefits.
cost saving's and/or public acceptance.
§103,11 Who selects the award win-
ners?
After EPA receives the completed ap-
plication, the application is evaluated
by a review committee. After the re-
view committee completes its evalua-
tion of the programs that have been
nominated, they make recommenda-
tions for the national awards. EPA
then analyzes the results and selects
the award winners.
§ 105.12 How is the awards review
committee selected?
EPA review committee members are
selected by the EPA and in some cases.
State or Tribal water pollution control
agencies. The number of participants
in a nominations review process is
based on staff availability, and may be
one person.
§ 105.13 How are the award winners
selected?
Nominees and applications are rec-
ommended by EPA regions. EPA per-
sonnel conduct compliance evaluations
prior to presenting a national award.
EPA selects national award winners
!>ased on demonstrated evidence of out-
•itanding and or innovative wastewaler
! reatment and pollution abatement
programs or projects which result, in
environmental benefits, cost saving*
and or public acceptance, Based upon
results of review committee evalua-
: ions, tht- Ayency selects first place
winners for a national award in the ap-
propriate awards categories, A second
place winner may or may not be se-
lected. EPA may or may not select an
award winner for every awards pro-
gram category. Award decisions are
not subject to administrative review.
AWARDS RKCOGNTITOX
4103.14 How are award winners noti-
fied?
EPA notifies national award winners
by letter.
§ 103,15 How are award winners recog-
nized?
B]PA presents national award winners
with a certificate or plaque at an
awards presentation ceremony as rec-
ognition for an outstanding techno-
logical achievement or an innovative
process, method or device in waste-
water treatment and'or pollution
abatement programs. The President of
the United States, the Governor of the
State, or Tribal leader of the jurisdic-
tion 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.
S 105.16 How are award winners pub-
licized?
EPA announces the annual national
recognition award winners through no-
tice published in the FEDERAL REG-
ISTER.
13
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Pt 108
40 CFR Ch. i (7-1-04 Edition)
PART 108—EMPLOYEE PROTECTION
HEARINGS
Sec.
108.1 Applicability.
108.2 Definitions.
108.3 Request for investigation.
108.4 Investigation by Regional Adminis-
trator.
108.5 Procedure.
108.6 Recommendations.
108.7 Hearing' "before Administrator.
AUTHORITY: See. 507(ei, Pub. L. 92-500. 86
Stat. 816 (33 U.S.C. 1251 et aeq.).
SOURCE: 39 FE 15398. MAY 3. 1974. unless
otherwise noted.
§ 108.1 Applicability.
This part shall be applicable to inves-
tigations and hearings required by sec-
tion 507(e) of the Federal Water Pollu-
tion Control Act. as amended. 33 LT.S.C.
1251 et seq. (Pub. L. 92-500).
§ 108.2 Definitions.
As used in this part, the term:
(a) Act means the Federal Water Pol-
lution Control Act, as amended;
Cb> Effluent limitation means any ef-
fluent limitation which is established
as a condition of a permit issued or
proposed to be issued by a State or by
the Environmental Protection Agency
pursuant to section 402 of the Act; any
toxic or pretreatment effluent standard
established under section 307 of the
Act; any standard of performance es-
tablished under section 306 of the Act;
and any effluent limitation established
under section 302. section 316. or sec-
tion 318 of the Act.
(c) Order means any order issued by
the Administrator under section 309 of
the Act; any order issued by a State to
secure compliance with a permit, or
condition thereof, issued under a pro-
gram approved pursuant to section 402
of the Act; or any order issued by a
court in an action brought pursuant to
section 309 or section 505 of the Act.
(d) Party means an employee filing a
request under §108.3. any employee
similarly situated, the employer of any
such employee, and the Regional Ad-
ministrator or his designee.
(e) Administrator or Regional Adminis-
trator means the Administrator or a
Regional Administrator of the Envi-
ronmental Protection Agency.
§ 108.3 Request for investigation.
Any employee who is discharged or
laid-off. threatened with discharge or
lay-off, or otherwise discriminated
against by any person because of the
alleged results of any effluent limita-
tion or order issued under the Act, or
any representative of such employee.
may submit a request for an investiga-
tion under this part to the Regional
Administrator of the region in which
such discrimination is alleged to have
occurred.
§ 108.4 Investigation by Regional Ad-
ministrator,
Upon receipt of any request meeting
the requirements of §108.3, the Re-
gional Administrator shall conduct a
full investigation of the matter, in
order to determine whether the request
may be related to an effluent limita-
tion or order under the Act. Following
the investigation, the Regional Admin-
istrator shall notify the employee re-
questing the investigation (or the em-
ployee's representative) and the em-
ployer of such employee, in writing, of
his preliminary findings and conclu-
sions. The employee, the representa-
tive of such employee, or the employer
may within fifteen days following re-
ceipt of the preliminary findings and
conclusions of the Regional Adminis-
trator request a hearing under this
part. Upon receipt of such a request.
the Regional Administrator, with the
concurrence of the Chief Administra-
tive Law Judge, shall publish notice of
a hearing to be held not less than 30
days following the date of such publica-
tion where he determines that there
are factual Issues concerning the exist-
ence of the alleged discrimination or
its relationship to an effluent limita-
tion 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.
§ 108.5 Procedure.
Any hearing held, pursuant to this
part shall be of record and shall be con-
ducted 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 dis-
miss the hearing. The Administrative
14
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Environmental Protection Agency
§109.2
Law Judge, on Ms own motion, or at
the request of any party, shall have the
power to hold preheating conferences,
to issue subpoenas for the attendance
and testimony of witnesses and the
production of relevant papers, books,
and documents, and he may administer
oaths. The Regional Administrator,
and any party submitting a request
pursuant to §108.3 or §108.4, or counsel
or other representative of such party
or the Regional Administrator, may
appear and offer evidence at the hear-
ing.
§ 108.6 Recommendations,
At the conclusion of any hearing
under this part, the Administrative
Law Judg*e shall, based on the record.
issue tentative findings of fact and rec-
ommendations concerning the alleged
discrimination, and shall submit such
tentative findings and recommenda-
tions to the Administrator. The Ad-
ministrator shall adopt or modify the
findings and recommendations of the
Administrative Law Judge, and shall
make copies of such findings and rec-
ommendations available to the com-
plaining employee, the employer, and
the public.
S 108.7 Hearing before Administrator.
At his option, the Administrator may
exercise any powers of an Administra-
tive Law Judge with respect to hear-
ings under this part.
PART 109—CRITERIA FOR STATE,
LOCAL AND REGIONAL OIL RE-
MOVAL CONTINGENCY PLANS
Sec.
1091 Applicability,
109.2 Definitions.
109.3 Purpose and scope.
109.4 Relationship to Federal response
actions,
109.5 Development and implementation cri-
teria for State, local and regional oil re-
moval contingency plans.
109.6 Coordination.
AUTHORITY: Sec. IKJM'IHB). 84 Stat. 96, 33
U.S.C. 116KJH1MB).
SOURCE: 36 FR 22485, Nov. 25. 1971, unless
otherwise noted.
§ 109.1 Applicability,
The criteria in this part are provided
to assist State, local and regional
agencies in the development of oil re-
moval 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 har-
bors and such other areas as may be
agreed upon between the Environ-
mental Protection Agency and the De-
partment of Transportation in accord-
ance with section ll(j)(l)(B) of the Fed-
eral Act, Executive Order No. 11548
dated July 20. 1970 (35 FR 11677) and
§306.2 of the National Oil and Haz-
ardous Materials Pollution Contin-
gency Plan (35 FR 8511).
§ 109,2 Definitions.
As used in these guidelines, the fol-
lowing terms shall have the meaning
indicated below:
(a) Oil means oil of any kind or in
any form, including, but not limited to,
petroleum, fuel oil. sludge, oil refuse,
and oil mixed with wastes other than
dredged spoil.
(to) Discharge includes, but is not lim-
ited to, any spilling, leaking1, pumping.
pouring, emitting, emptying, or dump-
ing.
(c) Remove or removal refers to the re-
moval of the oil from the water and
shorelines or the taking of such other
actions as may be necessary to mini-
mize or mitigate damage to the public
health or welfare, including, but not
limited to. fish, shellfish, wildlife, and
public and private property, shorelines.
and beaches.
(d) Major disaster means any hurri-
cane, tornado, storm, flood, high water,
wind-driven water, tidal wave, earth-
quake, drought, fire, or other catas-
trophe in any part of the United States
which, in the determination of the
President, is or threatens to become of
sufficient severity and magnitude to
warrant disaster assistance by the Fed-
eral Government to supplement the ef-
forts and available resources of States
and local governments and relief orga-
nizations in alleviating the damage.
loss, hardship, or suffering caused
t hereby.
15
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§109.3
40 CFR Ch. i (7-1-04 Edition)
(e) United Statex means the States.
the District of Columbia, the Common-
wealth of Puerto Rico, the Canal Zone,
Guam, American Samoa, the Virgin Is-
lands, and the Trust Territory of the
Pacific Islands.
(f) Federal Act means the Federal
Water Pollution Control Act. as
amended. 33 U.S.C. 1151 et seq.
$ 109.3 Purpose and scope.
The guidelines in this part establish
minimum criteria for the development
and implementation of State, local.
and regional contingency plans by
State and local governments in con-
sultation with private interests to in-
sure timely, efficient, coordinated and
effective action to minimize damage
resulting from oil discharges. Such
plans will be directed toward the pro-
tection 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 im-
plementation of such plans shall be
consistent with the National Oil and
Hazardous Materials Pollution Contin-
gency 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 estab-
lished thereunder can function inde-
pendently, in conjunction with each
other, or in conjunction with the Na-
tional and Regional Response Teams
established by the National Oil and
Hazardous Materials Pollution Contin-
gency Plan.
§109.4 Relationship to Federal re-
sponse actions,
The National Oil and Hazardous Ma-
terials Pollution Contingency Plan
provides that the Federal on-scene
commander shall investigate all re-
ported 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 ap-
propriate containment or cleanup ac-
tion is not being taken by the dis-
charger or non-Federal entities, the
Federal on-scene commander will take
control of the response activity in ac-
cordance with section life Ml) of the
Federal Act.
§ 109,5 Development and implementa-
tion criteria for State, local and
regional oil removal contingency
plans.
Criteria for the development and im-
plementation of State, local and re-
gional oil removal contingency plans
are:
(a) Definition of the authorities, re-
sponsibilities and duties of all persons.
organizations or agencies which are to
be involved or could be involved in
planning or directing oil removal oper-
ations, with particular care to clearly
define the authorities, responsibilities
and duties of State and local govern-
mental agencies to avoid unnecessary
duplication of contingency planning
activities and to minimize the poten-
tial for conflict and confusion that
could be generated in an emergency
situation as a result of such duplica-
tions.
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Environmental Protection Agency
§110.1
(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 dis-
charge for the acquisition of equip-
ment, materials and supplies to be used
in responding to such a discharge,
(d) Provisions for well defined and
specific actions to be taken after dis-
covery and notification of an oil dis-
charge including;
(1) Specification of an oil discharge
response operating team consisting of
trained, prepared and available oper-
ating personnel.
(2) Predesignation of a properly
qualified oil discharge response coordi-
nator who is charged with the responsi-
bility and delegated commensurate au-
thority 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 sever-
ity of the oil discharge.
(5) Specification of the order of pri-
ority in which the various water uses
are to be protected where more than
one water use may be adversely af-
fected as a result of an oil discharge
and where response operations may not
be adequate to protect all uses.
(e) Specific and well defined proce-
dures to facilitate recovery of damages
and enforcement measures as provided
for by State and local statutes and or-
dinances.
§ 109.6 Coordination.
For the purposes of coordination, the
contingency plans of State and local
governments should be developed and
implemented in consultation with pri-
vate interests. A copy of any oil re-
moval contingency plan developed by
State and local governments should be
forwarded to the Council on Environ-
mental Quality upon request to facili-
tate the coordination of these contin-
gency plans with the National Oil and
Hazardous Materials Pollution Contin-
gency Plan-
PART 110—DISCHARGE OF OIL
Sec-
110.
110
110.
no
1 Definitions.
2 Applicability.
3 Discharge of oil in such quantities as
"may be harmful" pursuant to section
311(b)(4) of the Act.
,4 Dispersants,
5 Discharges of oil not determined "as
may be harmful" pursuant to section
31Kb K3» of the Act.
6 Notice.
AUTHORITY; 33 U.S.C. 1321 and
-------
§110.2
40 CFR Ch. I (7-1-04 Edition)
that are subject to the ebb and flow of
the tide;
(b) Interstate waters, including inter-
state wetlands;
(c) All other waters such as intra-
state lakes, rivers, streams (including
intermittent streams), mudflats,
sandflats, and wetlands, the use. deg-
radation, or destruction of which would
affect or could affect interstate or for-
eign commerce including' any such wa-
ters:
(1) That are or could be used by inter-
state or foreign travelers for rec-
reational 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 oth-
erwise defined as navigable waters
under this section:
(e) Tributaries of waters identified in
paragraphs (a) through (d) of this sec-
tion, including adjacent wetlands: and
(f) Wetlands adjacent to waters iden-
tified in paragraphs ia) through (e) of
this section: Provided, That waste
treatment systems (other than cooling
ponds meeting the criteria of this para-
graph) are not waters of the United
States;
Navigable waters do not include prior
converted cropland. Notwithstanding"
the determination of an area's status
as prior converted cropland by any
other federal agency, for the purposes
of the Clean Water Act. the final au-
thority regarding Clean Water Act ju-
risdiction remains with EPA.
NPDES means National Pollutant
Discharge Elimination System;
Sheen means an iridescent appear-
ance on the surface of water:
Sludge means an aggregate of oil or
oil and other matter of any kind in any
form other than dredged spoil having a
combined specific gravity equivalent to
or greater than water:
United States means the States, the
District of Columbia, the Common-
wealth of Puerto Rico, Guam. Amer-
ican Samoa, the Virgin Islands, and the
Trust Territory of the Pacific Islands:
Wetlands means those areas that are
inundated or saturated by surface or
ground water at a frequency or dura-
tion sufficient to support, and that
under normal circumstances do sup-
port, a prevalence of vegetation typi-
cally adapted for life in saturated soil
conditions. Wetlands generally include
playa lakes, swamps, marshes, bogs
and similar areas such as sloughs, prai-
rie potholes, wet meadows, prairie
river overflows, mudflats, and natural
ponds.
152 FR 10719. Apr. 2. 1987, as amended at 58
FR 45039. Aug. 25. 1993: 61 FR 7421. Feb. 28.
1996]
§ 110.2 Applicability.
The regulations of this part apply to
the discharge of oil prohibited by sec-
tion 311(b)(3) of the Act.
[61 FR7421, Feb. 28. 1996J
8110.3 Discharge of oil in such quan-
tities as "may be harmful" pursuant
to section 311(b)(4) of the Act.
For purposes of section 311(b)(4) of
the Act. discharges of oil in such quan-
tities that, the Administrator has de-
termined may be harmful to the public
health or welfare or the environment of
the United States include discharges of
oil that:
cat Violate applicable water quality
standards: or
ib> Cause a film or sheen upon or dis-
coloration of the surface of the water
or adjoining shorelines or cause a
sludge or emulsion to be deposited be-
neath the surface of the water or upon
adjoining shorelines.
[61 FR 7421. Feb. 28. 1996]
§110,4 Dispersants.
Addition of dispersants or emulsifiers
to oil to be discharged that would cir-
cumvent: the provisions of this part is
prohibited.
[52 FR 10719. Apr. 2. 1987. Redesignated at 61
FR 7421. Feb. 28. 1996]
fi 110.5 Discharges of oil not deter-
mined "as may be harmful" pursu-
ant to Section 311{b)(3) of the Act.
Notwithstanding any other provi-
sions of this part, the Administrator
has not determined the following dis-
charges 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
18
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Environmental Protection Agency
Pt. 112
engine on a public vessel) and any dis-
charges of such oil accumulated in the
bilges of a vessel discharged in compli-
ance with MABPOL 73/78, Annex I. as
provided in 33 CFR part 151. subpart A:
(b) Other discharges of oil permitted
under MARPOL 73/78. Annex I. as pro-
vided in 38 CFR part 151. subpart A: and
(c) Any discharge of oil explicitly
permitted by the Administrator in con-
nection with research, demonstration
projects, or studies relating to the pre-
vention, control, or abatement of oil
pollution.
[61 FR 7421, Feb. 28, 1996')
§ 110.6 Notice.
Any person in charg'e 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 fa-
cility in violation of section 311(b)<3> of
the Act. immediately notify the Na-
tional Response Center (NEC) <800--124
8802; in the Washington. DC metropoli-
tan area. 202-426-2675). If direct report-
ing to the NBC is not practicable, re-
ports may be made to the Coast Guard
or EPA predesignated On-Scene Coordi-
nator (OSC) for the geographic area
where the discharge occurs. All such
reports shall be promptly relayed to
the NEC. If it is not possible to notify
the NBC or the predestinated DCS im-
mediately, reports may be made imme-
diately to the nearest Coast Guard
unit, provided that the person in
charg'e of the vessel or onshore or off-
shore 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 no-
tice 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 B.
(Approved by the Office of Management and
Budget under control number 2050-0046)
[52 FR 10719, Apr. 2. 1987. Redesignated and
amended at 61 FR 7421, Feb. 28. 1996: 61 FR
14032. Mar. 29. 1996J
PART 112—OIL POLLUTION
PREVENTION
Subpart A—Applicability, Definitions, and
General Requirements For All Facilities
and All Types of Oils
.1 General Applicability.
.2 Definitions.
.3 Requirement to prepare and imple-
ment a Spill Prevention. Control, and
Countermeasure Plan.
.4 Amendment of Spill Prevention, Con-
trol, and Counter-measure Plan by Re-
gional Administrator.
.5 Amendment of Spill Prevention. Con-
trol, and Counter-measure Plan bv owners
or operators.
.6 [Reserved]
7 General requirements for Spill Preven-
tion. Control, and Countermeasure
Plans.
112
Subpart B—Requirements for Petroleum
Oils and Non-Petroleum Oils, Except
Animal Fats and Oils and Greases,
and Fish and Marine Mammal Oils;
and Vegetable Oils (Including Oils
from Seeds, Nuts, Fruits, and Kernels)
112,8 Spill Prevention, Control, and Coun-
termeafure Plan requirements for on-
shore facilities
-------
§112.1
40 CFR Ch. I (7-1-04 Edition)
112,15 Spill Prevention. Control, and Coun-
termeasure Plan requirements for off-
shore oil drilling. production. or
workover facilities.
Subpart D—Response Requirements
112.20 Facility response plans.
132.21 Facility response training and drills
exercises.
APPENDIX A TO PART 112—MEMORANDUM OK
UNDERSTANDING BETWEEN THE SECRETARY
OF TRANSPORTATION AND THE ADMINIS-
TRATOR OF THE ENVIRONMENTAL PROTEC-
TION AGENCY
APPENDIX B TO PART 112—MEMORANDUM OF
UNDERSTANDING AMONG THE SECRETARY
OF THE INTBRIOK, SECRETARY OF TRANS-
PORTATION, AND ADMINISTRATOR OF THE
ENVIRONMENTAL PROTECTION AGENCY
APPENDIX C TO PART 112—SUBSTANTIAL HARM
CRITERIA
APPENDIX D TO PART 112—DETERMINATION OF
A WORST CASE DISCHARGE PLANNING VOL-
UME
APPENDIX E TO PART 112—DKTKRMI.NATION
AND EVALUATION OF RKQUIKKD RESPONSE
RESOURCES FOR FACILITY RESPONSE
PLANS
APPENDIX F TO PART 112- .FACILITY-SPECIFIC
RESPONSE PLAN
AUTHORITY: 33 U.S.C. 1251 el seq.: 33 U.S.C.
2720: E.O, 127T7 (October 18. 1991), 3 CFR. 1991
Comp., p. 351.
SOURCE: 38 FR 34165, Dec. 11. 1973. unless
otherwise noted.
EDITORIAL NOTE: Nomenclature changes to
part 112 appear at 65 FR 4079B. June 30. 2000.
Subpart A—Applicability, Defini-
tions, and General Require-
ments for All Facilities and All
Types of Oils
SOURCE: 67 FR 47140, July 17. 2002. unless
otherwise noted.
§112.1 General applicability.
(a)(l) This part establishes proce-
dures, 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 con-
tiguous zone, or in connection with ac-
tivities 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 (includ-
ing 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 in-
clude the feminine and vice versa, as
the case may require.
tb) Except as provided in paragraph
(d) of this section, this part applies to
any owner or operator of a non-trans-
portation-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 re-
sources belonging to, appertaining to,
or under the exclusive management au-
thority 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 de-
fined in § 112,2:
<3> Any container that is used for
standby storage, for seasonal storage,
or for temporary storage, or not other-
wise "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 fa-
cility, equipment, or operation that is
not subject to the jurisdiction of the
20
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Environmental Protection Agency
§112.1
Environmental Protection Agency
(EPA) under section SlKjxlxC) of the
CWA. as follows:
of this section,
(ii) Any equipment, or operation of a
vessel or transportation-related on-
shore or offshore facility which is sub-
ject to the authority and control of the
U.S. Department of Transportation, as
defined in the Memorandum of Under-
standing between the Secretary of
Transportation and the Administrator
of EPA, dated November 24. 1971 (Ap-
pendix 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 Memo-
randum of Understanding between the
Secretary of Transportation, the Sec-
retary of the Interior, and the Admin-
istrator of EPA, dated November 8, 1993
(Appendix B of this part),
(2) Any facility which, although oth-
erwise subject to the jurisdiction of
EPA, meets both of the following re-
quirements:
-------
§112.2
40 CFR Ch. 1 (7-1-04 Edition)
all relevant spill prevention, control,
and countermeasures necessary at the
specific facility. Compliance with this
part does not in any way relieve the
owner or operator of an onshore or an
offshore facility from compliance with
other Federal. State, or local laws.
(f) Notwithstanding paragraph (d) of
this section, the Regional Adminis-
trator 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 deter-
mination, 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 Adminis-
trator 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 appli-
cable 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 appli-
cable part, the Regional Administrator
must make a final determination re-
garding 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 op-
erator by certified mail or by personal
delivery. If the owner or operator is a
corporation, the Regional Adminis-
trator must also mail a copy of the
final determination to the registered
agent, if any and if known, of the cor-
poration 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 nec-
essary, the owner or operator must pre-
pare the Plan, or applicable part, with-
in six months of that final determina-
tion and implement the Plan, or appli-
cable part, as soon as possible, but not
later than one year after the Regional
Administrator has made a final deter-
mination.
(5) The owner or operator may appeal
a final determination made by the Re-
gional Administrator requiring prepa-
ration 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 Adminis-
trator 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 oper-
ator may also provide additional infor-
mation. The additional information
may be from any person. The Adminis-
trator may request additional informa-
tion 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 de-
scribed in paragraph (f)(l) of this sec-
tion.
§112.2 Definitions.
For the purposes of this part:
Adverse weather means weather condi-
tions that make it difficult for re-
sponse equipment and personnel to
clean up or remove spilled oil, and that
must be considered when identifying
response systems and equipment in a
response plan for the applicable oper-
ating environment. Factors to consider
include significant wave height as
specified in Appendix E to this part (as
appropriate), ice conditions, tempera-
tures, weather-related visibility, and
currents within the area in which the
systems or equipment is intended to
function.
22
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Environmental Protection Agency
§112.2
,1/;er;/*(i^: means any work o<; a r..;>-
tainer Involving cutting, byrnhia.
weidlna. or Iieutirsi/ operations That
changes the physical di!Yit'iisior,.~ r>r
configuration of the container.
Animal tut means a rirm-pefroJcuni
fill. fal. or grease of animal, fish or
marine mammal origin,
Brt',(tk':>i(i Sunk means a container used
to relieve surges in an oil pipeline sys-
tem or to receive and store oil trans-
ported by a pipeline for reinjeetion and
continued transportation by pipeline,
Bulk x forage container means any con-
tainer used to store oil. These con-
tainers are used for purposes including1.
but not limited to. the storage of oil
prior to use. while being used, or prior
to further distribution in commerce.
Oil-filled electrical, operating1, or man-
ufacturing' equipment is? not a bulk
.storage container.
Bunkered tank means a container
constructed or placed in the ground by
cutting; the earth and re-covering the
container in a manner that breaks the
surrounding natural grade, or thai lies
above grade, and is covered with earth.
sand, gravel, asphalt, or other mate-
rial. A bunkered tank is considered an
abovegTound storage container for pur-
poses of this part;.
Completely buried tank- means any
container completely below grade and
covered with earth, sand, gravel, as-
phalt, or other material. Containers in
vaults, bunkered tanks, or partially
buried tanks are considered above-
ground storage containers for purposes
of this part.
Complex means a facility possessing- a
combination of transportation-related
and non-transportation-related compo-
nents that is subject to the jurisdiction
of more than one Federal agency under
flection 3.1KJ) of the CWA.
Contiguous zone, means the zone es-
tablished by the United States under
Article 24 of the Convention of the Ter-
ritorial Sea and Contiguous Zone, that
is contiguous to the territorial sea and
that extends nine miles seaward from
the outer limit of (lie territorial area.
Contract or other approved >>ieit.ns
means:
(Is A written contractual agreement
with an oil spill removal organization
that identifies and ensures the avail-
ability of the necessary personnel and
•.• -., iipnit-n! wiUiU
r "its: and. or
.:!) A written Certification by the
owner or operator that the necessary
personnel and equipment resources.
owned or operated by the facility
ouuer or operator, are available to re-
spond to a discharge within ;>ppro-
pr.ate response times: and or
i3i Active membership in a local or
ivgional oil spill removal organization
that has identified and ensures ade-
quate access through such membership
to necessary personnel and equipment.
to respond to a discharge within appro-
pi iate response times in the specified
geographic area: and'or
•At Any other specific arrangement
approved by the Regional Adminis-
trator upon request of the owner or op-
erator.
Diwharpc includes, but is not limited
to. any spilling, leaking, pumping.
pouring, emitting, emptying, or dump-
ing of oil. but excludes discharges in
compliance with a permit under sec-
tion 402 of the CWA: discharges result-
ing from circumstances identified, re-
viewed, and made a part of the public
lecord with respect to a permit issued
or modified under section 402 of the
CWA. and subject to a condition in
such permit; or continuous or antici-
pated intermittent discharges from a
point source, identified in a permit or
permit application under section 402 of
the CWA. that are caused by events oc-
curring within the scope of relevant op-
c'rating or treatment systems. For pur-
poses of this part, the term discharge
shall not include any discharge of oil
that is authorized by a permit issued
under section 13 of the River and Har-
bor Act of 1899 (33 U.S.C. 407).
Facility means any mobile or fixed.
onshore or offshore building, structure,
installation, equipment, pipe, or pipe-
line (other than a vessel or a public
vessel) used in oil well drilling oper-
ations, oil production, oil refining, oil
storage, oil gathering, oil processing.
oil transfer, oil distribution, and waste
treatment, or in which oil is used, as
described in Appendix A to this part.
The boundaries of a facility depend on
several sire-specific factors, including.
but not limited to, the ownership or
operation of buildings, structures, and
23
203-159 D-2
-------
§112.2
40 CFR Ch, i (7-1-04 Edition)
equipment on the same site and the
types of activity at the site,
Fish and wildlife and wnsitiw environ-
ments means areas that may he identi-
fied by their legal designation or by
evaluations of Area Committees (for
planning) or members of the Federal
On-Scene Coordinator's spill response
structure (during- responses). These
areas may include wetlands. National
and State parks, critical habitats for
endangered or threatened species, wil-
derness and natural resource areas.
marine sanctuaries and estuarine re-
serves, conservation areas, preserves.
wildlife areas, wildlife refuges, wild
and scenic rivers, recreational areas.
national forests. Federal and State
lands that are research national areas.
heritage program areas, land trust
areas, and historical and archae-
ological sites and parks. These areas
may also include unique habitats such
as aciuaculture sites and agricultural
surface water intakes, bird nesting
areas, critical biological resource
areas, designated migratory routes,
and designated seasonal habitats.
Injury means a measurable adverse
change, either long- or short-term, in
the chemical or physical quality or the
viability of a natural resource result-
ing either directly or indirectly from
exposure to a discharge, or exposure to
a product of reactions resulting from a
discharge.
Maximum extent practicable means
within the limitations used to deter-
mine oil spill planning resources and
response times for on-water recovei-y.
shoreline protection, and cleanup for
worst case discharges from onshore
non-transportation-related facilities in
adverse weather. It includes the
planned capability to respond to a
worst case discharge in adverse weath-
er, as contained in a response plan that
meets the requirements in §112.20 or in
a specific plan approved by the Re-
gional Administrator.
Navigable waters means the waters of
the United States, including the terri-
torial seas.
(1) The term includes:
(i) All waters that are currently used,
were used in the past, or may be sus-
ceptible to use in interstate or foreign
commerce, including all waters subject
to the'ebb and flow of the tide;
fiii All interstate waters, including'
inter.st.ate wetlands;
•iiii Ail other waters such as intra-
nt-ate lakes, rivers, streams (including
intermittent streams). mudflats.
sandflats. wetlands, sloughs, prairie
pot-holes, wet meadows, playa lakes, or
natural ponds, the use. degradation, or
destruction of which could affect inter-
state or foreign commerce including'
any such waters;
(A) That are or could be used by
interstate or foreign travelers for rec-
reational or other purposes; or
(B) Prom -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 in-
dustrial purposes by industries in
interstate commerce;
(ivi All impoundments of waters oth-
erwise defined as waters of the United
States under this sect-ion;
-------
Environmental Protection Agency
§112.2
the United States and is located in. on.
or under any other waters,
Oil means oil of any kind or in any
form, including, but not limited to:
fats, oils, or greases of animal, fish, or
marine mammal origin; vegetable oils.
including oils from seeds, nuts, fruits,
or kernels; and, other oils and greases.
including petroleum, fuel oil. sludge,
synthetic oils, mineral oils, oil refuse.
or oil mixed with wastes other than
dredged spoil.
Oil Spill Removal Organization means
an entity that provides oil spill re-
sponse resources, and includes any for-
profit or not-for-profit contractor, co-
operative, or in-house response re-
sources that have been established in a
geographic area to provide required re-
sponse resources,
Onshore facility means any facility of
any kind located in. on, or under any
land within the United States, other
than submerged lands,
Owner or operator means any person
owning or operating an onshore facility
or an offshore facility, and in the case
of any abandoned offshore facility, the
person who owned or operated or main-
tained the facility immediately prior
to such abandonment.
Partially buried tank means a storage
container that is partially inserted or
constructed in the ground, but not en-
tirely below grade, and not completely
covered with earth, sand, gravel, as-
phalt, or other material. A partially
buried tank is considered an above-
ground storage container for purposes
of this part.
Permanently closed means any con-
tainer or facility for which:
(1) All liquid and sludge has been re-
moved from each container and con-
necting line; and
(2) All connecting lines and piping
have been disconnected from the con-
tainer and blanked off, all valves (ex-
cept for ventilation valves) have been
closed and locked, and conspicuous
signs have been posted on each con-
tainer stating that it is a permanently
closed container and noting the date of
closure.
Parson includes an individual, firm.
corporation, association, or partner-
ship.
Petroleum oil means petroleum in any
form, including but not limited to
crude oil. fuel oil, mineral oil, sludge,
oil refuse, and refined products,
Production facility means all struc-
tures (including but not limited to
wells, platforms, or storage facilities),
piping (including but not limited to
flowlines or gathering lines), or equip-
ment (including but not limited to
workover equipment, separation equip-
ment, or auxiliary noii-transportation-
related equipment) used in the produc-
tion, extraction, recovery, lifting, sta-
bilization, separation or treating of oil.
or associated storage or measurement.
and located in a single geographical oil
or gas field operated by a single oper-
ator.
Regional Administrator means the Re-
gional Administrator of the Environ-
mental Protection Agency, in and for
the Region in which the facility is lo-
cated.
Repair means an5r work necessary to
maintain or restore a container to a
condition suitable for safe operation,
other than that necessary for ordinary.
day-to-day maintenance to maintain
the functional integrity of the con-
tainer and that does not weaken the
container.
Spill Prevention. Control, and Counter-
measure Plan: SPCC Plan, or Plan means
the document required by §112.3 that
details the equipment, workforce, pro-
cedures, anil steps to prevent, control.
and provide adequate counter-measures
to a discharge.
Storage capacity of a container means
the shell capacity of the container.
Transpoilation-reluted and non-trans-
portation-rtilated. as applied to an on-
shore or offshore facility, are defined
in the Memorandum of Understanding
between the Secretary of Transpor-
tation and the Administrator of the
Environmental Protection Agency,
dated November 24, 1971. (Appendix A
of this part),
United States means the States, the
District of Columbia, the Common-
wealth of Puerto Rico, the Common-
wealth of the Northern Mariana Is-
lands, Guam. American Samoa, the
U.S. Virgin Islands, and the Pacific Is-
land Governments,
Vegetable oil means a non-petroleum
oil or fat of vegetable origin, including
but not limited to oils and fats derived
25
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§112.3
40 CFR Ch, I (7-1-04 Edition)
from plant seeds, nuts, fruits, and ker-
nels.
Vessel means every description of
watercraft or other artificial contriv-
ance used, or capable of being used, as
a means of transportation on water.
other than a public vessel.
Wetlands means those areas that are
inundated or saturated by surface or
groundwater at a frequency or duration
sufficient to support, and that under
normal circumstances do support, a
prevalence of vegetation typically
adapted for life in saturated soil condi-
tions. Wetlands generally include playa
lakes, swamps, marshes, bogs, and
similar areas such as sloughs, prairie
potholes, wet meadows, prairie river
overflows, mudflats, and natural ponds.
Worst case discharge for an onshore
non-transportation-related facility
means the largest foreseeable dis-
charge in adverse weather conditions
as determined using the worksheets in
Appendix D to this part.
§112.3 Requirement to prepare and
implement a Spill Prevention, Con-
trol, and Countermeasure Plan.
The owner or operator of an onshore
or offshore facility subject to this sec-
tion 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) If your onshore or offshore facil-
ity was in operation on or before Au-
gust 16, 2002, you must maintain your
Plan, but must amend it. if necessary
to ensure compliance with this part, on
or before August 17. 2004. and must im-
plement the amended Plan as soon as
possible, but not later than February
18. 2005, If your onshore or offshore fa-
cility becomes operational after Au-
gust 16. 2002. through February 18. 2005.
and could reasonably be expected to
have a discharge as described in
§112.Kb), you must prepare a Plan on
or before February 18, 2005 , and fully
implement it as soon as possible, but
not later than February 18. 2005.
(b) If you are the owner or operator
of an onshore or offshore facility that
becomes operational after February 18.
2005. and could reasonably be expected
to have a discharge as described in
§112.lib), you must prepare and imple-
ment a Plan before you begin oper-
ations,
(c) If you are the owner or operator
of an onshore or offshore mobile facil-
ity, such as an onshore drilling or
workover rig. barge mounted offshore
drilling or workover rig. or portable
fueling facility, you must prepare, im-
plement, and maintain a facility Plan
as required by this section. This provi-
sion does not require that you prepare
a new Plan each time you move the fa-
cility to a new site. The Plan may be a
general plan. When you move the mo-
bile or portable facility, you must lo-
cate and install it using the discharge
prevention practices outlined in the
Plan for the facility. You may not op-
erate a mobile or portable facility sub-
ject to this part unless you have imple-
mented the Plan. The Plan is applica-
ble only while the facility is in a fixed
(non-transportation) operating mode.
-------
Environmental Protection Agency
§112.4
«2) Have the Plan available to the Re-
gional Administrator for on-site review
during normal working hours,
(f) Extension of lima.
-------
§112.5
40 CFR Ch. i (7-1-04 Edition)
all information you provided to the Re-
gional Administrator under paragraph
(a) of this section. Upon receipt of the
information such State agency or agen-
cies may conduct a review and make
recommendations to the Regional Ad-
ministrator as to further procedures,
methods, equipment, and other require-
ments necessary to prevent and to con-
tain discharges from your facility.
-------
Environmental Protection Agency
§112.7
SPCC Plan within six months of the re-
view to Include more effective preven-
tion and control technology if the tech-
nology has been field-proven at the
time of the review and will signifi-
cantly reduce the likelihood of a dis-
charge as described in §112.lib) from
the facility. You must implement any
amendment as soon as possible, but not
later than six months following prepa-
ration of any amendment. You must
document your completion Of the re-
view and evaluation, and must slim a
statement as to whether you will
amend the Plan, either at the begin-
ning' 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."
(O Have a Professional Engineer cer-
tify any technical amendment to your
Plan ill accordance with §112.3(d).
§ 112.6 [Reserved!
S 112.7 General requirements for Spill
Prevention, Control, and Counter-
measure Plans.
If you are the owner or operator of a
facility subject to this part you must
prepare a Plan in accordance with g'ood
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 se-
quence specified in this section for the
Plan, you must prepare an equivalent
Plan acceptable to the Regional Ad-
ministrator that meets all of the appli-
cable requirements listed in this part,
and you must supplement it with a sec-
tion 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, arid must
explain separately the details of instal-
lation and operational start-up. As de-
tailed elsewhere in this section, you
must also:
;a)(l) Include a discussion of your fa-
cility's conformance with the require-
ments listed in this part.
(2) Comply with all applicable re-
quirements listed in this part. Your
Plan may deviate from the require-
ments in paragraphs (g). «
The facility diagram must also include
ail 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 han-
dling of products (loading, unloading.
and facility transfers, etc.):
29
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§112.7
40 CFR Ch. I (7-1-04 Edition)
(ill) Discharge or drainage controls
such as secondary containment around
containers and other structures, equip-
ment, 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 he required of a contractor);
(v) Methods of disposal of recovered
materials in accordance with applica-
ble legal requirements: and
(vi) Contact list and phone numbers
for the facility response coordinator.
National Response Center, cleanup con-
tractors with whom you have an agree-
ment for response, and all appropriate
Federal, State, and local agencies who
must be contacted in case of a dis-
charge as described in §112,Kb).
(4) Unless you have submitted a re-
sponse plan under § 112,20. provide in-
formation and procedures in your Plan
to enable a person reporting a dis-
charge as described in §112,Kb) to re-
late information on the exact address
or location and phone number of the fa-
cility; the date and time of the dis-
charge, the type of material dis-
charged; estimates of the total quan-
tity discharged; estimates of the quan-
tity discharged as described in
§112,l(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; ac-
tions 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 or-
ganizations who have also been con-
tacted.
(5) Unless you have submitted a re-
sponse plan under §112.20, organize por-
tions of the Plan describing procedures
you will use when a discharge occurs in
a way that will make them readily usa-
ble in an emergency, and include ap-
propriate supporting material as ap-
pendices,
(b) Where experience indicates a rea-
sonable potential for equipment failure
(such as loading or unloading equip-
ment, tank overflow, rupture, or leak-
age, 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 fa-
cility as a result of each type of major
equipment failure.
to Provide appropriate containment
and or diversionary structures or
equipment to prevent a discharge as
described in §112.Kb). The entire con-
tainment, 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 occurs. At a minimum, you
must use one of the following preven-
tion systems or its equivalent:
(I) For onshore facilities:
(ii Dikes, berms. or retaining walls
sufficiently impervious to contain oil:
(ii i Curbing:
(ill) Culvert-ing', gutters, or other
drainage systems;
(iv) Weirs, booms, or other barriers;
of this section, and
§§112.8. 112.8(0(11). 112.9(c)<2).
112.10(0, 112.12(0(2). 112,12(03(11).
112.13(0(2). and 112.14(c) to prevent a
discharge as described in §112.Kb) 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 con-
tainers, conduct both periodic integ-
rity testing of the containers and peri-
odic integrity and leak testing of the
valves paid piping: and. unless you have
submitted a response plan under
§112.20. provide in your Plan the fol-
lowing1:
(1) An oil spill contingency plan fol-
lowing the provisions of part 109 of this
chapter.
(2) A written commitment of man-
power, equipment, and materials re-
quired to expeditiously control and re-
move any quantity of oil discharged
that may be harmful.
(e) Inspections, teats, and records. Con-
duct inspections and tests required by
this part in accordance with written
procedures that you or the certifying
30
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invironmento; Protection Agency
§112.
enuu,!-!1! develop for the facility- You
must keep these wilt-ten prucecUirt-s
Hiiii a record of the inspections; and
tests, signed by the appropriate super-
visor or inspector, with tlie SPCC Plan
joi: a period of three years. Records of
inspections and tests kept under usual
,md customary business practices will
suffice for purposes of this paragraph.
Provide facility lighting commen-
surate with tlu; type and location of
the facility thai will assist, in th*3:
i); Discovery of discharges occurring
iiuring hours of darkness, both by opei -
•:u ing personnel, if present, and by non-
operating personnel (the general uub-
":ic. local police, etc.): and
Mi! Prevention of discharges occur-
mig through acts of vandalism.
(hi Facility tank' car and tank truck
!:>ading.unloading rack (excluding tiff-
\','W /aei/int'.sj. (1) Where loading-un-
loading area drainage does not flow
into a catchment basin or treatment
facility designed to handle discharges.
use a Quick drainage system for tank
r,*.!' or Lank truck loading and unload-
ing areas. You must design any con-
tainment system to hold at least the
maximum capacity of any single com-
partment of a tank car or tank truck
loaded or unloaded at the facility.
(2s Provide an interlocked warning
light or physical barrier system, warn-
ing signs, wheel chocks, or vehicle
'".•eak interlock system in loading'un-
;oading areas to prevent vehicles from
departing before complete disconnec-
tion of flexible or fixed oil transfer
Sines.
(3> Prior to filling and departure of
any tank car or tank truck, closely in-
spect for discharges the lowermost-
drain and all outlets of such vehicles.
and if necessary, ensure that they are
tightened, adjusted, or replaced to pre-
vent liquid discharge while in transit.
iii If a field-constructed aboveground
container undergoes a repair, alter-
ation, reconstruction, or a change in
.service that might affect the risk of a
discharge or failure due to brittle frac-
ture or other catastrophe, or has dis-
charged oil or failed due to brittle frac-
lure failure or other catastrophe.
evaluate the container for risk of dis-
charge or failure due to brittle fracture
or other catastrophe, and as necessary.
take appropriate action.
(j) In addition to the minimal preven-
tion standards listed under this sec-
tion, include in your Plan a complete
discussion of conformance with the ap-
plicable requirements and other effec-
tive discharge prevention and contain-
ment procedures listed in this part, or
31
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§112.8
40 CFR Ch. I (7-1-04 Edition)
any applicable more stringent State
rules, regulations, and guidelines.
Subpart B—Requirements for Pe-
troleum Oils and Non-Petro-
leum Oils, Except Animal Fats
and Oils and Greases, and
Fish and Marine Mammal Oils;
and Vegetable Oils (Including
Oils from Seeds, Nuts, Fruits,
and Kernels)
SOVHCK: 67 FR 47146. July 17, 2002, unless
otherwise noted.
SI 12.8 Spill Prevention, Control, and
Countermeasure Plan requirements
for onshore facilities (excluding
production facilities).
If you are the owner or operator of an
onshore facility (excluding a produc-
tion facility), you must:
(a) Meet the general requirements for
the Plan listed under §112.7, and the
specific discharge prevention and con-
tainment procedures listed in this sec-
tion.
(b) Facility drainage. (1) Restrain
drainage from diked storage areas by
valves to prevent a discharge into the
drainage system or facility effluent
treatment system, except where facil-
ity systems are designed to control
such discharge. You may empty diked
areas by pumps or ejectors; however.
you must manually activate these
pumps or ejectors and must inspect the
condition of the accumulation before
starting, to ensure no oil will be dis-
charged.
(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 oil-
site wastewater treatment plant, you
must inspect and may drain
uncontaminated retained stormwater.
as provided in paragraphs (e)<3)(ii).
Ciii). and (iv) of this section.
(3) Design facility drainage systems
from undiked areas with a potential for
a discharge (such as where piping is lo-
cated outside containment, walls or
where tank truck discharges may occur
outside the loading area) to flow into
ponds, lagoons, or catchment basins de-
simiod to retain oil or return it, to the
facility. You must not locate
catchment basins in areas subject to
periodic flooding'.
(Ji If facility drainage is not engi-
neered as in paragraph (bu3) of this
section, equip the final discharge of all
ditches inside the facility with a diver-
sion system that would, in the event of
an uncontrolled discharge, retain oil in
the facility.
15) 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 tech-
niques you use. you must engineer fa-
cility drainage systems to prevent a
discharge as described in §112.Kb) in
case there is an equipment failure or
human error at the facility.
to Bulk storage containers. <1) Not use
a container for the storage of oil unless
its material and construction are com-
patible with the material stored and
conditions of storage such as pressure
and temperature.
(2s Construct all bulk storage con-
tainer installations so that you provide
a secondary means of containment for
the entire capacity of the largest single
container and sufficient freeboard to
contain precipitation. You must ensure
that diked areas are sufficiently imper-
vious to contain discharged oil. Dikes,
containment curbs, and pits are com-
monly employed for this purpose. You
may also use an alternative system
consisting of a drainage trench enclo-
sure 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 dis-
charge of an effluent into an open wa-
tercourse, lake, or pond, bypassing the
facility treatment system unless you:
-------
Environmental Protection Agency
§112.3
(iv> Keep adequate records of such
events, for example, any records re-
quired under permits issued in accord-
ance with §§122.41(jt<2) and 122.4Urr.tf3)
of this chapter.
(4) Protect any completely buried
metallic storage tank installed on or
after January 10. 1974 from corrosion
by coating's 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 stor-
age of oil. unless you protect the bur-
ied section of the tank from corrosion.
You must protect, partially buried and
bunkered tanks from corrosion by
coatings or cathodic protection com-
patible with local soil conditions.
(8i 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 test-
ing, ultrasonic testing, acoustic emis-
sions testing, or another system of
non-destructive shell testing. You
must keep comparison records and you
must, also inspect the container's sup-
ports and foundations. In addition, you
must frequently inspect the outside of
the container for signs of deteriora-
tion, discharges, or accumulation of oil
inside diked areas. Records of inspec-
tions and tests kept under usual and
customary business practices will suf-
fice for purposes of this paragraph.
(7s Control leakage through defective
internal heating coils by monitoring
the st/ea.m return and exhaust lines for
contamination from internal heating
coils that discharge into an open wa-
tercourse, or pass the steam return or
exhaust lines through a settling tank.
skimmer, or other separation or reten-
tion system.
(8) Engineer or update each container
installation in accordance with good
engineering practice to avoid dis-
charges. You must provide at least one
of the following devices:
d) High liquid level alarms with an
audible or visual signal at a constantly
attended operation or surveillance sta-
tion. In smaller facilities an audible air
vent may suffice.
(ii) High liquid level pump cutoff de-
vices set to stop flow at a predeter-
mined container content level.
iiii) Direct audible or code signal
communication between the container
ganger and the pumping station.
dv) A fast, response system for deter-
mining the liquid level of each bulk
storage container such as digital com-
puters, 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
Ifvel sensing devices to ensure proper
operation.
(9) Observe effluent treatment facili-
ties frequently enough to detect pos-
sible system upsets that could cause a
discharge as described in §112.l(b).
(10) Promptly correct visible dis-
charges 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 accumula-
t ions of oil in diked areas
(11) Position or locate mobile or port-
able oil storage containers to prevent a
discharge as described in §112.1(b), You
must furnish a secondary means of con-
tainment, such as a dike or catchment
basin, sufficient to contain the capac-
ity of the largest single compartment
or container with sufficient freeboard
to contain precipitation.
Facility transfer operations, pump-
ing, and fat-Hit y process. (1) Provide bur-
ied piping that is installed or replaced
on or after August 16. 2002, with a pro-
tective wrapping and coating. You
must also cathodlcally protect such
buried piping installations or otherwise
-.ar.isfy the corrosion protection stand-
ards for piping in part 280 of this chap-
ter or a State program approved under
part 281 of this chapter. If a section of
buried line is exposed for any reason.
you must carefully inspect it for dete-
rioration. If you find corrosion damage,
you must undertake additional exam-
ination and corrective action as indi-
cated by the magnitude of the damage.
33
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§112.9
40 CFR Ch. I (7-1-04 Edition)
(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 abovegronnd
valves, piping, and appurtenances. Dur-
ing 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 integ-
rity and leak testing of buried piping
at the time of installation, modifica-
tion, construction, relocation, or re-
placement.
(5) Warn all vehicles entering the fa-
cility to be sure that no vehicle will
endanger aboveground piping or other
oil transfer operations.
§112.9 Spill Prevention, Control, and
Countermeasure Plan requirements
for onshore oil production facilities,
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 con-
tainment procedures listed under this
section.
(b) Oil production facility drainage.. (1)
At tank batteries and separation and
treating areas where there is a reason-
able possibility of a discharge as de-
scribed in § 112.Kb), close and seal at all
times drains of dikes or drains of
equivalent measures required under
§112.7(c)(l), except when draining
uncontaminated rainwater. Prior to
drainage, you must inspect the diked
area and take action as provided in
§112.8(C)(3Xii). (iii), and (iv). You must
remove accumulated oil on the rain-
water and return it to storage or dis-
pose of it in accordance with legally
approved methods.
(2) Inspect at regularly scheduled in-
tervals field drainage systems (such as
drainage ditches or road ditches), and
oil traps, sumps, or skimmers, for an
accumulation of oil that may have re-
sulted from any small discharge. You
must promptly remove any accumula-
tions of oil.
id Oil production facility hulk storage
containers. il> Not use a container for
the storage of oil unless its material
and construction are compatible with
•he material stored and the conditions
of storage.
<2) Provide all tank battery, separa-
tion, and treating facility installations
with a secondary means of contain-
ment 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 poncl.
(3) Periodically and upon a regular
schedule visually inspect each con-
tainer of oil for deterioration and
maintenance needs, including" the foun-
dation and support of each container
that is on or above the surface of the
ground.
fli Engineer or update new and old
tank battery installations in accord-
ance with good engineering practice to
prevent discharges. You must provide
at least one of the following:
(i) Container capacity adequate to as-
sure 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 01 other transfer of oil
from the container.
(iv) Hig'h level sensors to generate
and transmit, an alarm signal to the
computer where the facility is subject
to a computer production control sys-
tem.
(d) Facility transfer operations, oil pro-
duction facility. (1) Periodically and
upon a regular schedule inspect all
aboveground valves and piping associ-
ated with transfer operations for the
general condition of flange joints.
valve glands and bodies, drip pans, pipe
supports, pumping well polish, rod
stuffing boxes, bleeder and gauge
valves, and other such items.
(2) Inspect saltwater (oil field brine)
disposal facilities often, particularly
following a sudden change in atmos-
pheric temperature, to detect possible
system upsets capable of causing a dis-
charge.
34
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Environmental Protection Agency
§112.11
(3) Have a program of flowline main-
tenance to prevent discharges from
each flowline,
§112.10 Spill Prevention, Control, and
Countermeasure Plan requirements
for onshore oil drilling and
workover facilities.
If you are the owner or operator of an
onshore oil drilling and workover facil-
ity. you must:
(a) Meet, the general requirements
listed under §112.7, and also meet, the
specific discharge prevention and con-
tainment procedures listed under this
section,
(to) Position or locate mobile drilling
or workover equipment so as to pre-
vent a discharge as described in
Provide catchment basins or di-
version structures to intercept and
contain discharges of fuel, crude oil. or
oily drilling .fluids.
fd) Install a blowout prevention
(BOP) assembly and well control sys-
tem 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 en-
countered -while that BOP assembly
and well control system are on the
well.
§112.11 Spill Prevention, Control, and
Countermeasure Plan requirements
for offshore oil drilling, production,
or workover facilities.
If you are the owner or operator of an
offshore oil drilling, production, or
workover facility, you must:
ias Meet the genera,! requirements
listed under §112.7. and also meet the
specific discharge prevention and con-
tainment procedures listed under this
section.
tb) Use oil drainage collection equip-
ment 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 to-
ward a central collection sump to pre-
vent the facility from having a dis-
charge as described in §112.1(b>. Where
drains and sumps are not practicable.
you must remove oil contained in col-
lection equipment as often as nec-
essary to prevent overflow,
to 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 op-
eration of the liquid removal system
and pump start-up device. Redundant-
automatic sump pumps and control de-
vices may l»e required on some installa-
tions.
ul) At facilities with areas where sep-
arators and treaters are equipped with
dump valves which predominantly fail
ir, the closed position and where pollu-
t ion risk is high, specially equip the fa-
cility to prevent the discharge of oil.
You must preveni 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 auto-
matically shut in wells producing to
the separator: or
(3) Installing parallel redundant
damp valves.
(e) Equip atmospheric' storage or
surge containers with high liquid level
sensing devices that activate an alarm
or control the flow, or otherwise pre-
vent discharges.
(f) Equip pressure containers with
high and low pressure sensing devices
that activate an alarm or control the
'"low,
!g> Equip containers with suit-able
corrosion protection.
(h) Prepare and maintain at the facil-
ity 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 sched-
uled periodic basis, commensurate with
the complexity, conditions, and cir-
:'umstances of th<> facility and any
other appropriate regulations. You
must use simulated discharges for test-
nig and inspecting human and equip-
ment pollution control and counter-
measure systems.
(ji Describe in detailed records sur-
face and subsurface well shut-in valves
35
-------
§112.12
40 CFR Ch. \ (7-1-04 Edition)
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 welj
control system during' workover oper-
ations and before drilling below any
casing string1. The BOP assembly and
well control system must be capable of
controlling any well-head pressure that
may be encountered while the BOP as-
sembly and well control system are on
the well,
(1) 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 work-
ing pressure of the flowline and mani-
fold 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
agrainst environmental stresses and
other activities such as fishing oper-
ations.
(p) Maintain sub-marine piping ap-
purtenant to the facility in good oper-
ating condition at all times. You must
periodically and according to a sched-
ule inspect or test such piping for fail-
ures. You must document and keep a
record of such inspections or tests at
the facility.
Subpart C—Requirements for Ani-
mal Fats and Oils and
Greases, and Fish and Marine
Mammal Oils; and for Vege-
table Oils, including Oils from
Seeds, Nuts, Fruits, and Ker-
nels.
SOURCE: 6? FE 57149, July 17, 2002. unless
otherwise noted.
§112.12 Spill Prevention, Control, and
Countermeastire Plan requirements
for onshore facilities (excluding
production facilities)
If you are the owner or operator of an
onshore facility (excluding a produc-
tion facility), you must:
i a) Meet the general requirements for
the Plan listed under §112.7. and the
specific discharge prevention and con-
tainment procedures listed in this sec-
tion.
(b> Facility drainage. (It Restrain
drainage from diked storage areas by
valves to prevent a discharge into the
drainage system or facility effluent
treatment system, except where facil-
ity systems are designed to control
such discharge. You may empty diked
areas by pumps or ejectors; however.
you must, manually activate these
pumps or ejectors and must inspect the
condition of the accumulation before
starting, to ensure no oil will be dis-
charged.
(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-
slte waslewater treatment plant, you
must inspect and may drain
uncoiitaminated retained stormwater.
subject to the requirements of para-
graphs (c)(3i(ii). tili), and (iv) of this
section.
(3) Design facility drainage systems
from uncliked areas with a potential for
a discharge (such as where piping is lo-
cated outside containment walls or
where tank truck discharges may occur
outside the loading area) to flow into
ponds, lagoons, or catchment basins de-
signed 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 engi-
neered as in paragraph (b)(3) of this
section, equip the final discharge of all
ditches inside the facility with a diver-
sion 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
36
-------
Environmental Protection Agency
§112.12
"lift" pumps and permanently install at
least one of the pumps. Whatever tech-
niques you use, you must engineer fa-
cility drainage systems to prevent a
discharge as described in §112.iCb» in
case there is an equipment failure or
human error at the facility.
(c) Bulk storage containers. (I) Not use
a container for the storage of oil unless
its material and construction are com-
patible with the material stored and
conditions of storage such as pressure
and temperature.
(2) Construct all bulk storage con-
tainer installations so that you provide
a secondary means of containment, for
the entire capacity of the largest single
container and sufficient freeboard to
contain precipitation. You must ensure
that diked areas are sufficiently imper-
vious to contain discharged oil. Dikes.
containment curbs, and pits are com-
monly employed for this purpose. You
may also use an alternative system
consisting of a drainage trench enclo-
sure 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 dis-
charge of an effluent into an open wa-
tercourse, 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).
(ill) Open the bypass valve and reseal
it following- drainage under responsible
supervision; and
(iv) Keep adequate records of such
events, for example, any records re-
quired under permits issued in accord-
ance with §§ 122.41(j>(2> and 122.41un><3>
of this chapter.
(A) Protect any completely buried
metallic storage tank installed on or
after January 10. 1974 from corrosion
by coatings or eathodic 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 stor-
age of oil. unless yon protect the bur-
ied section of the tank from corrosion.
You must protect partially buried and
bunkered tanks from corrosion by
coatings or eathodic protection com-
patible with local soil conditions,
c6) 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-
rnounted. elevated, or partially buried!.
You must combine visual inspection
with another testing technique such as
hydrostatic testing, radiographie test-
ing, ultrasonic testing, acoustic emis-
sions testing, or another system of
non-destructive shell testing. You
must keep comparison records and you
must also inspect the container's sup-
ports and foundations. In addition, you
must frequently inspect the outside of
the container for signs of deteriora-
tion, discharges, or accumulation of oil
inside diked areas. Records of inspec-
tions and tests kept under usual and
customary business practices will suf-
fice 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 wa-
tercourse, or pass the steam return or
exhaust lines through a settling tank.
skimmer, or other separation or reten-
tion system.
(8) Engineer or update each container
installation in accordance with good
engineering practice to avoid dis-
charges. 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 sta-
tion. In smaller facilities an audible air
vent may suffice.
(ii) Hig*h liquid level pump cutoff de-
vices set to stop flow at a predeter-
mined container content level.
;iii) Direct audible or code signal
communication between the container
gaugrer and the pumping station,
(iv) A fast response system for deter-
mining the liquid level of each bulk
storage container such as digital com-
puters, telepulse. or direct vision
gauges. If you use this alternative, a
person must be present to monitor
37
-------
§112.13
40 CFR Ch. I (7-1-04 Edition)
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 facili-
ties frequently enough to detect pos-
sible system upsets that couid cause a
discharge as described in §112.Kb).
(105 Promptly correct visible dis-
charges which result in a loss of oil
from the container, including but not
limited to seams, gaskets, piping1.
pumps, valves, rivets, and bolts. You
must promptly remove any accumula-
tions of oil in diked areas.
(11) Position or locate mobile or port-
able oil storage containers to prevent a
discharge as described in §112.libs. You
must furnish a secondary means of con-
tainment, such as a dike or catchment
basin, sufficient to contain the capac-
ity of the largest single compartment
or container with sufficient freeboard
to contain precipitation.
Cd) Facility transfer operations, pump-
ing, and facility process. (1) Provide bur-
ied piping that is installed or replaced
on or after August 16, 2002. with a pro-
tective wrapping- and coating. You
must, also cathodically protect such
buried piping installations or otherwise
satisfy the corrosion protection stand-
ards for piping in part 280 of this chap-
ter or a State program approved under
part 281 of this chapter. If a section of
buried line is exposed for any reason.
you must carefully inspect it for dete-
rioration. If you find corrosion damage,
you must undertake additional exam-
ination and corrective action as indi-
cated by the magnitude of the damage.
(2) Cap or blank-flange the terminal
connection at the transfer point and
mark it as to origin when piping is not
in service or is in standby service for
an extended time.
(3) Properly design pipe supports to
minimize abrasion and corrosion and
allow for expansion and contraction.
(4) Regularly inspect all aboveground
valves, piping, and appurtenances. Dur-
ing 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 integ-
rity and leak testing of buried piping
at the time of installation, modifica-
tion, construction, relocation, or re-
placement.
(5) Warn all vehicles entering' the fa-
cility to be sure that no vehicle will
endanger aboveground piping or other
oil transfer operations.
§112.13 Spill Prevention, Control, and
Countertneasure Plan requirements
for onshore oil production facilities.
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 con-
tainment procedures listed under this
section.
(b) OiZ production facility drainage. (!)
At tank batteries and separation and
treating areas where there is a reason-
able possibility of a discharge as de-
scribed in §112.l(b). close and seal at all
times drains of dikes or drains of
equivalent measures required under
§112.7(cMl). except when draining
uncontaminated rainwater, Prior to
drainage, you must inspect the diked
area and take action as provided in
§H2.12(c)(3)tii). (iil). and (iv). You must
remove accumulated oil on the rain-
water and return it to storage or dis-
pose of it in accordance with legally
approved methods.
(2) Inspect at regular1 y scheduled in-
tervals field drainage systems (such as
drainage ditches or road ditches), and
oil traps, sumps, or skimmers, for an
accumulation of oil that may have re-
sulted from any small discharge. You
must promptly remove any accumula-
tions of oil.
(c) Oil production facility hulk storage
containers. (1) Not use a container for
the storage of oil unless its material
and construction are compatible with
the material stored and the conditions
of storage.
(2) Provide all tank battery, separa-
tion, and treating facility installations
with a secondary means of contain-
ment 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.
38
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Environmental Protection Agency
§112.15
(3) Periodically and upon a regular
schedule visually inspect each con-
tainer of oil for deterioration and
maintenance needs, including' the foun-
dation 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 accord-
ance with good engineering' practice to
prevent discharges. You must provide
at least one of the following:
(i) Container capacity adequate to as-
sure that a container will not overfill if
a pumpergauger is delayed in makinsr
regularly scheduled rounds.
(ii) Overflow equalizing lines between
containers so that a full container can
overflow to an adjacent container'.
(iiit Vacuum protection adequate to
prevent container collapse during' a
pipeline run or other transfer of oil
from the container.
(ivi High level sensors to generate
and transmit an alarm signal to the
computer where the facility is subject
to a computer production control sys-
tem.
(d) Facility transfer operations, oil pro-
duction facility. (1) Periodically and
upon a regular schedule inspect all
aboveground valves and piping associ-
ated with transfer operations for the
general condition of flange joints.
valve glands and bodies, drip pans, pipe
supports, pumping well polish rod
stuffing boxes, bleeder and gauge
valves, and other such items,
(2) Inspect saltwater (oil field brine)
disposal facilities often, particularly
following a sudden change in atmos-
pheric temperature, to detect possible
system upsets capable of causing a dis-
charge.
(3) Have a program of flow-line main-
tenance to prevent discharges from
each flowline.
§ 112.14 Spill Prevention, Control, and
Countermeasure Plan requirements
for onshore oil drilling and
workover facilities.
If you are the owner or operator of an
onshore oil drilling and workover facil-
ity, you must:
(a) Meet the general requirements
listed under §112.7. a,nd also meet the
specific discharge prevention and con-
tainment, procedures listed under this
section.
:b) Position or locate mobile drilling1
01 workover equipment so as tc pre-
vent: a discharge as described in
§112.Kb).
•,c) Provide catchment basins or di-
version structures to intercept and
contain discharges of fuel, crude oil. or
oily drilling fluids.
id) Install a blowout prevention
(BOP) assembly and well control sys-
tem before drilling below any casing
suing or during workover operations.
The BOP assembly and well control
system must be capable of controlling
any well-head pressure that may be en-
countered while that BOP assembly
and well control system are on the
well.
§ 112.15 Spill Prevention, Control, and
Countermeasure Plan requirements
for offshore oil drilling, production,
or workover facilities.
If you are the owner or operator of an
offshore oil drilling, production, or
workover facility, you must:
-------
§112,20
40 CFR Ch. I (7-1-04 Edition)
automatic sump pumps and control de-
vices may be required on some installa-
tions.
(d) At facilities with areas where sep-
arators and treaters are equipped with
dump valves which predominantly fail
in the closed position and where pollu-
tion risk is high, specially equip the fa-
cility 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 auto-
matically 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 pre-
vent discharges.
(f) Equip pressure containers with
high and low pressure sensing devices
that, activate an alarm or control the
How,
(g> Equip containers with suitable
corrosion protection.
(h) Prepare and maintain at the facil-
ity 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 sched-
uled periodic basis, commensurate with
the complexity, conditions, and cir-
cumstances of the facility and any
other appropriate regulations, You
must use simulated discharges for test-
ing and inspecting human and equip-
ment pollution control and counter-
measure systems,
(j) Describe in detailed records sur-
face 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 oper-
ations 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 that BOP as-
sembly and well control system are on
the well,
(1) Equip all manifolds (headers) with
check valves on individual flowlines.
urn 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 work-
ing pressure of the flowline arid mani-
fold valves up to and including the
header valves. Alternatively you may
provide a pressure relief system for
flowlines.
-------
Environmental Protection Agency
§112.20
before February 18. 1993 who submitted
a response plan by February 18, 1993
shall revise the response plan to satisfy
the requirements of this section and re-
submit the response plan or updated
portions of the response plan to the Re-
gional Administrator by February 18.
1995.
iii) The owner or operator of an exist-
ing 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 Adminis-
trator before August 30. 1994.
(2) The owner or operator of a facility
in operation on or after August 30. 199!
that satisfies the eriieria in paragraph
(f)(l) of tins section or that is notified
by the Regional Administrator pursu-
ant to paragraph (b) of this section
shall prepare and submit a facility re-
sponse plan that satisfies the require-
ments of this section to the Regional
Administrator.
(i) For a facility that commenced op-
erations 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 (fxli
of this section, the owner or operator
shall submit the response plan or up-
dated 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 Re-
gional Administrator prior to August
30. 1094.
(ii) For a newly constructed facility
that commences operation after Au-
gust 30. 1994. and is required to prepare
and submit a response plan based on
the criteria in paragraph (fid) 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 Adminis-
trator prior to the start of operations
(adjustments to the response plan to
reflect changes that occur at the facil-
ity during the start-up phase of oper-
ations must be submitted to the Re-
gional Administrator after an oper-
ational trial period of 60 days).
(iiii For a facility required to prepare
and submit a response plan after Au-
gust 30, 1994. as a result of a planned
ch.-mge in design, construction, oper-
ation, or maintenance chat renders the
facility subject to the criteria in para-
graph (full of this section, the owner
01 operator bha.ll submit the response
plan, along with a completed version of
the response plan cover sheet con-
tained in Appendix F to this part, to
the Regional Administrator before the
portion of the facility undergoing
change commences operations (adjust-
ments to the response plan to reflect
cli.inges that occur at the facility dur-
ini; the start-up phase of operations
must be submitted to the Regional Ad-
ministrator after an operationa] trial
period of 60 (lays)
•iv) For a facility required to prepare
and submit- a response plan after Au-
gust 30, 1994. as a result of ,-ui un-
planned event or change in facility
characteristics that renders the facil-
ity subject to the criteria in paragraph
(fnl> of this section, the owner or oper-
ator 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 Re-
gional 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 al-
ternative formula that is comparable
to one contained in Appendix C to this
part to evaluate the criterion in para-
graph ifxlKiiKB) or <:f)clHii)(C) of this
section, the owner or operator shall at-
tach documentation to the response
plan cover sheet contained In Appendix
F1 to this part that denionstrat.es the
reliability and analytical soundness of
the alternative formula.
(4) Preparation and submission of re-
sponse plans Animal fa I and vegetable.
ml facilities. The owner or operator of
any non-transportation-related facility
that handles, stores, or transports ani-
mal fats and vegetable oils must pre-
pare and submit a facility response
plan as follows:
(i) FaciUti(.'x itith approved plans. The
owner or operator of a facility with a
facility response plan that has been ap-
proved under paragraph ici of this sec-
tion by July 31. 2000 need not prepare
-------
§112.20
40 CFR Ch. I (7-1-04 Edition)
or submit a revised plan except as oth-
erwise required by paragraphs (b). fet,
or (d) of this section.
(ii) Facilities with plans that have been
submitted to the Regional Administrator,
Except for facilities with approved
plans as provided in paragraph
of this section, must prepare and sub-
mit a plan to the Regional Adminis-
trator in accordance with paragraph
of this section after
July 31, 2000. including plans that had
been previously approved, must also re-
view the plan to determine if it meets
or exceeds the applicable provisions of
this part. If the plan does not meet or
exceed the applicable provisions of this
part, the owner or operator must revise
and resubmit revised portions of an
amended plan to the Regional Adminis-
trator in accordance with paragraph (d)
of this section, as appropriate. The
plan must meet or exceed the applica-
ble provisions of this part,
(bid) The Regional Administrator
may at any time require the owner or
operator of any non-transportation-re-
lated onshore facility to prepare and
submit a facility response plan under
this section after considering the fac-
tors in paragraph (f>(2> of this section.
If such a determination is made, the
Regional Administrator shall notify
the facility owner or operator in writ-
ing and shall provide a basis for the de-
termination. If the Regional Adminis-
trator 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 facili-
ties to determine whether the facility
could, because of its location, reason-
ably be expected to cause significant
and substantial harm to the environ-
ment by discharging oil into or on the
navigable waters or adjoining shore-
lines.
(c) The Regional Administrator shall
determine whether a facility could, be-
cause of its location, reasonably be ex-
pected to cause significant and sub-
stantial 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 re-
sponse plan;
(2) Require amendments to any re-
sponse plan that does not meet the re-
quirements of this section:
«3) Approve any response plan that
meets the requirements of this section;
and
(4) Review each response plan peri-
odically thereafter on a schedule estab-
lished by the Regional Administrator
provided that the period between plan
reviews does not exceed five years.
(did) The owner or operator of a fa-
cility for which a response plan is re-
quired under this part shall revise and
42
-------
Environmental Protection Agency
§112.20
resubmit revised portions of the re-
sponse plan within 60 days of each fa-
cility change that materially may af-
fect the response to a worst case dis-
charge, including:
(i) A change in the facility's configu-
ration that materially alters the infor-
mation included in the response plan:
(lit A change in the type of oil han-
dled, stored, or transferred that mate
rially alters the required response re-
sources:
fiii) A material change in capabilities
of the oil spill removal organization!s>
that provide equipment and personnel
to respond to discharges of oil de-
scribed in paragraph (h)<5) of this sec-
tion:
(iv) A material change in the facili-
ty's spill prevention and response
equipment or emergency response pro-
cedures: and
(v) Any other changes that materi-
ally affect the implementation of the
response plan.
(2) Except as provided in paragraph
(d)il) of this section, amendments to
personnel and telephone number lists
included in the response plan and a
change in the oil spill removal organi-
zationis) that does not result in a ma-
terial change in support capabilities do
not require approval by the Regional
Administrator. Facility owners or op-
erators 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)(l) or
(d)(2) of this section shall provide the
EPA-issued facility identification num-
ber (where one has been assigned) with
the changes.
(4) The Regional Administrator shall
review for approval changes to a re-
sponse plan submitted pursuant to
paragraph (d)d) of this section for a fa-
cility determined pursuant to para-
graph (f)(3) of this section to have the
potential to cause significant and sub-
stantial harm to the environment.
tej If the owner or operator of a facil-
ity determines pursuant to paragraph
(a)(2) of this section that the facility
could not. because of its location, rea-
sonably be expected to cause substan-
tial harm to the environment by dis-
charging oil into or on the navigable
waters or adjoining shorelines, the
owner or operator shall Complete and
maintain at the facility the certifi-
cation form contained in Appendix C to
this part and. In the event an alter-
native formula that is comparable to
one contained in Appendix C to this
part is used to evaluate the criterion in
paragraph ifxlxii'xB) or (fiilKii'iC) of
this section, the owner or operator
shall attach documentation, to the cer-
tification form that demonstrates the
reliability and analytical soundness of
the comparable formula and shall no-
tify the Regional Administrator in
wilting that an alternative formula
was used.
ifx'l) A faeiiifv could, because of its
location, reasonably be expected to
cause substantial harm to the environ-
ment by discharging oil into or on the
navigable waters or adjoining shore-
lines pursuant to paragraph (ax2> of
this section, if i' meets any of the fol-
lowing criteria, applied in accordance
with the flowchart contained in At-
tachment C-I to Appendix C to this
part:
• i) The faciiiiy transfers oil over
water to or from vessels and has a total
oil storage capacity greater than or
equal to 42.000 gallons: or
iii) The facility's total oil storage ca-
pacity is greater than or equal to 1 mil-
lion gallons, and one of the following is
true:
(A) The facility does not have sec-
ondary containment for each above-
ground 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:
(Bi The facility is located at, a dis-
tance (as calculated using the appro-
priate formula in Appendix C to this
part or a comparable formula i such
that a discharge from the facility could
cause injury to fish and wildlife and
sensitive environments. For further de-
scription of fish and wildlife and sen-
sitive environments, see Appendices 1.
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
43
-------
§112.20
40 CFR Ch, 1 (7-1-04 Edition)
Area Contingency Plan prepared pursu-
ant to section 311
-------
Environmental Protection Agency
§112.20
to identify the location of the elements
listed in paragraphs (h)(2) through
('hj(IO) of this section. To meet the re-
quirements of this part, a response
plan shall address the following ele-
ments, as further described in Appen-
dix F to this part:
(1) Kmergcncy rt'.iponxv action plan
The response plan shall include an
emergency response action plan in the
formal, specified in paragraphs (hxlxi)
through (viii) of this section that is
maintained in the front of the response
plan, or as a separate document, accom-
panying the response plan, and that in-
cludes the following information:
(i) The identity and telephone num-
ber of a qualified individual having- full
authority, including' contracting au-
thority, to implement removal actions:
di) The identity of individuals or or-
ganizations to be contacted in the
event of a discharge so that immediate
communications between the qualified
individual identified in paragraph (hxl)
of this section and the appropriate Fed-
eral 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 re-
sponse equipment and its location:
(v) A description of response per-
sonnel capabilities, including the du-
ties of persons at the facility during a
response action and their response
times and qualifications:
(vi) Plans for evacuation of the facil-
ity and a reference to community evac-
uation plans, as appropriate:
(viii A description of immediate
measures to secure the source of the
discharge, and to provide adequate con-
tainment, and drainage of discharged
oil: and
(viii) A diagram of the facility.
(2) Facility information. The response
plan shall identify and discuss the loca-
tion and type cf the facility, the iden-
tity and tenure of the present owner
and operator, and the identity of the
qualified individual identified in para-
graph (h)(l) of this section.
(3) information about emergency re-
sponse. The response plan shall include:
(i) The identity of private personnel
and equipment necessary to remove to
trie maximum extent practicable a
worst case discharge and other cli-s-
cluirges of oil described in paiv.gro.ph
(hit5) of this -section, and to militate or
pi-event a substantial threat- of a worst
case discharge (To identify response re-
sources to meet the facility response
plan requirement* of this section, own-
ers or operators shall follow Appendix
B to this par: or. where not appro-
priate, shall clearly demonstrate in the
response plan why use of Appendix K of
this part is not appropriate at the fa-
cility and rnakr comparable arrange-
ments for response resources):
i ii) Kvidem e of contracts or other ap-
proved mean.-; for ensuring the avail-
ability of .such personnel and equip-
n^'iit:
(iii) The identity and the telephone
number of individuals or organizations
to be contacted in the event of a dis-
charge so that immediate communica-
tions between the qualified individual
identified in paragraph (hill) of this
section and the appropriate Federal of-
ficial and the persons providing re-
sponse 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 per-
sonnel capabilities, including the du-
ties of persons at the facility during a
response action and their response
times and qualifications:
(vi) A description of the facility's re-
sponse equipment, the location of the
equipment, and equipment testing:
mi) Plans for evacuation of the facil-
ity and a reference to community evac-
uation plans, as appropriate.
.'viii) A diagram of evacuation routes;
and
fix) A description of the duties of the
qualified individual identified in para-
graph (h)(l) of this section, that- in-
clude:
(A) Activate internal alarms and haz-
ard 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 re-
lease, as well as the other items needed
for notification;
45
-------
§112.20
40 CFR Ch. I (7-1-04 idition)
(D- Notify and pi'-jvidf iH'i:^h,<,ii ,• in-
formation to the appropriAt-j Federal.
State, and local authorities with des-
ignated response roles. Including tin-
National Response Center. .State Emer-
gency Response Commission, and Local
Emergency Planning- Committee:
(E) Assess the interaction of the dis-
charged 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
g-ases that may be generated, or the ef-
fects of any hazardous surface water
runoffs from water or chemical agents
used to control fire and heat-induced
explosion);
(G) Assess and implement prompt re-
moval actions to contain and remove
the substance released:
(Hi Coordinate rescue and response
actions as previously arranged with all
response personnel;
(I) Use authority to immediately ac-
cess company funding to initiate clean-
up activities: and
(J) Direct cleanup activities until
properly relieved of this responsibility.
(4) Hazard evaluation. The response
plan shall discuss the facility's known
or reasonably identifiable history of
discharges reportable under 40 CFR
part 110 for the entire life of tin- facil-
ity and shall identify areas within the
facility where discharges could occur
and what the potential effects of the
discharges would be on the affected en-
vironment. To assess the range of areas
potentially affected, owners or opera-
tors shall, where appropriate, consider
the distance calculated in paragraph
(f)(l)(ii) of this section to determine
whether a facility could, because of its
location, reasonably be expected to
cause substantial harm to the environ-
ment by discharging oil into or on the
navigable waters or adjoining- shore-
lines.
(5) Response planning levels. The re-
sponse plan shall include discussion of
specific planning scenarios for:
(it A worst case discharge, as cal-
culated using the appropriate work-
.-hs-ot in Appendix i.' to this part. In
rA~es where the Regional Adminis-
trator determines that the wortst case
-------
Environmental Protection Agency
§112.21
A description of the training' pro-
gram to be carried out under the re-
sponse plan as described in §112.21; and
(iv) Logs of discharge prevention
meetings, training sessions, and drills-
exercises. These logs may be main-
tained as an annex to the response
plan.
(9) Diagrams. The response plan shall
include site plan and drainage plan dia-
grams.
(10) Security systems. The response
plan shall include a description of fa-
cility security systems.
(11) Response, plan carer sheet. The re-
sponse plan shall include a completed
response plan cover sheet provided in
Section 2.0 of Appendix F to this part.
fi'KD In the event the owner or oper-
ator of a facility does not agree with
the Regional Administrator's deter-
mination that the facility could, be-
cause of its location, reasonably be ex-
pected to cause substantial harm or
significant and substantial harm to the
environment by discharging ojl 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 vol-
ume, the owner or operator may sub-
mit a request for reconsideration to
the Regional Administrator and pro-
vide additional information and data, in
writing to support the request. The re-
quest and accompanying- information
must be submitted to the Regional Ad-
ministrator within 60 days of receipt of
notice of the Regional Administrator's
original decision. The Regional Admin-
istrator shall consider the request and
render a decision as rapidly as prac-
ticable.
(2) In the event the owner or operator
of a facility believes a change in the fa-
cility's classification status is war-
ranted because of an unplanned event
or change in the facility's characteris-
tics (i.e.. substantial harm or signifi-
cant and substantial harm), the owner
01 operator may submit a request for
reconsideration to the Regional Ad-
ministrator and provide additional in-
formation and data in writing to sup-
port the request. The Regional Admin-
istrator shall consider the request and
render a decision as rapidly as prac-
ticable.
tji After a request for reconsider-
ation under paragraph i'i)d) or (i>(2) of
this section has been denied by the Re-
gional Adminlritrat-or. an owner or op-
erator 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 GO days of receipt of the
derision from the Regional Adminis-
trator that the request for reconsider-
ation was denied. A complete copy or
the appeal must be sent to the Re-
gional Administrator at the time the
appeal is made. The appeai shall con-
tain a clear and concise statement of
the issues and points of fact in the
case. It also may contain additional in-
formation from the owner or operator,
or from any -..-.ther person. The EPA Ad-
ministrator may request additional in-
formation from the owner or operator.
or from any other person. The EPA Ad-
ministrator shall render a decision as
rapidly as practicable and shall notify
the owner or operator of the decision.
§112.21 Facility response training and
drills/exercises.
i a) The owner or operator of any fa-
cility required to prepare a facility re-
sponse 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 re-
sponse plan as provided in §112.201) The owner or operator shall be re-
sponsible for the proper instruction of
facility personnel in the procedures to
respond to discharges of oil and in ap-
plicable oil spill response laws, rules,
and regulations.
-------
Pt. 112, App. A
40 CFR Ch. I (7-1-04 Edition)
(2) Training shall be functional in na-
ture according' to job tasks for both su-
pervisory and non-supervisory oper-
ational personnel.
(3) Trainers shall develop specific les-
son plans on subject areas relevant to
facility personnel involved in oil spill
response and cleanup.
(c) The facility owner or operator
shall develop a program of facility re-
sponse drills/exercises, including eval-
uation procedures. A program that fol-
lows the National Preparedness for Re-
sponse Exercise Program (PREP) isee
Appendix E to this part, section 13. for
availability) will be deemed satisfac-
tory for purposes of this section. An al-
ternative program can also be accept-
able subject to approval by the Re-
gional Administrator,
[59 FR 34101. July 1. 1994. as amended at 65
FR 40798, June 30, 2000]
APPKXDIX A TO PART 112—MKMOBANDUM
OF UNDERSTANDING BKTWKKN THK
SECRETARY OF TRANSPORTATION AND
THK ADMINISTRATOR. OF THK ENVI-
RONMENTAL PROTKCTION AGKNCY
The Environmental Protection Agency and
the Department of Transportation agree that
for the purposes of Executive Order 11548. the
term:
(1! Non-transportation-rflated 'inshore and
offshore futilities means;
(A) Fixed onshore and offshore oil well
drilling facilities including- all equipment
and appurtenances related thereto used in
drilling operations for exploratory or devel-
opment wells, but excluding any terminal fa-
cility, unit or process integrally associated
with the handling' or transferring' of oil in
bulk to or from a vessel.
(B) Mobile onshore and offsliuie oil well
drilling platforms, barges, trucks, or other
mobile facilities including all equipment and
appurtenances related thereto when such
nioliile facilities are fixed in position for the
purpose of drilling operations for exploratory
or development wells, but excluding any ter-
minal facility, unit- or process integrally as-
sociated with the handling or transferring of
oil in bulk to or from a vessel.
(.C) Fixed onshore and offshore oil produc-
tion 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 produc-
tion 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, ur.it or process integrally
associated with the handling or transferring
of oi! in bulk to or from a vessel.
(E) Oil refining1 facilities including all
equipment and appurtenances related there-
to as well as in-plant- processing units, stor-
age 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.
(Ft Oil storage facilities including all
equipment and appurtenances related there-
to as well as fixed bulk plant storage, ter-
minal oil storage facilities, consumer stor-
age, pumps and drainage systems used in the
storage of oil. but excluding inline or break-
out storage tanks needed for the continuous
operation of a pipeline system and any ter-
minal facility, unit or process integrally as-
sociated with the handling or transferring of
oil in bulk to or from a vessel.
(Gi Industrial, commercial, agricultural or
public facilities which use and store oil, but-
excluding any terminal facility, unit or proc-
ess integrally associated with the handling
or transferring- of oil in hulk 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.
d! Loading racks, transfer hoses, loading
arms and other equipment which are appur-
tenant, to a nontransportation-related facil-
ity or terminal facility and which are used
to transfer oi! in bulk to or from highway ve-
hicles or railroad cars.
i'J) Highway vehicles and railroad cars
which are used for the transport of oil exclu-
sively within the confines of a nontrans-
portation-related facility and which are not
intended to transport oil in interstate or
intrastate commerce.
lK) Pipeline systems which are used for the
transport of oil exclusively within the con-
fines of a, nontransportation-related facility
48
-------
Environmental Protection Agency
Pt. 112, App. B
.H' terminal lacility and which are not in-
cended to transport oil in interstate or intra-
•?tate commerce, but, excluding' pipeline sys-
tems used to transfer oil in bulk to or from
i vessel.
{.2i Tianxportutiim-rt'iatt'ii onshore, and rni-
•ilioi'f t'w.iiitics means;
(A) Onshore and offshore terminal facili-
ties iiiohiding' transfer hoses, loading' arms
and other equipment and appurtenances used
for the purpose of handling; or transferring
oil in hulk to or from a vessel aa well as slor-
.•is?e tanks and appurtenances for the rec.fip-
tion of oily ballast water or tank washings
from vessels, but axcludmg terminal waste
treatment facilities and terminal oil storage
facilities.
(B< Transfer hoses, loading arms and other
equipment appurtenant to a aon-transpor-
tation-related facility which is used ».o trans-
fer oil in bulk to or from a vessel.
iC) Interstate and intrastate onshore aiid
offshore pipeline system;' including pump*
and appurtenances related thereto as well .is
in-line cr breakout storage tanks needed for
the continuous operation of a pipeline sys-
tem, and pipeline;; from onshore and offshore
oil production facilities, but excluding on-
shore and offshore piping from vellueads to
oil separators and pipelines which are used
for the transport of oil exclusively within
the confines of a nontransport-ation-relat-ed
facility or terminal facility and which are
not. intended to transport oil in interstate or
intrasfate commerce or to transfer oil in
bulk to or from a vessel.
(D» Highway vehicles and railroad ear*
which are used for the transport of oil in
interstate or intrastate commerce and the
equipment and appurtenances related there-
to, and equipment used for the fueling' of lo-
comotive units, as well as the rig'hts-of-way
on which they operate. Excluded are high-
way vehicles and railroad cars and motive
power used exclusively within the confines of
a nontransportation-related facility or ter-
minal facility and which are not intended for
use in iru-erstate or intrastate commerce.
APPENDIX B TO PART 112—MKMOKANDCM
OF UNDERSTANDING AMONG THE SEC-
RETARY OF THK INTERIOR, sr.c--
KETAHY OF TRANSPORTATION. AND
ADMINISTRATOR OF THE ENVIRON-
MENTAL PROTECTION AGENCY
This Memorandum of Understanding
i MOO) establishes the jurisdictional >f-*pon-
sibilii-ies for offshore facilities, including
pipelined, pursuant to section 311 fjXliic).
(j)(5). and (j)(6)(A> of the Clean Water Act
!CWA). as amended by the Oif Pollution Act
of 1990 (Public Law 10.1-380). The Secretary ol
trie Department of the Interior (DOI>, Sec-
retary ol the Department of Transportation
i DOT), and Administrator of the Environ-
meiral Protection Agency (EPA) agree to
the division of responsibilities set forth
below for spill prevention and control, re-
sponse planning, and equipment inspection
activities pursuant to those provisions.
Executive Order '.E.G.; 12777 (36 FK .V175T)
delegates to DO1, DOT. and KPA various re-
sponsibilities identified in section Sllij) of
the CVVA. Sections 2(13X31. 2(d)(3). and L!«.>x3>
of F..O. 12777 assigned to DOI spill prevention
and control, eonfting'eney planning', and
e.'iiupment inspection activities assoi inted
wilh offshore facilities. Section SIKahlli de-
fin*-> the term "offshore facility" to include
I'aclHties of any kind located in. on, or under
nav.tfatile waters of the United States. By
usiiijj '.his definition, the traditional DOI
rol-'- of reg'ul;U'ing' facilities on the Outer
Conrinental tJhelf is expanded by E.O 12777
to include inland lakes, rivers, streams, and
anv other inland vvMtr-rs,
Pursuant to section 2ii) of lii.O. 1277,. DOt
widelcigates, and EPA and DOT agree to as-
sume, the functions vested in DOI i>y sec-
tion,-. 2fb>(3), 2id)i3). and 2(en3) of E.O. 1.277"
as .ss-t forth below. For purpose.-', of this MOU.
the term "coast HUP" shall be defined as in
thr- Submerged Lands Act (43 f.a.C. 1301ic))
to rneaii "the line of ordinary low water
aloim 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 redelegat.es responsibility
for non-transportation-related offshore fa-
cilities located landward of the coast linp.
2. To DOT. DOI redelegat.es responsibility
for transportation-related facilities, includ-
ing1 pipelines, located landward of the coast.
line. The DOT retains jurisdiction for deep-
water ports a ad their associated seaward
pipelines, as delegated by E.O. 12777.
3 The DOI retains jurisdiction over facili-
ties, including' pipelines, located seaward of
the coast line, except for deepwafer ports
and associated seaward pipelines delegated
by K O. 12777 to DOT,
E:'Tt:rr:vK DATK
1. The DOI. DOT. and EPA may agree in
writing to exceptions to this MOU on a facil-
ity-specific basis. Affected parties will re-
ceive notification of the exceptions.
2, Nothing in this MOU is intended : o re-
place, supersede, or modify any existing
agreements between or among" DOI. DOT. or
EPA.
49
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Pt. 112, App. C
40CFRCh. I (7-1-04 Edition)
MODIFICATION AND TERMINATION
Any party to this agreement may propose
modifications by submitting them in writing
to the heads of the other agency department
No modification may be adopted except with
the consent of all parties. All parties shall
indicate their consent to or disagreement.
with any proposed modification within 60
days of receipt. Upon the request of any
party, representatives of all parties shall
meet for the purpose of considering excep-
tions or modifications to this agreement.
This MOU may be terminated only with the
mutual consent of all parties.
Dated: November 8. 1993.
Bruce Babbitt.
Secretary of I lie Interim .
Dated: December 14. 1993.
Federico Pena.
Secretary of Transportation.
Dated: February 3. 1994.
Carol M. Browner.
Administrulor, K'icinir»nentul Protection
Agency.
[59 FR 34102. July 1. 1994 ]
APPENDIX C TO PA in' 112--- SUBSTANTIAL
HARM CKITKRIA
1.0 Introduction
The flowchart provided in Attachment C I
to this appendix shows the decision tree with
the criteria to identify whether a. facility
"could reasonably be expected to cause sub-
stantial harm to the environment by dis-
charging into or on the navigable waters or
adjoining shorelines." In addition, the Re-
gional Administrator has the discretion to
identify facilities that must prepare and sub-
mit facility-specific response plans to EPA.
l.l Definitions
1.1.1 Great Lakes means Lakes Superior.
Michigan. Huron. Erie, and Ontario, their
connecting and tributary waters, the Saint
Lawrence River as far as Saint Regis, and
adjacent port areas.
1.1.2 Higher Volume Port Ar<-
-------
•nvironmental Protection Agency
Pt. 112, App. C
nillion gallons must submit its response
)lan if it is located at a distance such that
t discharge from the facility could cause in
ury (as defined at 40 OFR 112.2) to fish and
•vilcilife and sensitive environments. For fur-
her description of fish and wildlife and sen-
sitive environments, see Appendices I. II. and
II to DOCNOAA's "Guidance for Facility
ind Vessel Response Plans: Fish and Wildiil'e
ind Sensitive Environments" (see Appendix
3 to this part, section 13. for availability)
:u:m the applicable Area Contingency Plan.
Facility owners or operators must determine
:;he distance a,t which an oil discharge could
•ause injury to fish and wildlife and sen-
^itive environments using" the appropriate;
formula presented in Attachment C-II.I to
;his appendix or a comparable formula.
~2A Prcnimity to Public Drinking Water In-
takes ill Facilities with a Total Oil Storage (.'«-
oaf.ity Grcatf> than or Equal to 1 Million -
'';??v A facility with a total oil storage ca-
pacity greater than or equal to 1 million gal-
lons must submit its response plan if it is k"
oated at a distance such that a discharge
from the facility would shut, clown a public
drinking water intake, which is analogous to
a public water system as described til -10 C'FU
143.2'cci. The distance at which an oil dis-
charge from an SPCO-regulated facility
would shut down a pubiu drinking' water in-
take shall be calculated using the appro-
priate formula presented in Attachment C-
III to this appendix or a comparable formula.
2.5 I-'acilitifs That Hare Experienced Report-
ii-hlf Oii DUchary.e* in ait Amount. Greater Than
or Equal a.i 10,000 Gallons \\'it'nn Hn- Fax! .5
'i>.:ar.s and Chat Have a Total Oil Stmayt: ("«-
pwi!i/ Gn'atcf Than f>r Kqual to I Milliii'i Gai-
Imis A facility's oil spill history within the
past 3 years shall be considered in the eval-
uation for substantial harm. Any facility
with a total oil storage capacity greater
than or equal lo ! million uallons thu! has
experienced a report able oil discharge in an
amount greatoi than or equal to 10.000 sal-
Ions within the pas' 5 years must submit a
response plan in KPA.
II the i'aci'itv do-'" not meet the substan-
tial harm crilena Ust-ed ii; Aua.chrnent 0-1
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 alter-
native formula that is comparable to the one
in this appendix is used to evaluate the sub-
stantial harm criteria, the owner or operator
s~i:Al\ attach documentation to the tvTtiii
ctiUon form that demonstrates the reli-
ability and analytical soundness of the com-
parable1 formula and shall notify the Re-
gional Administrator in writ.it:!.' that an al-
ternative fcrm'iiia was used.
Chow-. V.T. 19n9 Open Channel Hydiuulics.
McGraw Hill.
USCG IFR '5H FK 7353. Fabruary r.. 1993).
This document is available throuHh EPA's
rulernaKins docket as. nou-d in Appendix E to
this part, .section 1;:
51
-------
Pt. 112, App. C
40 CFR Ch, I (7-1-04 Edition)
Attachment C-l
Flowchart of Criteria for Substantial Harm
i'Kx-s the; facilirv transfer oi -\IT
\v
ihf tacilkv have u u>Uti till
storage capacifv greater !!K;H aboveuround storage umk area.
Jue-ilhc fdttliu lack .seconder)
i-onlamtneijt '.hat is fiufficiuntly large lu
Ci«v,aiii the citpaciiy of the larger
ahinciiruund oil sts>rage sank pkis
^nOkicnt freeboard to alJon tor
Yes
No Submittal of Response Plan
Except at RA Discretion
1 Calculated using the appropriate formula in Attachment (.'-III to this appendix or a comparable
formula.
• For further description offish and wildlife and sensitive en\ ironments. sec Appendices l.II. and
IH 10 DOC'NOAA's "Guidance tor Fanlit) and vessel ropunse Plans: Fish and Wildlife and
Sensitive Environments" (5<» I;R 14711 Maah 2V. 19()4i and the applicable Area t ontingeney
Flan,
' Public drinking water intakes are anuliiyou;; to puhlit water .v.'stems us described at CI-'R
52
-------
Environmental Protection Agency
Pf. 112, App. C
Vn'A<-!t.M!:N'r C-II- -Cn
I'l.ri'.Msii. r"> ot' 'mi:
T'KK'ATIOX OF 'HI!-. Ai>-
BSTANTIAL HARM r;;i-
RMci',it-.Y Name:
Facility Address:
1. Does the facility transfer oil ovtr wafer
,o or from vessels and does the facility h-:',e
'i total oil storag-e capacity greater than ••!'
:!f;ual t-O 12.000 '.rtJlOUS?
Vfr.-. NO
'£. Does Uie facility have a total oil storaaf
capacity greater than or equal to 1 million
snilloriN and does the facility lack secondary
>:;on*ainmeiit that is sufficiently large to
contain the capacity o! the largest above-
ground oil storage tank plus sufficient
freeboard to allow for precipitation within
any abovegiound oil storage tank area?
Yes No
3, Does tha facility have a total oil storage
capacity greater than or equal to 1 million
gallons and IK the facility located at a dis-
tance (as. calculated using the appropriate
formula in Attachment. C-1II to this appen-
dix or a comparable formula1) such that a
discharge from the facility could cause in-
jury to fish and wildlife and sensitive envi-
ronments? For further description of fish and
wildlife and sensitive environments, see Ap-
pendices I. II. and 111 to DOC NCAA's "Guid-
ance lor Facility and Vessel Response Plans:
Pish and Wildlife and Sensitive Environ-
ments" (see Appendix E to this part, section
13. for availability) and the applicable Area
Contingency Plan.
Yes No
4. Does the facility have a total oil storage
capacity greater than or equal to 1 million
gallons and is the facility located at a dis-
tance (as calculated using" the appropriate
formula in Attachment C-III to this appendix
or a comparable formula ' ) such that a dis-
charge from the facility would shut, down a
public drinking water intake-5?
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 re-
portable oil discharge in an amount great er
than or equal to 10.000 gallons within the last
5 veara?
Yes No
Certification
1 certify under penalty of law that I have
personally examined and am familiar with
the information submitted in this document.
1 If a comparable formula is used, docu-
mentation of the reliability and analytical
soundness of the comparable formula must
be attached to this form.
-For the purposes of 40 OFR part 112, pub-
lic drinking water intakes are analogous to
public water systems as described at 40 CFR
143.2(0.
;u:-i thiit bast-i mi ii'i,\' iri'iuiry of tho;-f incli •
viduals respon.-iblf i.'oi obtaining this :r;ior
mat ion. I bcliev^ thai the submitted infor-
mation in true arcmviH', anil complete
hr-nai urtj
IN a. i lie '.please '.vpe or print i
Ti'Srt
1 1 The facilKy -"nviier or operator must
evaluate whether the facility is located at a
distance such that a discharge from the fa-
cility could cause iujurv to fish and wildlife
and sensitive environments or disrupt oper-
ations at a public drinking- water intake. To
quantify that distance. EPA considered oil
transport mechanisms over land and or. still,
tidal influence, and moving navigable wa-
ters. EPA has determined that the primary
concern for calculation of a planning dis-
tance is the transport of oil in navigable wa-
ters 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 ori 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 re-
sources. The still water formula accounts for
the spread of discharged oil over the surface
of the water. The method f.o determine oil
transport on lirtal 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
tidai influence.
1 2 EPA's formulas were designed to be
simple to use. However, facility owners 01
operators may calculate planning distances
using' more sophisticated formulas, which
take into account- broader scientific or engi-
neering' 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
coiuparuble to one contained in this Appen-
dix is used to evaluate the criterion in 40
CB'H il2.20(.f)!li(Ii)(Bi or (f)(l)iii)(C). the
owner or operator shall attach documenta-
tion to the response plan cover sheet con-
tained In Appendix F to this part that dem-
onstrates the reliability and analytical
soundness of the alternative formula and
shall notify the Regional Administrator in
53
-------
Pt. 112, App. C
40 CFR Cn. i (7-1-04 Edition)
1.3 A regulated t';>< :lirv :ii;o ;?;>-et tii..- cri-
teria Tor the potential TO cans*-- sul'Mant bil
harm to the cnvironnu-i-i \viiiii.i.:t having to
periorm a planning instance <. ,\!cu!;;tion. Foi
facilities that meet the substantial harm cri-
teria because of inadequate set.-onciary con-
tainment or oil spill history, a.- listed in. tin
flowchart in Attachment C-I to this appen-
dix, calculation of the planning distance? is
unnecessary. For facilities that do not meet
the substantial harm criteria for .>ec:ondary
containment or oil spill history -is listed in
the flowchart, calculation of a planning, dis-
tance for proximity to fish and wildlife and
sensitive environments and public drinking
water intakes is required, unles:-' it is nle.tr
without performing the calcuia: ;-m (e.g.. the
facility is located in a wetland: that these
areas would be impacted.
1.4 A facility owner or operator who must
perform a planning- distance calculation on
navigable water is only required to do so for
the type of navigable water conditions (i.e..
moving water, still water, or tidal- influ-
enced water! applicable to the facility. If a
facility owner or operator determine."; that
more than one type of navigable water condi-
tion applies, then the facility owner or oper-
ator is required to perform a planning' dis-
tance calculation for each navigable water
type to determine the greatest single dis-
tance that oil may be transported. As a re-
sult, the final planning distance for oil
transport on water shall be the greatest indi-
vidual distance rather than a summation of
each calculated planning' distance.
1.5 The planning distance formula for
transport on moving waterways contains
three variables: the velocity of the navigable
water (v). the response time interval (t). and
a conversion factor (c). The velocity, v. is de-
termined by using- the Chezy-Manning equa-
tion, which, in this case, models the flood
flow rate of water in open channels. The
Chezy-Manning equation contains three vari-
ables which must be determined by facility
owners or operators. Manning's Roughness
'For persistent oils or non-persistent, oils.
a worst case trajectory model (i.e.. an alter-
native formula) may be substituted for the
distance formulas described in still, moving'.
and tidal waters, subject to Regional Admin-
istrator's review of the model. An example of
an alternative formula that is comparable to
the one contained in this appendix would be
a worst case trajectory calculation based on
credible adverse winds, currents, and or river
stages, over a range of seasons, weather con-
ditions, and river stages. Based on historical
information or a spill trajectory model, the
Agency may require that additional fish and
wildlife and sensitive environments or public
drinking water intakes also be protected
C'oHTi-.-ien; <'o; ;ii.x>d i'lov: rates--, n. can be
,[e!.-i nuned from Tabli- 1 .-jf fhi.- attachment.
The h.\ Inniiit ra-Hu.-. r. i .-r-. 'a- --?t imate.l
-.i.-iti^ .he avert?'''.' mid-char.!1.':' depth from
chart;- provided !>.v lhi- ^eurces listed in
Table - of thi-; attachment. The aveiage
slope uf the river, s. can be determine;! using
topographic maps that can be or-leted from
the T'.S. Geologica! Survey, ^s listed in
Table 2 of this attachment.
1.6 Table 3 of this attachment contains
specified time intervals for estimating the
arrival of response resources at the scene cf
a discharge. Assuming no prior planning, re-
sponse resources should be able to arrive at
the discharge site within 12 hours of the dis-
covery of any oil discharge in Higher Volume
Port Areas a.nd within 24 hours in Great
Lakes and all other river, canal, inland, and
nearshore areas. The specified time intervals
in TaHe 3 of Appendix C are to be used only
to aid in the identification of whether a fa-
cility 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 re-
source levels and response times. The speci-
fied 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.
- 0 Oil Transport an Moving Xaviyuhle Waters
2.1 The facility owner or operator must
use the following formula or a comparable
formula as described in §112.^0(a)(3i to cal-
culate the planning distance for oil transport
on moving navigable water:
d=v> txc: where
d: the distance downstream from a facility
within which fish and wildlife and sensitive
environments could be injured or a public
drinking water intake would be shut down
in the event of an oil discharge (in miles);
v: the velocity of the river navigable water of
concern (in ft sec) as determined by Chezy-
Manning's equation (see below and Tables 1
and 2 of this attachment):
t: the time interval specified in Table 3 based
upon the type of water body and location
(in hours): and
c: constant conversion factor 0.68 secoi mile
hnn ft (3600 sec hr -s-5280 ft mile.1
2.2 Chezy-Manning's equation is used to de-
termine velocity:
v=1.5 nxr-'-iixs1'.:; where
v=the velocity of the river of concern (in ft
sec):
n=Mann.in£'s Roughness Coefficient from
Table 1 of this attachment:
r-the hydraulic radius: the hydraulic radius
can be approximated for parabolic chan-
nels by multiplying the average mid-chan-
nel depth of the river [in feet) by 0.667
54
-------
Environmental Protection Agency
Pt. 112, App. C
iiioiiives for ybt-nmins the mM-f'hamir'i
depth are listed in Table 2 of this atM./h-
tnent i: and
s=the average .slope of the river (unlMesss ob-
tained from U.S. Geological Survey topo-
graphic maps at the address listed in Table
2 of this attachment.
TABLE 1—MANNING'S ROUGHNESS COEFFICIENT
FOR NATURAL STREAMS
[NOTF Coefficients are presented for high flow rates at or
near flood stage.]
Stream description
Minor Streams (Top Width <100 ft.)
Clean:
Straight
Winding
Sluggish (Weedy, deep pools):
No trees or brush
Trees and/or brush
Major Streams (Top Width >100 ft)
Regular section
(No boulders/brush)
Irregular section:
(Brush)
Rough-
ness co-
efficient
in)
003
0 04
0.06
0.10
0035
005
TABLE 2—SOURCES OF K AND ,s FOR THE CHKZV-
MANNING EQUATION
All of the charts and related publications for
navigational waters may be ordered from:
Distribution Branch
CN/CG33)
National Ocean Service
Riverdale. Maryland 20737-1199
Phone: (301) 436-6990
There will be a charge for materials ordered
and a VISA or Mastercard will be accepted.
The mid-channel depth to be used in the cal-
culation of the hydraulic radius (r) can be
obtained directly from the following sources:
Charts of Canadian Coastal and Great Lakes
Waters:
Canadian Hydrographic Service
Department of Fisheries and Oceans Insti-
tute
P.O. Box 8060
1675 Russell Road
Ottawa, Ontario KIG 3H6
Canada
Phone: (613) 998-1931
Charts and Maps of Lower Mississippi River
(Gulf of Mexico to Ohio River and St.
Francis. White. Big' Sunflower.
Atchafalaya, and other rivers):
U.S. Army Corps of Engineers
Vicksburg District
P.O. Box 60
Vicksburg', Mississippi 39180
Phone: (601) 634-5000
Charts of Upper Mississippi River and Illi-
nois Waterway to Lake Michigan:
U.S. Army Corps of Engineers
Rock Island District
P.O. Box 2004
R-:vk I.siand. Illinois 61204
Phi.ne: (809) 79.! 5552
Charts of Missouri River:
U.S. Army Corps of Engineers
Omaha District
601-1 U.S. Post Office and Courthouse
Omaha. Nebraska fi8102
Phone: (402) 221 3900
Charts of Ohio River:
U.S. Army Corps of Engineers
Ohio River Division
P.O. Box 1159
Cincinnati. Ohio 45201
Phone: (513) 684-3002
Charts of Tennessee Valley Authority Res-
ervoirs, Tennessee River and Tributaries:
Tennessee Valley Authority
Maps and Engineering Section
416 Union Avenue
Knoxville, Tennessee 37902
Phone: (615) 632 2921
Charts of Black Warrior River. Alabama
River. Tombigbee River. Apalachicola
River and Pearl River:
U.S. Army Corps of Engineers
Mobile District
P.O. Box 2288
Mobile. Alabama 36628 -0001
Phone: (205) 690-2511
The average slope of the river (si may be ob-
tained from topographic maps:
U.S. Geological Survey
Map Distribution
Federal Center
Bldg. 41
Box 25286
Denver, Colorado 80225
Additional information can be obtained from
the following sources:
1. The State's Department of Natural Re-
sources (DNR) or the State's Aids to Navi-
gation office:
2. A knowledgeable local marina operator: or
3. A knowledgeable local water authority
(e.g., State water commission)
2.3 The average slope of the river (s) can
be determined from the topographic maps
using- the following steps:
(1) Locate the facility on the map.
(2) Find the Normal Pool Elevation at the
point of discharge from the facility into the
water (A).
(3) Find the Normal Pool Elevation of the
public drinking water intake or fish and
wildlife and sensitive environment located
downstream (B) (Note: The owner or oper-
ator should use a minimum of 20 miles down-
stream as a cutofi 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 fa-
cility (A). Determine the elevation of the
55
203-159 D-3
-------
Pt. 112, App. C
40CFRCh. I (7-1-04 Edition)
water at the appropriate distance down-
stream (B). The formula presented below can
be used to calculate the slope.
(5) Determine the distance (in miles) be-
tween the facility and the public drinking
water intake or fish and wildlife and sen-
sitive environments (C).
(6) Use the following formula to find the
slope, which will be a unitless value: Average
Slope=[(A-B) (ft),C (miles)J x LI mile 5280
feet]
2.4 If it is not feasible to determine the
slope and mid-channel depth by the Chezy-
Manning equation, then the river velocity
can be approximated on- site. A specific
length, such as 100 feet, can be marked off
along: the shoreline. A float can be dropped
into the stream above the mark, and the
time required for the float to travel the dis-
tance 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 addi-
tion, 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 ac-
curate estimate of the surface water velocity
under adverse weather conditions.
2.5 The planning distance calculations for
moving and still navigable waters are based
on worst case discharges of persistent oils.
Persistent oils are of concern because they
can remain in the water for significant peri-
ods 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 cal-
culation for moving navigable waters. Facili-
ties that will meet this substantial harm cri-
terion 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 quan-
tity to cause injury to fish and wildlife and
sensitive environments or shut down a public
drinking water intake. While owners or oper-
ators of transfer facilities that store greater
than or equal to 42,000 gallons are not re-
quired to use a planning distance formula for
purposes of the substantial harm criteria.
they should use a planning distance calcula-
tion in the development of facility-specific
response plans.
TABLE 3—SPECIFIED TIME INTERVALS
TABLE 3—SPECIFIED TIME INTERVALS—
Continued
Operating
areas
Higher volume
port area.
Great Lakes ...
Substantial harm planning time (hrs)
Operating
areas
Substantial harm planning time (hrs)
All other rivers j 24 hour arrival+3 hour deployment=27
arid canals, j hours
inland, and j
nearshore
areas.
12 hour arrival+3 hour deployments 5
hours.
24 hour arrival+3 hour deployment=27
hours.
2.6 Example of the Planning Distance Cal-
culation for Oil Transport on Moving .\'avigabl<>
Wuturs. The following example provides a
sample calculation using the planning dis-
tance formula for a facility discharging oil
into the Monongahela River:
ill Solve for v by evaluating n, r. and s for
the Chezy-Manning equation:
Find the roughness coefficient, n. on Table
1 of this attachment for a regular section of
a major stream with a top width greater
than 100 feet. The top width of the river can
be found from the topographic map.
n=0.035.
Find slope, s. where A=727 feet. B=710 feet,
and C=25 miles.
Solving:
s=[(727 ft-1710 ftl'25 miles]x[l mile 5280
feet]=1.3xlO-t
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 in-
take or the fish or wildlife or sensitive envi-
ronment (or 20 miles downstream if applica-
ble). This value is multiplied by 0.667 to ob-
tain the hydraulic radius. The mid-channel
depth is found by obtaining values for r and
s from the sources shown in Table 2 for the
Monongahela River.
Solving:
r=0.667x20 feet=13.33 feet
Solve for v using:
V--1.5 nxr3/1xs"~:
v=[1.5 0.035]x(13.33)2"x(1.3xlO-')!'-
v=2.73 feet/second
(2) Find t from Table 3 of this attachment.
The Monongahela River's resource response
time is 27 hours.
(3) Solve for planning distance, d:
d=vxtxc
d=(2.73 ftsec)x(27 hours!x(0.68 secco mile.hrw
ft)
d=50 miles
Therefore, 50 miles downstream is the appro-
priate planning distance for this facility.
3.0 Oil Transport on Still Water
3.1 For bodies of water including lakes or
ponds that do not have a measurable veloc-
ity, 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
56
-------
Environmental Protection Agency
Pt. 112, App. C
the planning distance. If a comparable for-
mula is used, documentation of the reli-
ability and analytical soundness of the com-
parable calculation must be attached to the
response plan cover sheet,
3.2 Example of the Planning Distance Cal-
culation for Oil Transport on Still Water, To as-
sist those facilities which could potentially
discharge into a still body of water, the fol-
lowing analysis was performed to provide an
example of the type of formula that may he
used to calculate the planning distance. For
this example, a worst case discharge of
2,000,000 gallons is used.
(1) The surface area in square feet covered
by an oil dischargee on still water. Al, can be
determined by the following formula.2 where
V is the volume of the discharge in gallons
and C Is a constant conversion factor:
A^lOWfcixC
C=0.1643
A,=105x(2,000.000 gallons i:i--ix(0. 1643)
A,=8,74xlOK ft-
(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 direc-
tions, 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 eircle=t 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
Solving for the radius, r, using the relation-
ship A,=A2: 8.74x10* ft:=it').2
Therefore, 1-23.586 ft
r=23.586 ft*5.280 ft;mile=4.5 miles
Assuming a 20 knot wind under storm condi-
tions:
1 knot=1.15 miles/hour
20 knotsxl.15 mile&hoiir,-'knot=23 miles/hr
Assuming that the oil slick moves at 3 per-
cent of the wind's speed:3
23 miles hourxO. 03=0. 69 rniles'hour
(5) To estimate the distance that the oil
will travel, use the times required for re-
sponse resources to arrive at different geo-
graphic locations as shown in Table 3 of this
attachment,
For example:
J Huang. J.C. and Monastero. F.C.. 1982. Kc-
view of the State-nf-the-Art of Oil Pollution
Models. Final report submitted to the Amer-
ican Petroleum Institute by Raytheon Ocean
Systems, Co., East Providence, Rhode Island,
3Oil Spill Prevention & Control, National
Spill Control School, Corpus Christi State
University, Thirteenth Edition, May 1990.
For Higher Volume Port Areas: 15 hrsxO.69
rniles/hr=10.4 miles
For Great Lakes and all other areas: 27
hrsxO.69 miles.'hi—18.6 miles
:6> The total distance that the oil will
travel from the point of discharge, including
the distance due to spreading, is calculated
as follows:
Higher Volume Port Areas: d=10.4+4.5 miles
or approximately 15 miles
Great Lakes and all other areas: d=18.6+4.5
miles or approximately 23 miles
1.0 Oil Transport on Tidal-Influence Areas
4.1 The planning distance method for
tidal influence navigable water is based on
worst case discharges of persistent and non-
persistent oils. Persistent oils are of primary
concern because they can potentially cause
harm over a greater distance. For persistent
oils discharged into tidal waters, the plan-
ning- distance is 15 miles from the facility
down current during- ebb tide and to the
point of maximum tidal influence or 15
miles, whichever is less, during- flood tide.
4.2 For non-persistent oils discharged into
tidal waters, the planning distance is 5 miles
from the facility down current during ebb
tide and to the point of maximum tidal influ-
ence or 5 miles, whichever is less, during
flood tide.
4.3 Emmplu of Detfrmininc/ the Planning
Distance for Two Types of Navigable Waler
C">iditim$, Below is an example of how to de-
termine the proper planning" distance when a
facility could impact two types of navigable
water conditions: moving- water and tidal
water.
;li 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 feefc
second from the Chezy-Maiming equation
used to calculate oil transport on moving-
navigable waters. The specified time inter-
val, t. obtained from Table 3 of this attach-
ment for river areas is 2? hours. Therefore.
solving- for the planning distance, d:
d=vxtxc
d=i0.5 ft'sec; )xi 27 hours )x(0.68 secmile hrft)
d=
-------
Pt. 112, App. C
40 CFR Ch. I (7-1-04 EdiHon)
waters via open channel flow or from sheet
flow across the land, or be prevented from
reaching navigable waters when trapped in
natural or man-made depressions excluding'
secondary containment structures,
5.2 As discharged oil travels over land, it
may enter a storm drain or open concrete
channel intended for drainage. It is assumed
that once oil reaches such an inlet, it. will
flow into the, receiving' navigable water. Dur-
ing 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 rang'es listed
below reflect minimum and maximum ve-
locities used as design criteria/1 The calcula-
tion below demonstrates that the time re-
quired for oil to travel through a storm drain
or open concrete channel to navigable water
is negligible and can be considered instanta-
neous. The velocities are;
For open concrete channels:
maximum velocity=25 feet per second
minimum velocity=3 feet per second
For storm drains:
maximum velocity=25 feet per second
minimum velooity=2 feet per second
5.3 Assuming a length of 0.5 mile from the
point of discharge through an open concrete
channel or concrete storm drain to a navi-
gable water, the travel times (distance- veloc-
ity ) are;
1.8 minutes at a velocity of 25 feet per second
14.7 minutes at a velocity of 3 feet per second
22.0 minutes for at a velocity of 2 feet per
second
5.4 The distances that shall lie considered
to determine the planning distance are illus-
trated in Figure C-I of this attachment. The
relevant distances can be described as fol-
lows:
Dl=Distance from the nearest opportunity
for discharge, X ,. to a storm drain or an
open concrete channel leading to navigable
water.
D2=Distance through the storm drain or
open concrete channel to navigable water.
DS^Distance downstream from the outfall
within which fish and wildlife and sensitive
''The design velocities were obtained from
Howard County. Maryland Department of
Public Works' Storm Drainage Design Man-
ual.
environments could be injured or a public
drinking water intake would be shut down
as determined by the planning distance
formula.
D4=Distanee from the nearest opportunity
for discharge, X.-, to fish and wildlife and
sensitive environments not bordering navi-
gable water.
5.5 A facility owner or operator whose
nearest opportunity for discharge is located
within 0.5 mile of a navigable water must
complete the planning distance calculation
(D3i for the type of navigable water near the
facility or use a comparable formula,
5.6 A facility that is located at a distance
greater than 0,5 mile from a navigable water
must also calculate a planning distance (D3)
if it is in close proximity (i.e.. Dl is loss 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 con-
sidered 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 distribu-
tion 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 Dl is less
than or equal to 0,5 mile, a discharge from
the facility could pose substantial harm be-
cause the time to travel the distance from
the storm drain to the navigable water (D2)
is virtually instantaneous,
5.7 A facility's proximity to fish and wild-
life and sensitive environments not bor-
dering 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, Fac-
tors to be considered in assessing oil trans-
port over land to fish and wildlife and sen-
sitive environments should include the to-
pography of the surrounding' area, drainage
patterns, man-made barriers (excluding' sec-
ondary containment structures), and soil dis-
tribution and porosity.
5.8 If a facility is not found to pose sub-
stantial harm to fish and wildlife and sen-
sitive environments not bordering navigable
waters via oil transport on land, then sup-
porting 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.
58
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Environmental Protection Agency
Pt. 112, App. C
Q
[59 FR 34102, July 1. 199-1. as amended at 65 FR 40798. June 30. 2000: 67 FR 47152. July 17. 2002]
59
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Pt. 112, App. D
40 CFR Ch. I (7-1-04 Edition)
APPENDIX D TO PART 112—-DF.TERMIN.V-
TION OF A WORST CASK, DISCHARGE
PLANNING VOLUME
1.1 An owner or operator is required to
complete this worksheet if the facility meets
the criteria, as presented in Appendix C to
this part, or it is determined by the RA that
the facility could cause substantial harm to
the environment. The calculation of a worst
case discharge planning volume is used for
emergency planning purposes, and is re-
quired 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, ad-
verse weather conditions must he taken into
consideration. An owner or operator is re-
quired to determine the facility's worst case
discharge planning" volume from either part.
A of this appendix for a.n onshore storage fa-
cility, or part B of this appendix for an on-
shore production facility. The worksheet
considers the provision of adequate sec-
ondary containment at a facility.
1,2 For onshore storage facilities and pro-
duction 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 func-
tion as one storage unit" (i.e., multiple tank
volumes are equalized), In a worst, case dis-
charge scenario, a single failure coultl cause
the discharge of the contents of more than
one tank. The owner or operator must pro-
vide 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 plan-
ning volume would be based on the combined
oil storage capacity of all manifolded tanks
or the capacity of the largest single oil stor-
age tank within a secondary containment-
area, whichever is greater. For purposes of
this rule, permanently manifolded tanks
that are separated "by internal divisions for
each tank are considered to be single tanks
and individual manifolded tank volumes are
not combined.
1.3 For production facilities, the presence
of exploratory wells, production wells, and
oil storage tanks must be considered in the
calculation. Part B of this appendix takes
these additional factors into consideration
and provides steps for their inclusion in the
total worst case discharge, planning volume.
Onshore oil production facilities may include
all wells, flowlines, separation equipment,
storage facilities, gathering lines, and auxil-
iary non-transportatioc.-relat.8d equipment
and facilities in a single geographical oil or
gas field operated by a single operator. Al-
though a potential worst case discharge
planning volume is calculated within each
section of the worksheet, the final worst
case amount, depends on the risk parameter
that results in the greatest volume.
1.4 Marine transportation-related transfer
facilities that contain fixed aboveground on-
shore structures used for buik oil storage are
jointly regulated by EPA and the U.S. Coast
Guard lUSCG), 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 Cor the worst case dis-
charge planning volume for USCG-related fa-
cilities is included in the USCG IFR (see Ap-
pendix K to this part, section 13, for avail-
ability). All complexes that are jointly regu-
lated 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 which-
ever volume is greater.
PART A: WORST CASE DISCHARGE PLAN-
NINO VOLUME CALCULATION FOR ON-
SHORE STORAGE FACILITIES :
Part A of this worksheet is to be com-
pleted 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 environ-
ment. If you are the owner or operator of a
production facility, please proceed to part B
of this worksheet.
A.I SINGLE-TANK FACILITIES
For facilities containing only one above-
ground oil storage tank, the worst case dis-
charge planning volume equals the capacity
of the oil storage tank. If adequate sec-
ondary containment (sufficiently larg'e 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.
1 "Storage facilities" represent all facilities
subject to this part, excluding- oil production
facilities.
60
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Environmental Protection Agency
Pt. 112, App. D
A .2 SECONDAR Y CONTAINMENT-
MULTIPLE-TAXK FACILITIES
Are alt aboveground oil storage tanks or
groups of aboveground oil storage tanks at
the facility without adequate secondary con-
tainment?2
CY.-NJ
A.2.1 If the answer is yes, the final worst
case discharge planning volume equals the
loUil iiboi'e.ground oil storage capacity at the fa-
cility,
(1) FINAL WORST CASE VOLUME:
GAL
(2) Do not proceed further.
A.2.2 If the answer is no. calculate the
total aboveground oil storage capacity of
tanks without adequate secondary contain-
ment. If all abovegTOund oil storage tank,^ or
groups of aboveground oil storage tanks at
the facility have adequate secondary con-
tainment. ENTER "0" (zero).
GAL
A.2.3 Calculate the capacity of the largest
single abovegTOund oil storage tank within
an adequate secondary containment area or
the combined capacity of a group of above-
ground oil storage tanks permanently
manifolded together, whichever is greater,
PLUS THE VOLUME FROM QUESTION
A.2.2.
FINAL WORST CASE VOLUME::t
GAL
PART B: WORST CASE DISCHARGE PLAN-
NING VOLUME CALCULATION FOR ON-
SHORE PRODUCTION FACILITIES
Part B of this worksheet is to be completed
by the owner or operator of an •SPCC-regu-
lated 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 re-
lated equipment in a single geographical oil
or gas field operated by a single operator
B.I SINGLE-TANK FACILITIES
B.I.I For facilities containing' only one
aboveground oil storage tank, the worst case
discharge planning' volume equals the capac-
ity of the aboveground oil storage tank plus
the production volume of the well with the
highest output at the facility. If adequate
- Secondary containment is described in 40
CFR part 112. subparts A through C Accept-
able methods and structures for containment
are also given in 40 CPR 112.7(c)U>.
;iAll complexes that are jointly regulated
by EPA and the USCG must also calculate
the worst case discharge planning volume for
the transportation-related portions of the fa-
cility and plan for whichever volume is
greater.
secondary containment (sufficiently large to
contain the capacity of the aboveground oil
storage tank plus sufficient freeboard to
allow for precipitation) exists for the storage
tank, multiply the capacity of the tank by
0.8.
B 1.2 For facilities with production wells
producing- by pumping, if the rate of the well
with the hig'hesi 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 mul-
tiplied by the greatest number of days the
facility is unattended.
B 1.3 If the pumping rate of the well with
the highest output is estimated or the max-
imum number of days the facility is unat-
tended is estimated, then the production vol-
ume 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.I.4 Attachment D-l to this appendix
provides methods for calculating the produc-
tion volume lor exploratory wells and pro-
duction wells producing- under pressure.
SECONDARY CONTAINMENT--
MULTIPLE- / A\'K FACILITIES
Are all abovejjround oil storage tanks or
groups of aboveground oil storage tanks at
the facility u-ithuut adequate secondary con-
tainment?
(Y.'N)
B.2,1 If the answer is yes. the final worst
case volume equals the total aboveground oil
storage capacity without adequate secondary
containment plus the production volume of
the well with the "highest output at the facil-
ity
ill For facilities with production wells pro-
ducing by pumping, if the rate of the well
with the hifrhest output is known and the
number of days the facility is unattended
Cein be predicted, then the production volume
is equal to the pumping rate of the. well mul-
tiplied 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 de-
termined from the pumping rate of the well
multiplied by 1.5 times the greatest number
of days that the facility has been or is ex-
pected to be unattended.
(3) Attachment D-l to this appendix pro-
vides methods for calculating the production
volumes for exploratory wells and produc-
tion wells producing under pressure.
(A) FINAL WORST CASE VOLUME:
GAL
iB> Do not proceed further,
61
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Pf. 112, App. D
40 CFR Ch, I (7-1-04 Edition)
B.2.2 If the answer is no, calculate the
total aboveground oil storage capacity of
tanks without adequate secondary contain-
ment. If all aboveground oil storage tanks or
groups of aboveground oil storage tanks at,
the facility have adequate secondary con-
tainment, ENTER "0" (zero),
GAL
B.2.3 Calculate the capacity of the largest
single aboveground oil storage tank within
an adequate secondary containment area or
the combined capacity of a group of above-
ground oil storage tanks permanently
manifolded together, whichever is greater,
plus tlie production volume of the well with
the highest output, PLUS THE VOLUME
FROM QUESTION B.2.2. Attachment D-l
provides methods for calculating' the produc-
tion volumes for exploratory wells and pro-
duction wells producing* under pressure.
(1) FINAL WORST CASE VOLUME: '
GAL
(2) Do not proceed further,
ATTACHMENTS TO APPENDIX D
ATTACHMKNT D-I—METHODS TO CALCUI.ATK
PRODUCTION VOLUMES FOR PRODUCTION FA-
CILITIES WITH EXPLORATORY WELLS OK PRO-
DUCTION WELLS PRODUCING U.NDKR PRES-
SURE
1.0 Introduction
The owner or operator of a production fa-
cility with exploratory wells or production
wells producing' under pressure shall com-
pare the well rate of the highest output well
(rate of well), in barrels per day. to the abil-
ity of response equipment and personnel to
recover the volume of oil that could be dis-
charged (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 pro-
duction volume is to be used to calculate the
worst case discharge planning' volume in part
B of this appendix.
2.0 Description of Methods
2.1 Method A
If the well rate would overwhelm the re-
sponse efforts (i.e., rate of welFrate of recov-
ery >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 fore-
casted well rate for a well deeper than 10,000
feet.
(1) For wells 10,000 feet deep or less:
Production volume=3Q days x rate of well.
4 All complexes that are jointly regulated
by EPA and the USCG must also calculate
the worst case discharge planning volume for
the transportation-related portions of the fa-
cility and plan for whichever volume is
greater.
(2) For wells deeper than 10.000 feet:
Production volume=45 days xrate of well.
2.2 Method B
2.2.1 If the rate of recovery would be
greater than the well rate (i.e.. rate of well'
rate of recovery
-------
Environmental Protection Agency
Pt, 112, App. E
3.3 li the recovery i.itt \vas 5 barrel.* per
day. the ratio of rate of well to rate of recov-
ery would be 2. so the facility operator would
use Method A. The production volume would
have been.
,'iO days >< 10 barrels per day=3QQ barrels
!»» FR 34110, July 1. 1994: 59 FR 49006. £ept.
26. 1994. ah amended at 65 B'R 40800. June 30.
2000: 67 FR 47152. July 17. 2002]
APPENDIX B TO PART 112—DF/TEKMINA-
TION AND EVALUATION OF REQUIRED
RESPONSE RESOURCES FOR FACILITY
RESPONSE PLANS
1,0 Purpose, and Definitions
1.1 The purpose of this appendix is to de-
scribe the procedures to identify response re-
sources 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 fol-
low this appendix or, where not appropriate,
shall clearly demonstrate in the response
plan why use of this appendix Is not appro-
priate at the facility and make comparable
arrangements for response resources.
1.2 Definitions.
1.2.1 Animal fat means a non-petroleuin
oil, fat. or grease of animal, fish, or marine
mammal origin. Animal fats are further
classified based on specific gravity as fol-
lows:
(1) Group A—specific gravity less than 0.8.
(2) Group B—specific gravity equal to or
greater than 0.8 and less than 1.0.
(3) Group C—specific gravity equal to or
greater than 1.0.
1.2.2 Nearshore is an operating area de-
fined as extending seaward 12 miles from the
boundary lines defined in 46 OFR part 7. ex-
cept in the Gulf of Mexico. In the Gulf of
Mexico, it means the area extending 12 miles
from the line of demarcation (COLREG lines)
defined in 49 CFR 80.740 and 80.850.
1.2.3 Non-persistent oils or Group I oils in-
clude:
(1) A petroleum-based oil that, at the time
of shipment, consists of hydrocarbon frac-
tions:
(A) At least 50 percent of which by volume.
distill at a temperature of 3-10 degrees C (645
degrees F): and
(Bj At least 96 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 ani-
mal fat or vegetable oil, with a specific grav-
ity less than 0.8.
1.2.4 Non-petroleum oil means oil of any
kind that is not petroleurn-based, including
but not limited to; fats, oils, and greases of
animal, fish, or marine mammal origin: and
vegetable oils, including oils from seeds.
nuts, fruits, and kernels.
'..2.?. Oci.-un mean,- Hie nearshore area.
."; 2.6 OperiUini/ urea means Rivers and Ca-
nai.s. Inland. Nearshore. and Great Lakes g»-
ot'Triphic; location!;-.} in which a facility is
hiindiiiur. storing, or transporting oil.
1.2.7 Operulinfs environment inea-iis Rivers
and Canals. Inland. Great Lakes, or Ocean,
These terras are used to define the condi-
tions in winch response equipment is de-
signed to function.
\ 2.8 Persistent <>i!s include:
'!) A petroleum-based oil that does not
meet the distillation criteria for a non-per-
sistent oil. Persistent oils are further classi-
fied based on specific gravity as follows:
(A) Group 2—specific gravity less than 0.85:
'B) Group 3- --specific gravity equal to or
gxeater than 0,85 and less than 0.95:
(O) Group 4—specific gravity equal to or
greater than 0.95 and less than 1.0: or
iD> Group 5-—specific gravity equal to or
greater than 1.0.
(.2) A non-petroleum oil, other than an ani-
mal fat or vegetable oil, with a specific grav-
ity of 0,8 or greater. These oils are further
classified based on specific gravity as fol-
lows:
iA) 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
iD) Group 5—specific gravity equal to or
greater than 1.0.
1.2.9 Vegetable oil means a noil-petroleum
oil or fat of vegetable origin, including hut
not limited to oils and fats derived from
plant seeds, nuts, fruits, and kernels. Vege-
table oils are further classified based on spe-
cific gravity as follows:
(1) Group A—specific gravity less than 0.8.
(2) Group B-—specific gravity equal to or
greater than 0.8 and less than 1.0,
(3) Group C—specific gravity equal to or
greater than 1,0.
1.2.10 Other definitions are Included in
§112.2. section 1.1 of Appendix C, and section
3.0 of Appendix F.
2.0 Equipment Operability and Readiness
2.1 All equipment identified in a response
plan must be designed to operate in the con-
ditions expected in the facility's geographic
area (i.e., operating environment), These
conditions vary widely based on location and
season. Therefore, it is difficult to identify a
single stockpile of response equipment that
will function effectively in each geographic
location (i.e., operating area).
2.2 Facilities handling, storing-, or trans-
porting oil in more than one operating envi-
ronment as indicated in Table 1 of this ap-
pendix must identify equipment capable of
successfully functioning in each operating1
environment.
63
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Pt, 112, App. E
40 CFR Ch. I (7-1-04 Edition)
2.3 When identifying equipment for the
response plan (based on the use of this ap-
pendix), a facility owner or operator must-
consider t-he inherent limitations of the
operability of equipment components and re-
sponse systems. Tie 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 cer-
tain operating' environments.
2.3.1 The Regional Administrator may re-
quire documentation that t-he boom identi-
fied in a facility response plan meets the cri-
teria in Table 1 of this appendix. Absent ac-
ceptable documentation, the Regional Ad-
ministrator may require that the boom be
tested to demonstrate that it meets the cri-
teria 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 B to
this part, section 13. for general availability
of documents).
2.4 Table 1 of this appendix lists criteria
for oil recovery devices and boom. All other
equipment necessary to sustain or support-
response operations in an operating' environ-
ment mast be designed to function in the
same conditions. For example, boats that de-
ploy or support skimmers or boom must be
capable of being safely operated in the sig-
nificant wave heights listed for the applica-
ble operating environment.
2.5 A facility owner or operator shall refer
to the applicable Area Contingency Plan
(ACP), where available, to determine if ice.
debris, and weather-related visibility are sig-
nificant 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- iden-
tified in a response plan must be designed to
operate within those conditions or ranges.
2.6 This appendix provides information on
response resource mobilization and response
times. The distance of the facility from the
storage location of the response resources
must be used to determine whether the re-
sources can arrive on-scene within the stated
time. A facility owner or operator shall in-
clude the time for notification, mobilization.
and travel of resources identified to meet the
medium and Tier 1 worst case discharge re-
quirements 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 nec-
essary 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 as-
sumed, unless the facility owner or operator
can demonstrate otherwise.
2.7 In identifying equipment, the facility
owner or operator shall list the storage loca-
tion. 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 foi ensuring' that
the identified boom has compatible connec-
tors.
OiJx Other Than Animal Fats
3.1 A facility owner or operator shall
identify sufficient response resources avail-
able, by contract or other approved means as
described in §112.2, to respond to a small dis-
charge, 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 envi-
ronment at the point of expected use.
3.2 Complexes that are regulated by EPA
and the United States Coast Guard (USCGj
must also consider planning quantities for
the transportation-related transfer portion
of the facility.
3.2.1 Petroleum oils. The USCG planning
level that corresponds to EPA's "small dis-
charge" is termed "the average most probable
discharge." A USCG rule found at 33 CPE
154.1020 defines "the average most probable
discharge" as the lesser of 50 barrels (2,100
gallons) or 1 percent of the volume of the
worst case discharge. Owners or operators of
complexes that handle, store, or transport
petroleum oils must compare oil discharge
volumes for a small discharge and an average
most probable discharge, and plan for which-
ever quantity is greater.
3.2.2 Non-petrolewn oils other than animal
fats and vegetable oils. Owners or operators of
complexes that- handle, store, or transport
non-petroleum oils other than animal fats
and vegetable oils must plan for oil dis-
charge volumes for a small discharge. There
is no USCG planning level that directly cor-
responds to EPA's "small discharge." How-
ever. the USCG (at 33 CFE 154.545') has re-
quirements to identify equipment to contain
til resulting from an operational discharge.
3,3 The response resources shall, as appro-
priate. include;
3.3.1 One thousand feet of containment
boom (or. for complexes with marine transfer
components, 1,000 feet of containment boom
or two times the length of the largest vessel
that regularly conducts oil transfers to or
from the facility, whichever is greater), and
a means of deploying it within 1 hour of the
discovery of a discharge;
3,3.2 Oil recovery devices with an effec-
tive daily recovery capacityequal to the
amount of oil discharged in a small dis-
charge or greater which is available at the
64
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Environmental Protection Agency
Pt. 112, App. E
facility within 2 hours of the detection of an
oil discharge; and
3.3.3 Oil storage capacity for recovered
oily material indicated in section 12.2 of this
appendix.
4.0 Determining Response Resources Required
for Medium Discharges—Petroleum Oils and
Non-Petroleum Oils Other Than Animal Fats
and Vegetable Oils
4.1 A facility owner or operator shall
identify sufficient response resources avail-
able, by contract or other approved means as
described in §112.2, to respond to a medium
discharge of oil for that facility. This will re-
quire response resources capable of con-
taining and collecting up to 36,000 gallons of
oil or 10 percent of the worst case discharge,
whichever is less. All equipment identified
must be designed to operate in the applicable
operating environment specified in Table 1 of
this appendix.
4.2 Complexes that are regulated by EPA
and the USCG must also consider planning
quantities for the transportation-related
transfer portion of the facility.
4,2.1 Petroleum oils. The USCG planning
level that corresponds to EPA's "medium dis-
charge" is termed "the maximum most prob-
able discharge." The USCG rule found at 33
CFR part 154 defines "the maximum most
probable discharge" as a discharge of 1.200
barrels (50.400 gallons) or 10 percent of the
worst case discharge, whichever is less. Own-
ers or operators of complexes that handle.
store, or transport petroleum oils must com-
pare calculated discharge volumes for a me-
dium discharge and a maximum most prob-
able discharge, and plan for whichever quan-
tity is greater.
4.2.2 Non-petroleum oils other than animal
fats and vegetable oils. Owners or operators of
complexes that handle, store, or transport
non-petroleum oils other than animal fats
and vegetable oils must plan for oil dis-
charge volumes for a medium discharge. For
non-petroleum oils, there is no USCG plan-
ning level that directly corresponds to EPA's
"medium discharge."
4.3 Oil recovery devices identified to meet
the applicable medium discharge volume
planning criteria must be located such that
they are capable of arriving on-scene within
6 hours in higher volume port areas and the
Great Lakes and within 12 hours in all other
areas. Higher volume port areas and Great
Lakes areas are defined in section 1.1 of Ap-
pendix C to this part.
4.4 Because rapid control, containment.
and removal of oil are critical to reduce dis-
charge impact, the owner or operator must
determine response resources using an effec-
tive daily recovery capacity for oil recovery
devices equal to 50 percent of the planning
volume applicable for the facility as deter-
mined in section 4.1 of this appendix. The ef-
fective daily recovery capacity for oil recov-
ery devices identified in the plan must be de-
termined using the criteria in section 6 of
this appendix.
4.5 In addition to oil recovery capacity.
the plan shall, as appropriate, identify suffi-
cient quantity of containment boom avail-
able, by contract or other approved means as
described in § 112.2. to arrive within the re-
quired response times for oil collection and
containment and for protection of fish and
wildlife and sensitive environments. For fur-
ther description of fish and wildlife and sen-
sitive 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 de-
scribed in §112.2. the availability of the
quantity of boom identified in the plan for
this purpose.
4.6 The plan must indicate the avail-
ability of temporary storage capacity to
meet section 12.2 of this appendix. If avail-
able storage capacity is insufficient to meet
this level, then the effective daily recovery
capacity must be derated (downgraded) to
the limits of the available storag'e capacity.
4.7 The following is an example of a me-
dium discharge volume planning calculation
for equipment identification in a higher vol-
ume port area: The facility's largest above-
ground storage tank volume is 840.000 gal-
lons. 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 re-
covery capacity is 50 percent of the planning
volume, or IB.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 stor-
age capacity available oil-scene must equal
twice the daily recovery capacity as indi-
cated in section 12.2 of this appendix, or
36.000 gallons per day. This is the informa-
tion 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
5.0 Determining Response Resources Required
for the Wornt Case Discharge to the Maximum
Extent Practicable
5.1 A facility owner or operate! shall
identify and ensure the availability of. by
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40 CFR Ch. I (7-1-04 Edition)
contract or other approved means as de-
scribed in §112.2. sufficient response re-
sources to respond to the worst, case dis-
charge of oil to the maximum extent prac-
ticable. Sections 7 and 10 of this appendix de-
scribe the method to determine the nec-
essary response resources. Worksheets are
provided as Attachments E-l and E-2 at the
end of this appendix to simplify the proce-
dures involved in calculating the planning
volume for response resources for the worst
case discharge.
5.1 A facility owner or operator shall
identify and ensure the availability of. by
contract or other approved means as de-
scribed in §112.2, sufficient response re-
sources to respond to the worst case dis-
charge of oil to the maximum extent prac-
ticable. Sections 7 and 10 of this appendix de-
scribe the method to determine the nec-
essary response resources. Worksheets are
provided as Attachments E-l and E-2 at the
end of this appendix to simplify the proce-
dures involved in calculating the planning
volume for response resources for the worst
case discharge.
5.2 Complexes that are regulated by EPA
and the USCG must also consider planning
for the worst case discharge at the transpor-
tation-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 regu-
lated by EPA and the USCG must compare
both calculations of worst case discharge de-
rived by EPA and the USCG and plan for
whichever volume is greater.
5.3 Oil discharge response resources iden-
tified in the response plan and available, by
contract or other approved means as de-
scribed in §112.2, to meet the applicable
worst case discharge planning volume must
be located such that they are capable of ar-
riving at the scene of a discharge within the
times specified for the applicable response
tier listed as follows
Higher volume port areas
Great Lakes
All other river and canal, inland, and nearshore areas
| Tier 1 I
i (in hours) I
~:~:=7 *"
12 .
1 12
Tier 2 i
(in hours) i (i
30 '
36
36
TierS
in hours)
54
60
SO
The three levels of response tiers apply to
the amount of time in which facility owners
or operators must plan for response re-
sources to arrive at the scene of a discharge
to respond to the worst case discharge plan-
ning volume. For example, at a wor&t case
discharge in an inland area, the first tier of
response resources (i.e., that amount of on-
water and shoreline cleanup capacity nec-
essary to respond to the fraction of the worst
case discharge as indicated through the se-
ries of steps described in sections 7.2 and 7.3
or sections 10.2 and 10.3 of this appendix)
would arrive at the scene of the discharge
within 12 hours: the second tier of response
resources would arrive within 36 hours: and
the third tier of response resources would ar-
rive within 60 hours.
5.4 The effective daily recovery capacity
for oil recovery devices identified in the re-
sponse plan must be determined using the
criteria in section 6 of this appendix. A facil-
ity owner or operator shall identify the stor-
age locations of all response resources used
for each tier. The owner or operator of a fa-
cility whose required daily recovery capacity
exceeds the applicable contracting caps in
Table 5 of this appendix shall, as appro-
priate, identify sources of additional equip-
ment, their location, and the arrangements
made to obtain this equipment during a re-
sponse. 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 appen-
dix. 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 equip-
ment that a facility owner or operator has
considered in his or her planning. When list-
ing' USCG-classified oil spill removal organi-
zation! s) that have sufficient removal capac-
ity to recover the volume above the response
capacity cap for the specific facility, as spec-
ified in Table 5 of this appendix, it is not
necessary to list specific quantities of equip-
ment.
5.5 A facility owner or operator shall
identify the availability of temporary stor-
age capacity to meet section 12.2 of this ap-
pendix. If available storage capacity is insuf-
ficient, then the effective daily recovery ca-
pacity must be derated (downgraded) to the
limits of the available storage capacity.
5.6 When selecting response resources nec-
essary to meet the response plan require-
ments, the facility owner or operator shall,
as appropriate, ensure that a portion of
66
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Environmental Protection Agency
Pt. 112, App. E
those resources is capable of being used in
close-to-shore response activities in shallow
water. For any EPA-regulated facility that
is required to plan for response in shallow
water, at least 20 percent of the on-water re-
sponse equipment identified for the applica-
ble operating area shall, as appropriate, be
capable of operating in water of 6 feet or less
depth.
5.7 In addition to oil spill recovery de-
vices, a facility owner or operator shall iden-
tify 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-spe-
cific information and response strategies em-
ployed. A facility owner or operator shall, as
appropriate, also identify sufficient quan-
tities 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: Pish and
Wildlife and Sensitive Environments" (see
Appendix E to this part, section 13. for avail-
ability), and the applicable ACP. Refer to
this guidance document for the number of
days and geographic areas (i.e., operating en-
vironments) specified in Table 2 and Table 6
of this appendix,
5.8 A facility owner or operator shall also
identify, by contract or other approved
means as described in §112.2. the availability
of an oil spill removal organization^) (as de-
scribed 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 taroug'h the ap-
plication of factors contained in Tables Z, 3.
6, and 7 of this appendix. The volume cal-
culated from these tables is intended to as-
sist the facility owner or operator to identify
an oil spill removal organization with suffi-
cient resources and expertise.
6.0 Determining Kffective Daily Recover)/
Capacity for Oil Recovery Devices
6.1 Oil recovery devices identified by a fa-
cility 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 me-
dium discharge, and a worst case discharge
to the maximum extent practicable.
6.2 To determine the effective daily recov-
ery capacity of oil recovery devices, the for-
mula listed in section 6.2.1 of this appendix
shall be used. This formula considers poten-
tial 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 war-
ranted.
6.2.1 The following formula shall be used
to calculate the effective daily recovery ca-
pacity:
R - T x 24 hours x E
where;
R---Effective daily recovery capacity:
T Throughput rate in barrels per hour
mameplate capacity): and
E- -20 percent efficiency factor (or lower fac-
tor as determined by the Regional Admin-
istrator).
6.2.2 For those devices in which the pump
limits the throughput of liquid, throughput
rate shall be calculated using the pump ca-
pacity.
6.2.3 For belt ur 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 col-
lected by the device, and surface area of the
belt or mop. For purposes of this calculation.
the assumed thickness of oil will be ' i inch.
6.2.4 Facility owners or operators that in-
clude 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 calcula-
tion. This information must be submitted
following the procedures in section 6.3.2 of
this appendix.
6.3 As an alternative to section 6.2 of this
appendix, a facility owner or operator may
submit adequate evidence that a different ef-
fective daily recovery capacity should be ap-
plied for a specific oil recovery device. Ade-
quate evidence is actual verified perform-
ance data in discharge conditions or tests
using' American Society of Testing' and Mate-
rials" (ASTM) Standard F 631-99, F 808-83
(1999), or an equivalent test approved by EPA
as deemed appropriate I see Appendix E to
this part, section 1'?. for general availability
of documents).
6.3.1 The following' formula must be used
to calculate the effective daily recovery ca-
pacity under this alt dilative:
B - D x U
where:
R--Effective daily recovery capacity:
D—Average Oil Recovery Rate in barrels per
hour (Item 26 in F 808-83: Item 13,2,16 in F
631-99; or actual performance data); and
U—-Hours per day that equipment can oper-
ate under discharge conditions. Ten hours
per day must be used unless a facility
owner or operator can demonstrate that
the recovery operation can be sustained for
longer periods.
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Pt, 112, App. E
40 CFR Ch, I (7-1-04 Edition)
6,3.2 A facility owner or operator submit-
ting' a response plan shall provide data, that
supports the effective daily recovery capac-
ities for the oil recovery devices; listed. The
following is an example of these calcula-
tions:
(DA weir skimmer identified in a response
plan has a manufacturer's rated throughput
at the pump of 267 gallons per minute (gpm).
267 gpm-381 barrels per hour ("bph)
R=381 bphx24 hiY(lay>c0,2=1.829 barrels per day
(2) After testing- using ASTM procedures,
the skimmer's oil recovery rate is deter-
mined to be 220 gpm. The facility owner or
operator identifies sufficient resources avail-
able to support operations for 12 hours per
day.
220 g-pm=314 bph
R=314 bphx!2 hr-day=3,768 barrels per day
(3) The facility owner or operator will be
able to use the higher capacity if sufficient
temporary oil storage capacity is available.
Determination of alternative efficiency fac-
tors under section 6.2 of this appendix or the
acceptability of an alternative effective
daily recovery capacity under section 6.3 of
this appendix will be made by the Regional
Administrator as deemed appropriate.
7,0 Calculating Planning Volumes for a Worst.
Case Discharge—Petroleum Oils and .\7on-Pi>-
troleum Oils Other Than Animal Fats and
Vegetable Oils
7.1 A facility owner or operator shall plan
for a response to the facility's worst, case dis-
charge. The planning for on-water oil recov-
ery 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 poten-
tial for deposition of oil on the shoreline.
The procedures for non-petroleum oils other
than animal fats and vegetable oils are dis-
cussed in section 7.7 of this appendix.
7,2 The following1 procedures must be used
by a facility owner or operator in deter-
mining the required on-water oil recovery
capacity:
7.2.1 The following must be determined:
the worst case discharge volume of oil in the
facility; the appropriate group(s) for the
types of oil handled, stored, or transported
at the facility [persistent (Groups 2. 3. 4. 5)
or non-persistent (Group 1)]: and the facili-
ty'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, respec-
tively. Facilities that handle, store, or trans-
port oil from different oil groups must cal-
culate each group separately, unless the oil
group constitutes 10 percent or less by vol-
ume of the facility's total oil storage capac-
ity. This information is to be used with
Table 2 of this appendix to determine the
percentages of the total volume to be used
for removal capacity planning. Table 2 of
this appendix divides the volume into three
categories: oil lost to the environment: oil
deposited on the shoreline: and oil available
for on-water recovery.
7.2,2 The on-water oil recovery volume
shall, as appropriate, be adjusted using' the
appropriate emulsification factor found in
Table 3 of this appendix. Facilities that han-
dle, store, or transport oil from different pe-
troleum 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 ca-
pacity) and use the calculation that results
in the largest on-water oil recovery volume
to plan for the amount of response resources
for a worst case discharge.
7.2.3 The adjusted volume is multiplied by
the on-water oil recovery resource mobiliza-
tion factor found in Table 4 of this appendix
from the appropriate operating area and re-
sponse 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
hoars for Tier 3 of the discovery of an oil dis-
charge. For all other rivers and canals, in-
land, near-shore areas, and the Great Lakes.
these tiers are 12, .36, and 60 hours.
7.2.4 The resulting on-water oil recovery
capacity in barrels per day for each tier is
used to identify response resources necessary
to sustain operations in the applicable oper-
ating area. The equipment shall be capable
of sustaining operations for the time period
specified in Table 2 of this appendix. The fa-
cility owner or operator shall identify and
ensure the availability, by contract or other
approved means as described in §112,2. of suf-
ficient oil spill recovery devices to provide
the effective daily oil recovery capacity re-
quired. If the required capacity exceeds the
applicable cap specified in Table 5 of this ap-
pendix, 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 re-
quired 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
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Environmental Protection Agency
Pt. 112, App. E
must be used to plan for the amount of re-
sponse resources for a worst case discharge.
unless the oil group comprises 10 percent or
less by volume of the facility's total oil stor-
age capacity.
7.3 The procedures discussed in sections
7.3.1-7.3.3 of this appendix must be used to
calculate the planning volume for identi-
fying shoreline cleanup capacity (for Group 1
through Group 4 oils).
7.3.1 The following must be determined:
the worst case discharge volume of oil for
the facility: the appropriate group(s) for the
types of oil handled, stored, or transported
at the facility [persistent (Groups 2, 3. or 4)
or non-persistent (Group 1)]: and the g'eo-
graphic area(s) in which the facility operates
((.i;.. operating areas). For a facility han-
dling, storing, or transporting oil from dif-
ferent groups, each group must be calculated
separately. Using this information, Table 2
of this appendix must be used to determine
the percentages of the total volume to be
used for shoreline cleanup resource planning.
7.3.2 The shoreline cleanup planning vol-
ume must be adjusted to reflect an emulsi-
fication factor using the same procedure as
described in section 7.2.2 of this appendix.
7.3.3 The resulting- volume shall be used
to identify an oil spill removal organization
with the appropriate shoreline cleanup capa-
bility.
7.4 A response plan must identify re-
sponse resources with fire fighting capa-
bility. The owner or operator of a facility
that handles, stores, or transports Group 1
through Group 4 oils that does not have ade-
quate 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 indi-
vidual 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 fight-
ing resources are available within a reason-
able response time to a worst case scenario.
The individual may be the qualified indi-
vidual identified in the response plan or an-
other appropriate individual located at the
facility.
7.5 The following is an example of the pro-
cedure described above in sections 7.2 and 7.3
of this appendix: A facility with a 270.000 bar-
rel (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 penin-
sula and has docks on both the ocean and
bay sides. The facility has four aboveground
oil storage tanks with a combined total ca-
pacity of 80.000 barrels (3.36 million gallons!
and no secondary containment. The remain-
ing facility tanks are inside secondary con-
tainment structures. The largest above-
ground oil storage tank (90,000 barrels or 3.78
million gallons) has its own secondary con-
tainment. Two 50.000 barrel (2.1 million gal-
lon) tanks (that are not connected by a
manifold) are within a common secondary
containment tank area, which is capable of
holding 100.000 barrels (4.2 million gallons)
plus sufficient freeboard.
7,5.1 The worst case discharge for the fa-
cility is calculated by adding the capacity of
all aboveground oil storage tanks without
secondary containment (80.000 barrels) plus
the capacity of the largest aboveground oil
storage tank inside secondary containment.
The resulting worst case discharge volume is
170.000 barrels or 7.14 million gallons.
7.5.2 Because the requirements for Tiers 1.
2, arid 3 for inland and nearshore exceed the
caps identified in Table 5 of this appendix.
the facility owner will contract for a re-
sponse to 10.000 barrels per clay (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
Tiw 1. 9.750 bpd for Tier 2, and 7.600 bpd for
Tier 3 shall be identified but need not be con-
tracted 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 Facil-
ity and Vessel Response Plans: Fish and
Wildlife and Sensitive Environments." (see
Appendix E to this part, section 13, for avail-
ability) 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 pub-
lic drinking water intakes that may be im-
pacted in the event of a worst case discharge.
7,6 The procedures discussed in sections
7.6.1-7.6.3 of this appendix must be used to
determine appropriate response resources for
facilities with Group 5 oils.
7.6.1 The owner or operator of a facility
that handles, stores, or transports Group 5
oils shall, as appropriate, identify the re-
sponse resources available by contract or
other approved means, as described in §112.2.
The equipment identified in a response plan
shall, as appropriate, include:
(!) 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 sur-
face or to reduce spreading on the bottom;
(3) Dredges, pumps, or other equipment
necessary to recover oil from the bottom and
shoreline;
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40CFRCh. I (7-1-04 Edition)
(4) Equipment necessary to assess the im-
pact of such discharges: and
(5) Other appropriate equipment necessary
to respond to a discharge involving the type
of oil handled, stored,, or transported.
7.6.2 Response resources identified in a re-
sponse plan for a facility that handles.
stores, or transports Group 5 oils under sec-
tion 7.6.1 of this appendix shall be capable of
being deployed (on site) within 24 hours of
discovery of a discharge to the area where
the facility is operating'.
7.6.3 A response plan must identify re-
sponse resources with fire fighting- capa-
bility. 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 can-
not rely on sufficient local fire fighting re-
sources 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 fa-
cility to work with the fire department for
Group 5 oil fires. This individual shall also
verify that sufficient well-trained fire fight-
ing resources are available within a reason-
able response time to respond to a worst case
discharge. The individual may be the quali-
fied individual identified in the response
plan or another appropriate individual lo-
cated at the facility.
7.7 Non-petroleum oils other than animal
fats and vegetable oils. The procedures de-
scribed in sections 7.7.1 through 7.7.5 of this
appendix must be used to determine appro-
priate response plan development and eval-
uation criteria for facilities that handle.
store, or transport non-petroleum oils other
than animal fats and vegetable oils. Refer to
section 11 of this appendix for information
on the limitations on the use of chemical
agents for inland and nearshore areas.
7.7.1 An owner or operator of a facility
that handles, stores, or transports non-petro-
leum oils other than animal fats and vege-
table oils must provide information in his or
her plan that identifies:
(1) Procedures and strategies for respond-
ing to a worst case discharge to the max-
imum extent practicable: and
(2) Sources of the equipment and supplies
necessary to locate, recover, and mitigate
such a discharge.
7.7.2 An owner or operator of a facility
that handles, stores, or transports non-petro-
leum oils other than animal fats and vege-
table oils must ensure that any equipment
identified in a response plan is capable of op-
erating in the conditions expected in the ge-
ographic area(s) (i.e., operating environ-
ments) in which the facility operates using
the criteria in Table 1 of this appendix. When
evaluating the operability of equipment, the
facility owner or operator must consider lim-
itations that are identified in the appro-
priate ACPs. including:
(1) Ice conditions:
(2) Debris:
(3i Temperature ranges: and
(4) Weather-related visibility.
7.7.3 The owner or operator of a facility
that handles, stores, or transports non-petro-
leum oils other than animal fats and vege-
table oils must identify the response re-
sources 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:
'!) Containment boom, sorbent boom, or
other methods for containing oil floating on
the surface or to protect shorelines from im-
pact:
12} Oil recovery devices appropriate for the
type of non-petroleum oil carried: and
(3) Other appropriate equipment necessary
to respond to a discharge involving the type
of oil carried.
7.7.4 Response resources identified in a re-
sponse plan according to section 7.7.3 of this
appendix must be capable of commencing an
effective on-scene response within the appli-
cable tier response times in section 5.3 of
this appendix.
7.7.5 A response plan must identify re-
sponse resources with fire fighting capa-
bility. The owner or operator of a facility
that handles, stores, or transports non-petro-
leum oils other than a,nimal fats and vege-
table 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 oper-
ator shall ensure, by contract or other ap-
proved 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 depart-
ment 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 sce-
nario. The individual may be the qualified
individual identified in the response plan or
another appropriate individual located at
the facility.
8.0 Determining Response Resources Required
for Small Discharges—Animal Fats and Vege-
table Oils
8.1 A facility owner or operator shall
identify sufficient response resources avail-
able, by contract or other approved means as
described in §112.2. to respond to a small dis-
charge 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.
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8.2 Complexes that are regulated by EPA
and the USCG must also consider planning
quantities for the marine transportation-re-
lated portion of the facility.
8,2.1 The OSCG planning level that cor-
responds to EPA's "small discharge" is
termed "the average most probable dis-
charge." A USCG rule found at 33 CPR
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 IK greater.
8.3 The response resources shall, as appro-
priate, include:
8.3.1 One thousand feet of containment
boom (or, for complexes with marine transfer
components, 1,000 feet of containment boom
or two times the leng'th of the largest vessei
that regularly conducts oil transfers to or
from the facility, whichever is greater), and
a means of deploying" it within 1 hour of the
discovery of a discharge;
8,3,2 Oil recovery devices with an effec-
tive daily recovery capacity equal to the
amount of oil discharged in a small dis-
charge or greater which is available ai the
facility within 2 hours of the detection of a
discharge; and
8.3.3 Oil storage capacity for recovered
oily material indicated in section 12.2 of this
appendix.
S.O Determining Response RttiouYces Required
for Medium Discharges-- -Animal Fats and
Vegetable Oils
9.1 A facility owner or operator shall
identify sufficient response resources avail-
able, 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 re-
sources 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 op-
erate in the applicable operating environ-
ment specified in Table 1 of this appendix.
9.2 Complexes that are regulated by EPA
and the USCG must also consider planning
quantities for the transportation-related
transfer portion of the facility. Owners or
operators of complexes that handle, store, or
transport animal fats or vegetable oils must
plan for oil discharge volumes for a medium
discharge. For non-petroleum oils, there is
no USCG planning level that directly cor-
responds to EPA's "medium discharge." Al-
though the USCG does not have planning re-
quirements for medium discharges, they do
have requirements (at 33 CFR 154,545) to
identify equipment to contain oil resulting
from an operational discharge.
a.3 Oil recovery devices identified to meet
the applicable medium discharge volume
planning' criteria must, be located such that
they are capable of arriving on-scene within
6 hours in higher volume port areas and the
Great Lakes arid within 12 hours in all other
areas. Higher volume port areas and Great
Lakes areas are defined in sec-lion 1.1 of Ap-
pendix C to thi.s part
ft 1 Because rapid control, containment.
and removal of oil are critical to reduce dis-
charge impact, the owner or opeiator must
determine response lesourees using an effec-
tive daily recovery capacity for oil recovery
devices equal to 50 percent of the planning
volume applicable for the facility a? deter-
mined in section 9,1 of this appendix. The af-
fective dally recovery capacity for oil recov-
ery devices identified In the plan must be de-
termined using the criteria in section 6 of
this appendix.
9.5 In addition to oil recovery capacity.
the plan shall, as appropriate, identify suffi-
cient quantity of containment boom avail-
able, by contract or other approved means as
described in §112.2, to arrive within the re-
quired response times for oil collection and
containment and for protection of fish and
wildlife and sensitive environments. For fur-
ther description of fish and wildlife and sen-
sitive environments, see Appendices I. II, and
II! 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 ACT'. Al-
though 40 CFR part. 112 does not set required
quantities of boom for oil collection and con-
tainment, 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.« The plan must indicate the avail-
ability of temporary storage capacity to
meet section 12.2 of this appendix. If avail-
able storage capacity is insufficient to meet
this level, then the effective daily recovery-
capacity must be derated (downgraded* to
the limits of the available storage capacity.
9.7 The following is an example of a me-
dium discharge volume planning calculation
for equipment identification in a higher vol-
ume 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 gal-
lons per day. The ability of oil recovery de-
vices to meet this capacity must be cal-
culated using the procedures in section 6 of
this appendix. Temporary storage capacity
available on-scene must equal twice the
71
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Pt. 112,App. E
40 CFR Ch. I (7-1-04 Edition)
daily recovery capacity as indicated in sec-
tion 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 re-
sponse resources, by contract or other ap-
proved means as described in §112.2. The fa-
cility owner shall also identify how much
boom is available for use.
70.0 Calculating Planning Volumes for a Worst
Case Discharge—Animal Fats and Vegetable
Oils.
10.1 A facility owner or operator shall
plan for a response to the facility's worst
case discharge. The planning for on-water oil
recovery must take into account a loss of
some oil to the environment due to physical.
chemical, and biological processes, potential
increases in volume due to emulsification.
and the potential for deposition of oil on the
shoreline or on sediments. The response
planning procedures for animal fats and veg-
etable oils are discussed in section 10,7 of
this appendix. You may use alternate re-
sponse planning procedures for animal fats
and vegetable oils if those procedures result
in environmental protection equivalent to
that provided by the procedures in section
10.7 of this appendix.
10.2 The following procedures must be
used by a facility owner or operator in deter-
mining' the required on-water oil recovery
capacity:
10.2.1 The following' must be determined:
the worst case discharge volume of oil in the
facility; the appropriate group)s) for the
types of oil handled, stored, or transported
at the facility (Groups A, B, C): and the fa-
cility's specific operating area. See sections
1.2.1 and 1.2.9 of this appendix for the defini-
tions 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
categ'ories: oil lost to the environment; oil
deposited on the shoreline: and oil available
for on-water recovery.
10.2.2 The on-water oil recovery volume
shall, as appropriate, be adjusted using the
appropriate emulsification factor found in
Table 7 of this appendix. Facilities that han-
dle, 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 vol-
ume of the facility's total storage capacity)
and use the calculation that results in the
largest on-water oil recovery volume to plan
for the amount of response resources for a
worst case discharge.
10,2.3 The adjusted volume is multiplied
by the on-water oil recovery resource mobili-
zation factor found in Table 4 of this appen-
dix 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 dis-
charge. For all other rivers and canals, in-
land, nearshore areas, and the Great Lakes.
these tiers are 12. 36, and 60 hours.
10.2.4 The resulting on-water oil recovery
capacity in barrels per day for each tier is
used to identify response resources necessary
to sustain operations in the applicable oper-
ating' area. The equipment shall be capable
of sustaining operations for the time period
specified in Table 6 of this appendix. The fa-
cility owner or operator shall identify and
ensure, by contract or other approved means
as described in §112.2, the availability of suf-
ficient oil spill recovery devices to provide
the effective daily oil recovery capacity re-
quired. If the required capacity exceeds the
applicable cap specified in Table 5 of this ap-
pendix, 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 re-
sources for a worst case discharge, unless the
oil group comprises 10 percent or less by vol-
ume of the facility's oil storage capacity.
10.3 The procedures discussed in sections
10.3.1 through 10.3.3 of this appendix must be
used to calculate the planning volume for
identifying shoreline cleanup capacity (for
Groups A and B oils).
10,3,1 The following: must be determined:
the worst case discharge volume of oil for
the facility; the appropriate gToup(s) for the
types of oil handled, stored, or transported
at the facility (Groups A or B); and the geo-
graphic area(s) in which the facility operates
72
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Environmental Protection Agency
Pt, 112, App. E
(i.e.. operating' areas). For a facility han-
dling", storing', or transporting1 oil from dif-
ferent groups, each group must be calculated
separately. Using this information. Table 6
of this appendix must lie used to determine
the percentages of the total volume to he
used for shoreline cleanup resource planning.
10.3,2 The shoreline cleanup planning" vol-
ume must be adjusted tc reflect an emulsi-
fioation factor using the same procedure as
described in section 10.2.2 of this appendix.
10.3.3 The resulting* volume shall be used
to identify an oil spill removal organization
with the appropriate shoreline cleanup capa-
bility.
10.4 A response plan must identify re-
sponse 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 thai does not have ade-
quate fire fighting' resources located at the
facility or that cannot rely on sufficient
local fire fighting resources must identify
adequate lire 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 indi-
vidual 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 rea-
sonable response time to a worst case sce-
nario. The individual may be the qualified
individual identified in the response plan or
another appropriate individual located at
the facility.
10.5 The following is an example of the
procedure described in sections 10.2 and 10-3
of this appendix. A facility with a 37.04 mil-
lion gallon (881.904 barrel) capacity of several
types of vegetable oils is located in the In-
iniard Operating Area
Mobilization factor by which you multiply planning volume
Estimated Daily Recovery Capacity (bbls!
land Operating Area. The vegetable oil with
the highest specific gravity stored at the fa-
cility is soybean oil 'specific gravity 0.92H.
Group B vegetable oil). The facility has ten
abcveground oil storage tanks with a com-
bined total capacity of 18 million gallons
(428.571 barrels! and without secondary con-
tainment. The remaining facility tanks are
inside secondary containment structures.
The laig.'est abweground oil storage tank i3
million gallon.- or 71,428 barrels) has its own
secondary containment Two 2.1 million gal-
lon (50.000 barrel) tanks (that are not con-
nected by a manifold) are within a common
secondary containment tank area, which is
capable of holding 4.2 million gallons 1100.000
ban els» plus sufficient freeboard.
10.5.1 The worst case discharge for the fa-
cility is calculated bv adding the capacity of
all abovegrouml vegetable oil storage tanks
without secondary containment (18.0 million
gallons) plus the capacity ol the Hrgest
aboveg'round storage tank Inside secondary
containment (30 million gallons). The re-
sulting worst case discharge is 21 million
gallons or 500.000 barrels.
10.5.2 With a specific- worst case discharge
identified, the planning' volume for oil-water
recovery can be identified as follows:
Worst case discharge: 21 million ya lions
(500,000 barrels) of Group B vegetable oil
Operating1 Area: Inland
Planned percent recovered floating' vegetable
oil (from Table t;, column Nearshore Inland
Great Lakesi: Inland. Group B is 20%
Emulsion factor (from Table 7): 2.0
Planning volumes for on-vvater recovery:
21.000.000 gallons > 0.2 > 2.0 = 8.400.000 gal-
lons or 200,000 barrels.
Determine required resources for on-water
recovery for each of the three tiers using
mobilization factors (from Table 4. column
Inland-Nearshore Great Lakes i
Tier 1
.15 !
30.000 i
Tier 2 T«r 3
.25 i 40
50,000 80.000
10.5.3 Because the requirements for On-
Water Recovery Resources for Tiers 1. 2. and
3 for inland Operating Area exceed the caps
identified in Table 5 of this? appendix, the fa-
cility 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, Re-
sources 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 con-
tracted for in advance.
10.5.4 With the specific worst case dis-
charge identified, the planning volume of on-
shore recovery can be identified as follows:
Worst case discharge: 21 million gallons
(500,000 barrels; of Group B vegetable oil
Operating Area: Inland
Planned percent recovered floating vegetable
oil from onshore (from Table 6. column
Nearshore Inland Great Lakes): Inland.
Group B is 65%
Emulsion factor (from Table 7): 2.0
Planning" volumes for shoreline recovery:
21.000,000 gallons x 0.6S x 2.0 = 27,300.000 gal-
lons or 650.000 barrels
10.5.5 The facility owner or operator shall,
as appropriate, also identify or contract for
quantities of boom identified in the response
plar. for the protection of fish and wildlife
73
-------
Pt. 112, App. E
40 CFR Ch. I (7-1-04 Edition)
and sensitive environments within the area
potentially impacted by a worst case dis-
charge from the facility. For further descrip-
tion of fish and wildlife and sensitive envi-
ronments, see Appendices I, II. and Til to
DOC/NOAA's "Guidance for Facility and Ves-
sel 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 Appen-
dix C provides a method for calculating a
planning distance to fish and wildlife and
sensitive environments and public drinking
water intakes that may be adversely affected
in the event of a worst case discharge.
10.6 The procedures discussed in sections
10.6.1 through 10.6.3 of this appendix must be
used to determine appropriate response re-
sources for facilities with Group C oils.
10.6.1 The owner or operator of a facility
that handles, stores, or transports Group C
oils shall, as appropriate, identify the re-
sponse 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, sot-bent boom, silt
curtains, or other methods for containing
the oil that may remain floating on the sur-
face 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 im-
pact of such discharges; and
(5) Other appropriate equipment necessary
to respond to a discharge involving the type
of oil handled, stored, or transported.
10,6.2 Response resources identified in a
response plan for a facility that handles.
stores, or transports Group C oils under sec-
tion 10.6.1 of this appendix shall lie capable of
being deployed on scene within 24 hours of
discovery of a discharge.
10.6.3 A response plan must identify re-
sponse resources with fire fighting capa-
bility. 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 can-
not, rely on sufficient local fire fighting re-
sources must identify adequate fire fighting
resources. The owner or operator shall en-
sure, by contract, or other approved means as
described in §112.2. the availability of these
resources. The response plan shall also iden-
tify 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 fig'hting re-
sources are available within a reasonable re-
sponse time to respond to a worst case dis-
charge. The individual may be the qualified
individual identified in the response plan or
another appropriate individual located at
the facility.
10-7 The procedures described in sections
10.7.1 through 10.7.5 of this appendix must be
used to determine appropriate response plan
development and evaluation criteria for fa-
cilities that handle, store, or transport ani-
mal fats and vegetable oils. Refer to section
11 of this appendix for information on the
limitations on the use of chemical agents for
inland and nearshore areas.
10.7.1 An owner or operator of a facility
that handles, stores, or transports animal
fats and vegetable oils must provide infor-
mation in the response plan that identifies:
(1) Procedures and strategies for respond-
ing to a worst case discharge of animal fats
and vegetable oils to the maximum extent
practicable: and
(2) Sources of the equipment and supplies
necessary to locate, recover, and mitigate
such a discharge.
10.7.2 An owner or operator of a facility
that handles, stores, or transports animal
fats and vegetable oils must ensure that any
equipment identified in a response plan is ca-
pable of operating in the geographic areacsi
(i.e.. operating environments) in which the
facility operates using the criteria in Table 1
of this, appendix. When evaluating the oper-
ability of equipment, the facility owner or
operator must consider limitations that are
identified in the appropriate ACPs. includ-
ing:
il) Ice conditions:
(2) Debris:
(3) Temperature ranges; and
(41 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 re-
sponse resources that are available by con-
tract or other approved means, as described
in §112.2. The equipment described in the re-
sponse 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 im-
pact:
(2) Oil recovery devices appropriate for the
type of animal fat or vegetable oil carried:
and
(3) Other appropriate equipment necessary
to respond to a discharge involving the type
of oil carried.
10.7.4 Response resources identified in a
response plan according to section 10,7.3 of
this appendix must be capable of com-
mencing' an effective on-scene response with-
in the applicable tier response times in sec-
tion 5.3 of this appendix.
10.7.5 A response plan must identify re-
sponse resources with fire fighting capa-
bility. 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
74
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•nvironmental Protection Agency
Pt. 112, App. E
fas facility or that cannot rely on sufficient
ocal fire fighting: resources must identify
idequate fire fighting resources. Tlie owner
>r operator shall ensure, by contract or
>ther approved means as described in §112.2.
:-he availability of these resources. The re-
sponse plan shall also identity an individutil
ocated at the facility to work with the fire
lepartment for animal fat and vegetable oil
Ires, This individual shall also verify that
iufficlent well-trained fire fighting resource
ire available within a reasonable response
sime to respond to a worst case disoha'.xe,
rhe individual may be the qualified inch-
/idual identified in the response plan or an-
;ther appropriate individual located at the
facility.
11.0 Determining the A mi lability nt
cp. Response Method*
11.1 For chemical agents to be identified
in a response plan, they must be on the NCP
Product Schedule that is maintained by
EPA. (Some States have a list of approved
rlispersatits for use within State waters. N;>t.
ail of these State-approved dispersants are
listed on the NCP Product Schedule.)
11.2 Identification of chemical agents in
the plan does not Imply that their use will be
authorized. Actual authorization will be gov-
erned by the provisions of the NCP and the
applicable ACP.
12.0 Additional Equipment. iVeoessur.v to
Sustain Response Operations
12.1 A facility owner or operator shall
identify sufficient response resources avail-
able. by contract or other approved means as
described in §112.2. to respond to a medium
discharfi'e of animal fats or vegetables oils
for that facility. This will require response
resources capable of containing and col-
lecting up to 36.000 gallons of oil or 10 per-
cent. of the worst case discharge. whichevei
is less. All equipment identified must be de-
signed to operate in the applicable operating
environment specified in Table 1 of this ap-
pendix.
12.2 A facility owner or operator shrill
evaluate the availability of adequate tem-
porary storage capacity to sustain the effec-
tive daily recovery capacities from equip-
ment identified in the plan. Because of the
inefficiencies of oil spill recovery devices, re-
sponse plans must identify daily storage ca-
pacity 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 dem-
onstrate by waste stream analysis that the
efficiencies of the oil recovery devices, abil-
ity to decant, waste, or the availability of al-
ternative temporary storage or disposal loca-
tions will reduce the overall volume of oily
material storage.
12.3 A facility owner or operator shall en-
sure that response, planning includes the ca-
pability to arrange for disposal of recovered
oil products. Specific- disposal procedures
will tie addressed in the applicable ACP
J'i.o A'efcn'i.'cf'x and Availability
13.1 All materials listed in this section
are part of EP.Vs rulemaiung- docket and are
located in the Supwfuncl Docket, 123S -Jeffer-
son Davis Highway. Crystal Gateway 1. Ai-
lintrton, Virginia 22202, Suite 105 (Doc.Ket.
Numbers SPGC 2P. SPCO 3P. and SPCf-fiF).
The -locket it- available for inspection be-
tween 9 a.m. and 4 p.m.. Monday tbnmgii
Friday, excluding Federal holidays.
Appointments 1o review the docket can be
ma-.l>-- by callint; 703 603-9232. Docket horns
are subject to change. As provided in 40 OFR
part 2. a reasonable fee may be charged for
copying service^.
13.2 The docket will mail copies of mate-
rials to requestors who are outside the Wash-
ington, 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 charg'ed for copying'
services. The liCRA Superfund Hotline at
800-421-9346 may also provide additional in-
formation on where to obtain documents To
contact th« RCRA Superfund Hotline in the
Washington. DC metropolitan area, dial 703-
412-9810. The Telecommunications Device for
the Deaf (TDUi Hotline number is 800-553-
7672. or. in the Washington. DC metropolitan
area. 703-412-33-13
U> '•! iv.-::uments
;1) National Preparedness- for Response Ex-
ercise Program (PREP). The PREP draft
guidelines are available from United mutes
Coast Guard Headquarters (G-MEP-4). 2100
Second Street. SVV., Washington. DC 20593.
CSef SB FR 53990-91. October 19. IS93. Notice
of Availability of PREP Guidelines,.
(2- "Guidance for Facility and Vessel Re-
sponse Plans: Fish and Wildlife and Sensitive
Environments (published in the Federal Reg-
ister by DOC.-NOAA at 59 FR 14713-22. March
29. 1994.1. The guidance is available in th<->
Superfund Docket- (see sections 13.1 and 13.2
of this appendix i
(3; ASTM Standards. ASTM F 715. ASTM F
988. ASTM F Gil 99. ASTM F 808-83 U999)
The ASTM standards are available from the
American Society fot Testing and Materials,
100 Bair Harboi Drivt.. West Conshohocken.
PA 19428-2959.
i4> Response Plans for Marina Transpor-
tation-Related Facilities. Interim Final
Rul«. Published by UisCO. DOT at 58 FR 7330--
76. February 5. 1993.
-------
Pt. 112, App. E 40 CFR Ch. I (7-1-04 Edition)
TABLE 1 TO APPENDIX E—RESPONSE RESOURCE OPERATING CRITERIA
Oil Recovery Devices
Operating environment
Rivers and Canals
Inland
Great Lakes
Ocean
Significant wave
height'
| < 1 foot
<3 (eet
] <4 feet
I < 6 feet
Sea state
1
2
2-3
3-4
Boom property
Significant Wave Height 1 .,
Sea State ....„,,, ,, , ,
Boom height— inches (draft plus freeboard) ..... .
Reserve Buoyancy to Weight Ratio
Total Tensile Strengths — pounds ,,,
Skirt Fabric Tensile Slrength— pounds ,
Skirt Fabric Tear Strength—pounds
Rivers and
canals
i i
1 .. ,
i
6-18
; 2:1
4.500
ZOO
100
Use
Inland Great Lakes
S3 :<4
2 2-3
18-42 18-42
2:1 2:1
15,000- 1 15.000-
20,000. 20.000.
300 300
100 100
Ocean
<6
3-4
>42
3:1 to 4:1
>20.000
500
125
10il recovery devices and boom shsi! he at least capable of operating in wave heignts up to and including ihe values listed in
Table 1 for sach operating environment.
TABLE 2 TO APPENDIX E—REMOVAL CAPACITY PLANNING TABLE FOR PETROLEUM OiLS
Spill location
Sustainability of on-water oil recovery
Oii group1
Rivers and cana;s
3 days
Percent nat- ' Percent re-
ira1 dissipa- , covered
Nearshore'lniand^Great Lakes
4 days
Percent oil
tton
™J'
l-asapa-
Percent oil
floating oil
10 j
15 :
15
20
10 !
45!
65
_ 7S_L
tion flo;
80 |
50 i
30 '
10
Ming oil ! on
20 i
50 i
50 I
50 !
10
30
50
70
1—Non-persistent oils \
2—Light crudes <
3—Medium crudes and fuels j
4—Heavy crudes and fuels j
1 The response resource considerations for non-petroleum oils other than animal fats and vegetable oils are outlined in section
7.7 of this appendix.
Note: Group 5 oils are defined in section 1.2.8 of tnis appendix: the response resource considerations are outlined in section
76 of this appendix.
TABLE 3 TO APPENDIX E—EMULSIFICATION FACTORS FOR PETROLEUM OIL GROUPS 1
Non-Persistent Oil:
Group 1
Persistent Oil:
Sroup 2
Groups
Group 4
Group 5 oils are defined in section 1.2.7 of this appendix, ihe -"espouse resource considerations are outlined in section
7.6 of this appendix.
" See sections 1.2.2 and 1.2.7 of this appendix for group designations for non-persistent and persistent oils, respectively.
TABLE 4 TO APPENDIX E—ON-WATER OIL RECOVERY RESOURCE MOBILIZATION FACTORS
Operating area
Rivers and Canals
Inland/Nearshore Great Lakes
Note: These mobilization factors are tor tota! resources mobilized, not incremental response resources.
TABLE 5 TO APPENDIX E—RESPONSE CAPABILITY CAPS BY OPERATING AREA
Tier 1 i Tier 2 i Tier 3
1.0
1.8
2.0
1 4
February 18, 1993:
All except Rivers & Canals. Great Lates
tOKbbis/day- : 20K bbls/day 40K bbls/day.
76
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Environmental Protection Agency Pt. 112, App. E
TABLE 5 TO APPENDIX E—RESPONSE CAPABILITY CAPS BY OPERATING AREA—Continued
1 Tier 1 Tier 2 • Tiei 3
Great Lakes ................. - ........ .....
Rivers 4 Canals ..................... .....
February 18, 1998:
Ail except Rivers & Canaio Great takes ..... .....
Gieat Lakes .........................................
Rivers & Canals ...............................
February 18. 2003-
All except Rivers S Canals. Great Lakes .....
Great Lakes ................................ - ............. ...
Rivers & Canals ..................................
Note The caps show cumulative overall effective daily recovery capacity not incremental
TBD=To Be Determined.
iOKbbis'day 20K bbls-.'day
3 OK bols/day ! 6.0K bhl&'day
: 125K bbteday 25K bOls/day | 50K bbis-day
' 6 35K bbls'day , n2.3K bbls/day ' 25K bbisiday.
: 1 S75K bbis 3.75K bbl&'day : 7.5K bbl&day
TBD
TBD
TBD
TBD
TBD
TBD
TABLE 6 TO APPENDIX E — REMOVAL CAPACITY PLANNING TABLE FOR ANIMAL FAT
OILS
AND VEGETABLE
Spill location _ Rivers and canals
Susfainabiiity of on-water oil recovery
Oil group '
Group A ,, > , ,. .
Group 8 .......,,,,,, ,,,..,,..,..,,,. , ... .,,, ,
1
Percent nat- :
ura! loss i
40
2
-------
Pt, 112,App. E
40 CFR Ch. I (7-1-04 Edition)
Attachment E-1
Worksheet to Plan Volume of Response Resources
for Worst Case Discharge Petroleum Oils
Near
shora/Inia
I nd Great
I Lakes
or R 3.ve r
and
Canals
?ercent Los ~ to
Natural Dissipacion
Percent
Oil Onshore
Step (El) On-Water oil Recovery St. .eg, ._QrS.,l,,.,,,, x 3 t_cp_ J
Step (F/ Emuisification Factor
(Table 3 of this appendix;
Step (G) On-Water 011 Recovery Rescurce Mcc
iTable 4 of this appendix)
tion Factor
78
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Environmental Protection Agency
Pt. 112, App, E
Attachment S-l (continued) --
Worksheet to Plan Voluma of H«jponse Reaourcas
for Worst Casa Discharge - Petroleum Oils
Part IT On -Hater Oil Recovery Capacity' (barrels/day)
Tier 2
Step itl) x Step (F> x
Step (CD
Step CE1> x Step {£; x
Step £62}
Step (tH) x Step (F)
Step CG3)
Part III Shoreline Cleanup Volume (barrels)
Part IV On-WaterResponse. Capacity By Operating Area
(Table 5 of this appendix!
(Amount needed to be contracted for in barrels/day)
Step (E2) x Step (f)
Tier 1
Tier 2
Tier ,1
J
CJ1) (J2> (JJ)
Part V On-Water Amount Seeded to be Identified, but not Contracted for in
Advance ibarrels/day)
Tier 1 Tier 2
Tier 3
Part H Tier 1 - Step CJ1}
Part II "ier 2 - Step
NOTE: To convert from barrels/day to gallons/day, multiply the quantities in
Parts II through V by 42 gallons/barrel.
79
-------
Pt. 112, App, E
40 CFR Ch. i (7-1-04 Edition)
Attacbment g-1 Bxample - -
Worksheet to Plan Volume of Response Resources
far worst Case Discharge - Pet.roleaun Oils
Step (3) Oi
Percent Lost: t.o
Matura 1 Dissipat; or.
J [
P e r c e: i i Recovered
-CCVt* rv 3teg :.I ^'.... x ^V..^o.__^j;J,., | ttS, CPU
L_
119,000
Z3 CZZ
oil Sr°(4' c'n site
storage capacity
80
-------
•nvironmental Protection Agency
Pt, 112, App. E
Attachment 8-1 Example (continued} —
Worksheet to Plan Volujsei of Response Resources
for Worst Case Discharge - Petroleum oils
Part II Ori_: Wat e rQi 1 Recovery Capacity (bar re Is/day)
r:
r
Tier 2
29,750
Step (E') x Step CF) x
Step SG1)
Step (ED x Step (F) *
Step (02)
Tier 3
4?,fiOO
Step (F.I) x Step
Part I! Tier 2 - Step (JZ)
Part II Tier 3 - step (JS)
NOTE: To convert from barrels/day to gallons/day, multiply the quantities In
Parts II through V by 42 gallons/barrel.
81
-------
Pt 112, App. E
40 CFR Ch. I (7-1-04 Edition)
Attachment E-2 - -
Worksh.s«t to Plan Volume of Response Resources
for Worse Caae Discharge - Animal Fats and Vegetable Oils
Step ;3; Oil Group' (Table ™
-------
nvironmental Protection Agency
Pt, 112, App. E
Attachment 1-2 (continued) --
Worksheet to Plan Volume of Rasponoa Resources
for Worst Case 2i.scharge - Unimal Fats and vegetable Oils
Parr, II Qn.-Ha.ter oil Recovery Capacity (barrels/day)
Tier 1
c
Tier 3
Step (El) * Step (F) x
Step (C1>
step (61) K Step (f) »
Step
step SE1S « Step
st»p tels
Part III Shoreline Cleanup Volutne (barrels! , . .
Part IV Gn-Water Response Capacity By Operating Area
(Table 5 of this appendix)
(Amount needed to be contracted for in barrels/day)
Step (E!) x Step (f>
r
Tier 1
Tier 2
Tier 3
(42)
(J3)
Part V On-Hater Amount Needed to be Identified, but not Contractedfor
in Advance (barrels/day)
Tier 2
f>irt II T»tr ! - Step (J1>
fart I! Tier 2 • Step
I 5
Tier 3
P»rt I! Tier J - Step (JJ)
NOTE: To convert from barrels/day to gallons/day, multiply the
quantities in Parts II through V by 42 gallons/barrel.
83
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Pt. 112, App. E
40 CFR Ch. I (7-1-04 Edition!
Attachment E-2 Example --
Worksheet to Plan Volume of Response Resources
for Worst Case Discharge - Animal Fats and Vegetable Oils
Part I Background Information
Step (A) Calculate Worst Case Discharge in barrels
(Appendix D)
500,
000
CA)
Step (B) Oil Group1 (Table 7 and section 1.2 of this
appendix)
Step (C) Operating Area (choose
one)
Step (D) Percentages of Oil (Table 6 of this appendix)
X
Near
shore/Inl
and Great
Lakes
or
Rivers
and
Canals
Percent Lost to
Natural
Dissipation
30
J
(01)
Percent. Recovered
Floating Oil
20
(02)
Step (El) On-Water Oil Recovery Step (D2i x Step (A)
100
Percent Oil
Onshore
50
-------
nvironmental Protection Agency
Pt. U2, App. F
Attachment E-2 Example (continued) - -
Worksheet to Pl»n Volume of Response Resources
for Worst Case Discharge - Animal Fats and Vegetable tals (continued!
Part II On-Water,Oi1 Recovery capacity (barrels/day!
fier 1
;o, ooo
Zl
Step (ED » Step (f) x
Step ;Q1)
Step (ED K Step CF) x
Step (62)
80,000
Step x Step (F)
Tier 1
Tier 2
Tier 3
12,
500
25,000
50,000
J
(J1)
CJ3)
Part V On-Hater Amount Needed to be Identified, but not Contracted for
in Advance (barrels/clay)
Tier 1
Tier 2
Tier 3
25,
000
30,000
Part II Tier 1 - Step
Part II Tier 3 - Step
-------
Pt, 112, App. F
40 CFR Ch. I (7-1-04 Edition)
1.7 Plan lmplemt::i!>! ior.
1.7.1 Response Resources t'oi fcimali. Me-
dium, and Worst Case Spills
1.7.2 Disposal Flan,-;
1.7.3 Containment and Draintufe Plannint;
1.8 Sell-Inspection. Drills Exercises, and Re-
sponse Training
1.8.1 Facility Self-Inspection
1.8.1.1 Tank Inspection
1.8.1.2 Response Equipment Inspection
1.8.1.3 Secondary Containment Inspection
1.8.2 Facility Drills-Exercises
1.8.2.1 Qualified Individual Notification
Drill Logs
1.8.2.2 Spill Management Team Tabletop
Exercise Logs
1.8.3 Response Training
1.8.3.1 Personnel Response Training Los's
1.8.3.2 Discharge Prevention Meeting Log's
1.9 Diagrams
1.10 Security
2.0 Response Plan Cover Sheet
3.0 Acronyms
4.0 References
1.0 Model Facility-Specific Response Plan
(A) Owners or operators of facilities regu-
lated under this part which pose a threat of
substantial harm to the environment by dis-
charging oil into or on navigable waters or
adjoining shorelines are required to prepare
and submit facility-specific response plans to
EPA :;i accordance with the provisions in
this appendix. This appendix further de-
scribes the required elements in §112.20(hi.
(R) Response plans must be sent to the ap-
propriate EPA Regional office. Figure F-l oi
this Appendix lists each EPA Regional office
and the address where owners or operators
must submit their response plans. Those fa-
cilities deemed by the Regional Adminis-
trator iRA) 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 re-
quired in the model response plan is similar
to information currently maintained in the
facility's Spill Prevention. Control, and
Counter-measures (SPCC) Plan as i-equired by
10 CFR 112.3. In these cases, owners or opera-
tors may reproduce the information and in-
clude a photocopy in the response plan.
(C) A complex may develop a single re-
sponse plan with a set of core elements for
all regulating agencies and separate sections
for the non-transportation-related and trans-
portation-related components, as described
in §112.2Q(h). Owners or operators of large fa-
cilities that handle, store, or transport oil at
more than one geographically distinct loca-
tion (e.g., oil storage areas at opposite ends
of a single, continuous parcel of property)
shall, as appropriate, develop separate sec-
tions of the response plan for each storage
area.
86
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Environmental Protection Agency
Pt. 112, App. F
1.1
Several sections of the response plan shall
be co-located for easy access by response per-
sonnel during an actual emergency or oil dis-
charge. 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 nec-
essary to combat the discharge and be ar-
ranged so response actions are not delayed.
The Action Plan may be arranged in a num-
ber of ways. For example, the sections of the
Emergency Response Action Plan may be
photocopies or condensed versions of the
87
203-159 D-4
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Pt. 112, App. F
40 CFR Ch. I <7-l-04 Edffion)
forms included in the associated sections of
the response plan. Each Emergency Response
Action Plan section may he tabbed for quick
reference. The Action Plan shall be main-
tained in the front of the same binder that
contains the complete response plan or it
shall be contained in a separate binder. In
the latter case, both binders shall be kept to-
gether so that the entire plan can be
accessed by the qualified individual and ap-
propriate spill response personnel. The
Emergency Response Action Plan shall be
made up of the following sections;
1. Qualified Individual Information (Section
1.2) partial
2. Emergency Notification Phone List (Sec-
tion 1.3.1) partial
3. Spill Response Notification Form (Section
1.3.1) partial
4, Response Equipment List and Location
(Section 1.3.2) complete
5. Response Equipment Testing and Deploy-
ment (Section 1.3.3) complete
6, Facility Response Team (Section 1.3.4)
partial
7, Evacuation Plan (Section 1.3.5) condensed
8, Immediate Actions (Section 1.7.1) com-
plete
9. Facility Diagram (Section 1.9) complete
1.2 Facility Information
The facility information form is designed
to provide an overview of the site and a de-
scription of past activities at the facility.
Much of the information required by this
section may be obtained from the facility's
existing SPCC Plan.
1.2.1 Facility name and location: Enter fa-
cility name and street address. Enter the ad-
dress of corporate headquarters only if cor-
porate headquarters are physically located
at the facility. Include city, county, state,
sip code, and phone number.
1.2.2 Latitude and Longitude: Enter the
latitude and longitude of the facility. In-
clude degrees, minutes, and seconds of the
main entrance of the facility.
1.2.3 Wellhead Protection Area: Indicate if
the facility is located in or drains into a
wellhead protection area as defined by the
Safe Drinking Water Act of 1986 .'
The response plan requirements in the Well-
head Protection Program are outlined by the
1A wellhead protection area is defined as
the surface and subsurface area surrounding
a water well or wellfield, supplying a public
water system, through which contaminants
are reasonably likely to move toward and
reach such water well or wellfield. For fur-
ther information regarding State and terri-
tory protection programs, facility owners or
operators may contact the SDWA Hotline at
1-800-426-4791.
State or Territory in which the facility re-
sides.
1.2.4 Owner.'OpKTUtor: Write the name of
the company or person operating the facility
and the name of the person or company that
owns the facility, if the two are different.
List the address of the owner, if the two are
different.
1.2.5 Qualified Individual: Write the name
of the qualified individual for the entire fa-
cility. If more than one person is listed, each
individual indicated in this section shall
have full authority to implement the facility
response plan. For each individual, list:
name, position, home and work addresses
(street addresses, not P.O. boxes), emergency
phone number, and specific response training
experience.
1.2,6 Date of Oil Storage Start-up: Enter the
year which the present facility first, started
storing' oil,
1.2.7 Current Operation: Briefly describe
the facility's operations and include the
North American Industrial Classification
System (NAICS) code.
1,2.8 Dates and Type of Substantial Expan-
sion: Include information on expansions that
have occurred at the facility. Examples of
such expansions include, but are not limited
to: Throughput expansion, addition of a
product line, change of a product line, and
installation of additional oil storage capac-
ity. The data provided shall include all facil-
ity historical information and detail the ex-
pansion of the facility. An example of sub-
stantial expansion is any material alteration
of the facility which causes the owner or op-
erator of the facility to re-evaluate and in-
crease the response equipment necessary to
adequately respond to a worst case discharge
from the facility.
Date of Last Update:
FACILITY INFORMATION FORM
Facility Name:
Location (Street Address):
City: State: _ Zip: _" '_
County: Phone Number: ( )
Latitude: _ Degrees Minutes
Seconds
Longitude: Degrees Minutes
Seconds
Wellhead Protection Area: _
Owner:
Owner Location (Street Address):
(if different from Facility Address)
City: State: Zip:
County: Phone Number: ( )
Operator (if not Owner): _
Qualified Individual(s): (attach additional
sheets if more than one)
Name:
Position:
Work Address:
Home Address:
Emergency Phone Number: ( )
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Environmental Protection Agency
Pt. 112, App. F
Date of Oil Storage Start-up:
Current Operations;
Date(s) and Typets) of Substantial Expan-
sion(s):
(Attach additional sheets if necessary)
/,,? Emergency Response Information
(A) The information provided in this sec-
tion shall describe what will be needed in aa
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 Emer-
gency Notification Phone List in section
1.3,1 identifies and prioritizes the names and
phone numbers of the organizations and per-
sonnel that need to be notified immediately
in the event of an emergency. This section
shall include all the appropriate phone num-
bers 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 dis-
charge, any employee on site could imme-
diately notify the appropriate parties.
(2) The Spill Response Notification Form
in section 1.3.1 creates a checklist, of infor-
mation that, shall be provided to the Na-
tional Response Center (NRC) and other re-
sponse personnel. All information on this
checklist must be known at the time of noti-
fication, or be in the process of being' col-
lected. This notification form is based on a
.similar form used by the NRC. Note: Do not
delay spill notification to collect the infor-
mation 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 re-
garding response equipment tests and de-
ployment drills. Response equipment deploy-
ment exercises shall be conducted to ensure
that response equipment is operational and
the personnel who would operate the equip-
ment in a spill response are capable of de-
ploying and operating it. Only a representa-
tive sample of each type of response equip-
ment needs to be deployed and operated, as
long as the remainder is properly main-
tained. If appropriate, testing of response
equipment may be conducted while il is
being deployed. Facilities without facility-
owned response equipment must ensure that
the oil spiil 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 avail-
ability), which satisfy Oil Pollution Act
(OPA) response exercise requirements.
io) Section 1.3.4 lists the facility response
personnel, including those employed by the
facility and those under contract to the fa-
olit.y 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 respond-
ing to emergencies, including oil discharges.
even when they are not physically present at
the. site. An example of this type of person
wuuld be the Building Engineer-in-Charge or
Plant Fire Chief. The second form is a list of
th« Emergency Response Contractors (both
primary and secondary) retained by the fa-
cility. Any changes in contractor status
must he 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 Re-
sponse Team List, which shall be composed
o! both emergency response personnel (ref-
erenced by job title'position) and emergency
response contractors, included in one of the
t\\-.i lists described above, that will respond
immediately upon discovery of an oil dis-
charge or other emergency (i.e.. the fiist
people to respond). These are to be persons
normally on the facility premises or primary
response contractors. Examples of these per-
sonnel would be the Facility Hazardous Ma-
terials (HAZMATi Spill Team 1, Facility
Fire Engine Company 1, Production Super-
visor, or Transfer Supervisor. Company per-
sonnel must be able to respond immediately
ami adequately if contractor support is not
available.
'tit Section 1.3.5 lists factors that must, as
appropriate, be considered when preparing an
evacuation plan.
|?) Section 1.3,6 references the responsibil-
ities of the qualified individual for the facil-
ity in the event of an emergency
i'Bi The information provided in the emer-
gency response section will aid in the assess-
ment of the facility's ability to respond to a
worst case discharge and will identify addi-
tional assistance that may be needed. In ad-
dition. the facility owner or operator may
want to produce a wallet-size card con-
taining a checklist of the immediate re-
sponse and notification steps to be taken in
the- event of an oil discharge.
/ 3.1 .Votificution
Da< ft of Last, Update
89
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Pt. 112, App, F
40 CFR Ch. I (7-1-04 Edition)
EMERGENCY NOTIFICATION PHONE LIST WHOM
To NOTIFY
Reporter's Name:
Date: __ _
Facility Name:
Owner Name:
Facility Identification Number:
Date and Time of Each NRG Notification:
Phone No.
Organization Phone No.
1. National Response Certer (NRG): 1-80CMI24-8802
2. Qualified Individual:
Evening Phone:
3. Company Response Team:
Evening Phone;
4. Federal On-Scene Coordinator
(QSC) and/or Regional Response
Center (RRCj:
Evening Phone(s)
Pager Number(s):
5. Local Response Team (Fire
Dept.Cooperatives):
6. Fire Marshall:
Evening Phone:
7.. State Emergency Response Com-
mission (SERC).
Evening Phone;
8. State Police:
9- Local Emergency Planning Com-
mittee (LEPC):
10. Local Water Supply System.
Evening Phone:
11. Weather Report:
12, Local Television/Radio Station
for Evacuation Notification-
SPILL RKSPONBH NOTIFICATION FORM
Reporter's Last Name:
First:
M.I.: . .' .'. ' ' "\. '..' '"
Position:
Phone Numbers:
Day ( )
Evening ( )
Company:
Organization Type:
Address: _ __ _
City: _ __ _
State: .. _
Zip: _
Were Materials Discharged? (Y.N) Con-
fidential? (Y.'N)
Meeting Federal Obligations to Report?
(Y.N) Date Called:
Calling for Responsible Party? (Y/N)
Time Called:
Incident Description
Source and/or Cause of Incident:
Date of Incident:
Time of Incident: AM'PM
Incident Address'Loeation:
Nearest City:
State:
County: Zip:
Distance from City: Units of Measure:
Direction from City:
Section: Township: Range:
Borough:
Container Type: Tank Oil Storage Ca-
pacity: Units of Measure:
Facility Oil Storage Capacity: _ Units
of Measure:
Facility Latitude: Degrees Min-
utes Seconds
Facility Longitude: Degrees Min-
utes Seconds
90
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Environmental Protection Agency
Pt. 112, App. F
CHRIS Code
Discharged quan-
tity
Unit of measure
Material Dis-
charged in water
Quantity
Unit of measure
Response Action
Actions Taken to Correct. Control or Miti-
gate Incident:
Impact
Number of Injuries: Number of Deaths:
Were there Evacuations'? (Y-:N) Num-
ber Evacuated:
Was there any Damag'e? (Y/N)
Damage in Dollars (approximate):
Medium Affected:
Description:
More Information about Medium:
Additional Information
Any information about the incident not re-
corded elsewhere in the report:
Caller Notifications
EH A? USCG? (Y-N) State?
(Y/N)
Other? iY-N> Describe:
1.3.2 Response Equipment List
Date of Last Update:
FACILITY RESPONSE EQUIPMENT LIST
1. Skimmers/Pumps—Operational Status:
Type, Model, and Year:
Type ' Model Year
Number:
Capacity: gal, min.
Daily Effective Recovery Rate:
Storage Location(s):
Date Fuel Last Changed:
2. Boom—Operational Status:
Type. Model, and Year:
Type Model Year
Number:
Size (.length': ft.
Containment Area: scj, ft.
Storag-e Location:
3, Chemicals Stored (Dispersants listed on
EPA's NCP Product Schedule)
Type
Amount
Date : Treatment j Storage
purchased j capacity ^ location
Were appropriate procedures used to re-
ceiye approval for use of dispersants in ac-
cordanoe with the NCP {40 CFR 300.910) and
the Area Contingency Plan !ACP). where ap-
plieaMe? (Y/N).
Name and State of On-Scene Coordinator
(OSC) authorizing- use:
Date Authorized:
4. Dispersant Dispensing- Equipment Oper-
ational Status:
Type and year
=*>«'* : SS
Response
time
(minutes)
91
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Pt. 112, App. F
Type and year
40 CFR Ch. I (7-1-04 Edition)
• <*•*** I PS
5. Sorbents—Operational Status:
Type and Year Purchased;
Amount: __
Absorption Capacity (gal.):
Storage Location(s):
6. Hand Tools—Operational Status:
Type and year
Quantity
Storage
location
7. Communication Equipment (include op-
erating frequency and channel and/or cel-
lular phone numbers)—Operational Status:
Type and year
Quantity
Storage location/
number
8. Fire Fighting and Personnel Protective
Equipment—Operational Status:
Type and year
9, Other (e.g., Heavy Equipment, Boats and
Motors)—Operational Status:
Type and year
Quantity
Storage
location
1.3,3 Response Equipment Testing/Deployment
Date of Last Update:
Response Equipment Testing and
Deployment Drill Log
Last Inspection or Response Equipment Test
Date: _ ,
Inspection Frequency:
Last Deployment Drill Date:
Deployment Frequency:
Oil Spill Removal Organization Certification
(if applicable):
1,3.4 Personnel
Date of Last Update:
92
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Environmental Protection Agency
Pt. 112, App, F
EMERGENCY RESPONSE PERSONNEL
Company Personnel
Name
Phone"
Response lime
'
"* type/date
9
10.
11.
12.
1 Phone number 1o be used when person is not on-site.
EMERGENCY RESPONSE CONTRACTORS
Dale of Last Update.
Contractor
Phone
Response tirne
Contract responsibility'
" Indude evidence of contracts/agreements with response contractors to ensure the availability of personnel and response
equipment.
FACILITY RESPONSE TEAM
Date of Last Update:
Team member
Response time (minutes) ! Pnone or pager number (day/evening)
Qualified Individual:
93
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Pt. 112, App. F
40 CFR Ch. I (7-1-04 Edition)
FACILITY RESPONSE TEAM—Continued
Date of last Update:
Team member
Response time (minutes) i Phone or pager number (day/evening)
Note: If the facility uses contracted help in an emergency response situation, the owner of operator must provide the contrac-
tors' names and review the contractors' capacities to provide adequate personnel and response equipment.
1.3.5 Evacuation Plans
1.3,5.1 Based oil the analysis of the facil-
ity, as discussed elsewhere in the plan, a fa-
cility-wide evacuation plan shall be devel-
oped. In addition, plans to evacuate parts of
the facility that are at a hig-h risk of expo-
sure in the event of a discharge or other re-
lease must be developed. Evacuation routes
must be shown on a diagram of the facility
(see section 1.9 of this appendix). When de-
veloping evacuation plans, consideration
must be given to the following factors, as ap-
propriate:
(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 condi-
tions (if applicable):
(6) Arrival route of emergency response
personnel and response equipment:
(7) Evacuation rentes:
(8) Alternative routes of evacuation;
(9) Transportation of injured personnel to
nearest emergency medical facility;
(10) Location of alarm-notification sys-
tems;
(11) The need for a centralized check-in
area for evacuation validation (roll call):
(12) Selection of a mitigation command
center; and
(13) Location of shelter at the facility as
an alternative to evacuation.
1.3.5.2 One resource that may tie helpful
to owners or operators in preparing this sec-
tion of the response plan is The Handbook of
Chemical Hazard Analysis Procedures by the
B'ederal Emergency Management Agency
(FEMA). Department of Transportation
(DOT), and EPA, The Handbook of Chemical
Hazard Analysis Procedures is available from:
FEMA . Publication Office, 500 C. Street,
S.W.. Washing-ton. DC 20472. (202) 646-3484.
1.3.5.3 As specified in §112.20(h)(I)(vi), the
facility owner or operator must reference ex-
isting community evacuation plans, as ap-
propriate.
1.3.6 Qualified Individual's Duties
The duties of the designated qualified indi-
vidual are specified in §112.20(hK3)(ix}, The
qualified individual's duties must be de-
scribed 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.
94
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Pt. 112, App. F
1.4 Hazard A[<<•<(«.• twn
This section requires the facility owner or
operator to examine the facility's operations
closely and t.o predict where discharges could.
occur. Hazaid evaluation ia a widely used in-
dustry practice that allows facility owners
or operators to develop a complete under-
standing of potential hazards and the re-
sponse actions necessary to address these
hazards. The Handbook of Chemical Hazard
Analysis Procedures, prepared by the EPA.
DOT, and the PEMA and the Hazardous Mate-
rials Emergency Planning Guide (NRT--t>, pre-
pared by the National Response Team are
good references for conducting a hazard anal-
ysis. Hazard identification and evaluation
will assist facility owners or operators in
planning' for potential discharges, thereby
reducing the severity of discharge impacts
that may occur in the future. The evaluation
also may help the operator identify and cor-
rect potential sources of discharges. In addi-
tion, special hazards to workers and emer-
gency response personnel's health and safety
shall be evaluated, as well as the facility's
oil spill history.
1.1.1 Hazard Identification
The Tank and Surface Impoundment (SI)
forms, or their equivalent, that are part of
this section must be completed according to
the directions below. ("Surface Impound-
ment" 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 liq-
uids, 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 above-
ground tank identifiers with an "A" and be-
lowgrouud 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 appro-
priate forms:
(a) Tank or SI number--Using1 the afore-
mentioned identifiers (A or B) or multiple
reporting sheets, identify each tank or SI at
the facility that stores oil or hazardous, ma-
terials.
d> Tank Type 01 Surface Area-Year---for
each tank, import the type of tank (e.g-..
floating' topi, and the year the tank was
originally installed. If the tank has been re-
fabricated, the year that the latest refabrica-
tion was completed must be recorded in pa-
rentheses next to the year installed. For
each SI. record the surface area of the im-
poundment and the year it went into service
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Pt. 112, App. F
40 CFR Ch. I (7-1-04 Edition)
HAZARD IDENTIFICATION TANKS'
Date of Last Update:
Tank No.
Substance Stored
Callure/Cause
1 tank = any container that stores oil.
Attach as many sheets as necessary.
HAZARD IDENTIFICATION SURFACE IMPOUNDMENTS (Sis)
Date of Last Update'
SI No.
Substance Stored
Qu"*tored
Attach as many sheets as necessary.
1.4,2 Vulnerability Analysis
The vulnerability analysis shall address
the potential effects (i.e.. to human health.
property, or the environment) of an oil dis-
charge. 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 wild-
life and sensitive environments. Owners or
operators can use a comparable formula that
is considered acceptable by the RA. If a com-
parable formula is used, documentation of
the reliability and analytical soundness of
the formula must be attached to the re-
sponse plan cover sheet. This analysis must
be prepared for each facility and, as appro-
priate, must discuss the vulnerability of:
(1) Water intakes (drinking, cooling, or
other);
(2) Schools:
(3) Medical facilities:
(4) Residential areas;
(5s Businesses;
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Environmental Protection Agency
Pt. 112, App. F
(6) Wetlands or other sensitive environ-
ments: -'
t'7) Pish and wildlife:
;8) Lakes and streams:
(9) Endangered flora and fauna;
(10) Recreational areas;
(11) Transportation routes (air. land, and
water i;
(12) Utilities: and
(13) Other areas of economic importance
(e.g.. beaches, marinas i including terrestri-
ally sensitive environments, aquatic envi-
ronments, and unique habitats.
1.4.:-.
Each owner or operator Khali analyze the
probability of a discharge occurring at the
facility. This analysis shall incorporate fac-
tors such as oil discharge history, horizontal
range of a potential discharge, and vulner-
ability to natural disaster, and shall, as ap-
propriate. incorporate other factors such as
tank age. This analysis will provide informa-
tion for developing discharge scenarios for a
worst case discharge and small and medium
discharges and aid in the development of
techniques to reduce the size and frequency
of discharges. The owner or operator may
need to research the age of the tanks the oil
discharge history at the facility.
1.4.4
Kuportabl? Oil Spill
Briefly describe the facility's reportable
oil spill" history for the entire life of the fa-
cility to the extent that such information is
reasonably identifiable, including:
(1) Date of discharges):
(2) List of discharge causes;
(3) Materiai(s) discharged:
(4) Amount, discharged in gallons;
(5) Amount of discharge that reached navi-
gable waters, if applicable:
(6) Effectiveness and rapacity of secondary
containment:
(7) Clean-up actions taken;
(81 Steps taken to reduce possibility of re-
currence:
(9) Total oil storage capacity oi the tanklss
or impoundments s) from which the material
discharged:
(10) Enforcement actions:
-Refer to the DOONOAA "Guidance for Fa-
cility and Vessel Response Plans: Fish and
Wildlife and Sensitive Environments" (See
appendix E to this part, section 13. for avail-
ability).
•!As described in 40 CPR part 110. report-
able oil spills are those that: sa> violate ap-
plicable water quality standards, or tbi 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 ad-
joining shorelines.
ill; Effectiveness of monitorin« equip-
ment: and
112) Descriptions) of how each oil dis-
charge was detected.
The information solicited in this section
may be similar to requirements in 40 CFR
112,4(a). Any duplicate information required
by §112.4(a) may be photocopied and inserted.
L.'t I.)i!«:hurgv Scenario*
In this section, the owner or operator is re-
quired to provide a description of the facili-
ty's worst case discharge, as well as a small
and medium discharge, as appropriate, A
multi-level planning approach has been cho-
sen because the response actions to a dis-
charge (i.e., necessary response equipment.
products, and personnel) are dependent on
the magnitude of the discharge. Planning- for
lesser discharge is necessary because the
nature of the response may be qualitatively
different depending' on the quantity of the
discharge. The facility owner or operator
shall discuss the potential direction of the
discharge pathway.
1.5.1.1 To address multi-level planning re-
quirements, the owner or operator must con-
sider types of facility-specific discharge sce-
narios that may contribute to a small or me-
dium 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 trans-
portation;
(2) Facility maintenance:
(31 Facility piping:
(1) Pumping stations and sumps:
'5) Oil storage tanks:
(6) Vehicle refueling: and
i7i Age and condition of facility and com-
ponents.
1.5.1.2 The scenarios shall also consider
factors that afi'erf the response efforts re-
quired by the facility These include but are
not limited to:
(I) Size oi" the discharge:
(2) Proximity to downgradient wells, wa-
terways, and drinking water intakes:
<,3) Proximity to fish and wildlife and sen-
sitive environments:
(4) Likelihood that the discharge will trav-
el offsite u'.r.. topography, drainage);
(5s Location of the material discharged
(i e., on a concrete pad or directly on the
soil);
16) Material discharged:
(7) Weather or aquatic conditions (i.e..
river flow):
;8i Available remediation equipment;
(9) Probability of a chain reaction of fail-
ures; and
(10) Direction of discharge pathway.
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40 CFR Ch. I (7-1-04 Edition)
1.5.2 Worst Case Discharge
1,5,2.1 In this section, the owner or oper-
ator must identify the worst case discharge
volume at the facility. Worksheets for pro-
duction and non-production, facility owners
or operators to use when calculating worst
case discharge are presented in Appendix D
to this part. When planning1 for the worst
case discharge response, all of the aforemen-
tioned factors listed in the small and me-
dium discharge section of the response plan
shall be addressed.
1.5.2.2 For onshore storage facilities and
production facilities. permanently
manifolded oil storage tanks are defined as
tanks that are designed, installed, and/or op-
erated in such a manner that the multiple
tanks function as one storage unit (i.e.. mul-
tiple tank volumes are equalized). In this
section of the response plan, owners or oper-
ators 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 calcula-
tion, permanently manifolded oil storage
tanks that are separated by internal divi-
sions for each tank are considered to be sin-
gle tanks and individual manifolded tank
volumes are not combined,
1.6 Discharge Detection Systems
In this section, the facility owner or oper-
ator 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 facil-
ity owner or operator shall discuss how the
reliability of any automated system will be
checked and how frequently the system will
be inspected,
1.6.1. Discharge Detection by Personnel
In this section, facility owners or opera-
tors shall describe the procedures and per-
sonnel that will detect any discharge of oil
or release of a hazardous substance. A thor-
ough discussion of facility inspections must
be included. In addition, a description of ini-
tial response actions shall be addressed. This
section shall reference section 1,3.1 of the re-
sponse plan for emergency response informa-
tion.
1.6-2 Automated Discharge Detection
In this section, facility owners or opera-
tors 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 in-
cluded.
1.7 Plan Implementation
In this section, facility owners or opera-
tors must explain in detail how to imple-
ment 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 dis-
charges described in section 1.5 of the re-
sponse plan, This section shall include the
identification of response resources for
small, medium, and worst case discharges;
disposal plans; and containment and drain-
age 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 up-
date their plan after an oil discharge event
and the time frame to update the plan must
be described.
1.7.1 Response Resources for Small. Medium,
and Worst Case Discharage.i
1.7.1.1 Once the discharge scenarios have
been identified in section 1.5 of the response
plan, the facility owner or operator shall
identify and describe implementation of the
response actions. The facility owner or oper-
ator 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 capa-
bility are presented in Appendix E to this
part. In addition, steps to expedite the clean-
up of oil discharges must be discussed. At a
minimum, the following items must be ad-
dressed:
(1) Emergency plans for spill response;
(2) Additional response training;
(3) Additional contracted help;
(4) Access to additional response equip-
ment experts; and
(5) Ability to implement the plan including
response training and practice drills.
1.7.1.2A recommended form detailing im-
mediate actions follows.
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Environmental Protection Agency
OIL SPILL RESPONSE—IMMEDIATE ACTIONS
Pt, 112, App. F
1. Stop the product flow
2. Warn personnel
3, Shut off ignition
sources,
4. Initiate containment ...
Act quickly to secure
pumps, close valves,
etc.
Enforce safety and secu-
rity measures.
Motors, electrical circuits,
open flames, etc.
Around the tank and/or in
the water with oil
boom.
1-800-424-8802
5. Notify NRC
6. Notify OSC
7. Notify, as appropriate :
Source; FOSS, Oil Spill Response—Emergency Proce-
dures. Revised December 3, 1992.
1.7.2 Disposal Plans
1.7.2.1 Facility owners or operators must
describe how and where the facility intends
to recover, reuse, decontaminate, or dispose
of materials after a discharge has taken
place. The appropriate permits required to
transport or dispose of recovered materials
according to local. State, and Federal re-
quirements 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 mate-
rials, including drums, tank parts, valves,
and shovels:
(4) Personnel protective equipment;
(5) Decontamination solutions:
(61 Adsorbents; and
(7) Spent chemicals.
1.7.2.2 These plans must be prepared in ac-
cordance with Federal (e.g., the Resource
Conservation and Recovery Act [RCRAJ),
State, and local regulations, where applica-
ble. A copy of the disposal plans from the fa-
cility's SPCC Plan may be inserted with this
section, including any diagrams in those
plans.
Material
Disposal fa-
cility
Location
I RCRA per-
I mil/manifest
I
Containment and Drainage Planning
A proper plan to contain and control a dis-
charge through drainage may limit the
threat of harm to human health and the en-
vironment. This section shall describe how
to contain and control a discharge through
drainage, including':
il) The available volume of containment
tuse 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 sep-
arators 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' re-
quirements for drainage contained in 40 CFB
part 112, subparts A through C. A copy of the
containment and drainage plans that are re-
quired in 40 CPR part 112, subparts A
through C may be inserted in this section.
including' any diagrams in those plans.
NOTE: The general permit for stormwater
drainage may contain additional require-
ments.
1.8 Self-Inspection, Drills/Exercises, and
Response Training
The owner or operator must develop pro-
grams for facility response training and for
drills/exercises according to the require-
ments 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 re-
quired by this section is also contained in
the SPCC Plan required by 40 CFR 112.3.
These logs may be included in the facility re-
sponse plan or kept as an annex to the facil-
ity response plan.
1.8.1 Facility Self-Inspection
Under 40 CFH 112.7te), you must, include
the written procedures and records of inspec-
tions 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 inspec-
tions of each container and secondary con-
tainment required by 40 CPR 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 in-
spect: and (2i a method of recording the ac-
tual inspection and its findings. You must
note the date of each inspection. You must
keep facility response plan records for five
years. You must keep SPCC records for three
years.
1.8.1.1. Tank Inspection
The tank inspection checklist presented
below has been included as guidance during'
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Pt. 112, App. F
40 CFR Ch, I (7-1-04 Edition)
inspections and monitoring. Similar require-
ments exist in 40 CPE part 112, snbparts A
through C, Duplicate Information from the
SPCC Plan may be photocopied and inserted
in tills section. The inspection checklist con-
sists of the following items:
TANK INSPECTION CHECKLIST
1. Check tanks for leaks, specifically looking-
for:
A, drip marks;
B. discoloration of tanks:
C, puddles containing spilled or leaked ma-
terial;
D. corrosion:
E, cracks; and
F. localized dead vegetation.
2. Check foundation for:
A. cracks;
B. discoloration;
C. puddles containing spilled or leaked ma-
terial;
D. settling;
E. gaps between tank and foundation: and
F. damage caused by vegetation roots.
3. Check piping- for:
A. droplets of stored material:
B, discoloration;
C. corrosion;
D- bowing of pipe between supports;
E. evidence of stored material seepage
from valves or seals; and
F. localized dead vegetation.
TANK/SURFACE IMPOUNDMENT INSPECTION LOG
Inspector
Tank or Sl#
Date
Comments
1.8.1.2 Response Equipment Inspection
Using the Emergency Response Equipment
List provided in section 1.3,2 of the response
plan, describe each type of response equip-
ment, checking for the following:
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Environmental Protection Agency
Pt. 112, App. F
Response Equipment Checklist
1. Inventory (item and quantity):
2. Storage location;
3. Accessibility (time to access and re-
spond);
4. Operational status/condition;
5. Actual use/testing (last test date and fre-
quency of testing): and
6. Shelf life (present age, expected replace-
ment date).
Please note any discrepancies between this
list and the available response equipment.
RESPONSE EQUIPMENT INSPECTION LOG
[Use section 1.3.2 of the response plan as a checklist]
1.8.1.3 Secondary Containment Inspection
Inspect the secondary containment (as de-
scribed in sections 1.4.1 and 1.7.2 of the re-
sponse plan), checking the following:
Secondary Containment Checklist
1. Dike or berm system.
A. Level of precipitation in dike/available
capacity:
B. Operational status of drainage valves;
C. Dike or berm permeability:
D. Debris;
B. Erosion:
F. Permeability of the earthen floor of
diked area; and
O. Location,status of pipes, inlets, drain-
age beneath tanks, etc.
2. Secondary containment
A. Cracks;
B. Discoloration:
C. Presence of spilled or leaked material
(standing liquid):
D. Corrosion: and
E. Valve conditions.
3. Retention and drainag'e ponds
A. Erosion;
B. Available capacity;
C. Presence of spilled or leaked material;
D. Debris; and
E. Stressed vegetation.
The tank inspection checklist presented
below has been included as guidance during
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Pt. 112, App. F
inspections and monitoring'. Similar require-
ments exist in 40 CFR part 112, subparts A
through C. Similar requirements exist in 40
CFR 112.7(e). Duplicate information from the
SPCC Plan may be photocopied and inserted
in this section.
1.8.2 Facility Drills/Exercises
(A) CWA section 311(j)(5), as amended by
OPA, requires the response plan to contain a
description of facility drills/exercises. Ac-
cording 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, sec-
tion 13, for availability) would satisfy a fa-
cility'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 ap-
proval 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, equip-
ment deployment exercises, and unan-
nounced exercises. External exercises in-
clude Area Exercises. Credit for an Area or
Facility-specific Exercise will be given to
the facility for an actual response to a dis-
charge 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 fa-
cility owner or operator to provide a descrip-
tion of the drill/exercise program to be car-
ried out under the response plan. Qualified
Individual Notification Drill and Spill Man-
agement Team Tabletop Drill logs shall be
provided in sections 1.8.2.1 and 1.8.2.2, respec-
tively. These logs may be included in the fa-
cility 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.
1.8.2.1 Qualified Individual Notification Drill
Logs
Qualified Individual Notification Drill Log-
Date: _ _ _
Company:
40 CFR Ch. I (7-1-04 Edition)
Qualified Individual(s):
Emergency Scenario:
Evaluation:
Changes to be Implemented:
Time Table for Implementation:
1.8.2.2 Spill Management Team Tabletop
Exercise Logs
Spill Management Team Tabletop Exercise
Log
Date: _ _
Company:
Qualified Individual(s): _
Emergency Scenario:
Evaluation:
Changes to be Implemented:
Time Table for Implementation:
1.8.3 Response Training
Section 112.21(a) requires facility owners or
operators to develop programs for facility re-
sponse 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 pro-
gram acceptable to the RA. The training ele-
ments are available from the USCG Office of
Response (G-MOR) at (202) 267-0518 or fax
(202) 267-4085. Personnel response training
logs and discharge prevention meeting logs
shall be included in sections 1.8.3.1 and 1.8.3.2
of the response plan respectively. These logs
may be included in the facility response plan
or kept as an annex to the facility response
plan.
1.8.3.1 Personnel Response Training Logs
PERSONNEL RESPONSE TRAINING LOG
Name
Response training/date and number of
hours
Prevention training/date and number of
hours
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Environmental Protection Agency
PERSONNEL RESPONSE TRAINING Loo—Continued
ft. 112, App. F
Name
Response irainmg/date aod number of ' Prevention training/date and number of
hours ; hours
1.8.3.2 Discharge Prevention Meetings Logs
DISCHARGE PREVENTION MEETING LOG
late:
Attendees:
Subject/issue identified
Required actors
implementation date
4.
1.9 Diagrams
The facility-specific response plan shall in-
olude the following: diagrams. Additional dia-
grams that would aid in the development of
response plan sections may also toe included.
(1) The Site Plan Diagram shall, as appro-
priate, include and identify:
(A) the entire facility to scale:
(B) above and below ground bulk oil stor-
age tanks;
(C) the contents and capacities of bulk oil
storage tanks:
(D) the contents and capacity of drum oil
storage areas:
IE) the contents and capacities of surface
impoundments;
(P) process buildings;
(G) transfer areas;
(H> secondary containment systems (loca-
tion and capacity);
(I) structures where hazardous materials
are stored or handled, including' mate-
rials stored and capacity of storage;
(J) location of communication and emer-
gency response equipment:
(K) location of electrical equipment which
contains oil: and
(L) for complexes only, the interfacets)
(i.e., valve or component) between the
portion of the facility regulated by EPA
and the portion! s) regulated by other
Agencies, In most, cases, this interface is
defined as the last valve inside secondary
containment before piping' leaves the sec-
ondary containment area to connect to
the transportation-related portion of the
facility (i.e., the structure used or in-
tended to be used to transfer oil to or
from a vessel or pipeline). In the absence
of secondary containment, this interface
is the valve manifold adjacent to the
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Pt. 112, App. F
40 CFR Ch, I (7-1-04 Edition)
tank nearest the transfer structure as de-
scribed above. The interface may "be de-
fined differently at a specific facility if
agreed to by the RA and the appropriate
Federal official.
(2) The Site Drainage Plan Diagram shall, as
appropriate, include:
(A) major sanitary and storm sewers, man-
holes, and drains;
(B) weirs and shut-off valves:
(C) surface water receiving streams;
(D) fire fighting water sources:
(E) other utilities;
(F) response personnel ingress and egress:
(G) response equipment transportation
routes; and
(H) direction of discharge flow from dis-
charge points,
(3) The Site Evacuation Plan Diagram shall,
as appropriate, include:
(A) site plan diagram with evacuation
route(s); and
(B) location of evacuation regrouping:
areas.
1.70 Security
According to 40 CFR 112.7(gr> facilities are
required to maintain a certain level of secu-
rity, as appropriate. In this section, a de-
scription of the facility security shall be pro-
vided and include, as appropriate;
(1) emergency cut-off locations (automatic
or manual valves);
(2) enclosures (e.g., fencing, etc.):
(3) guards and their duties, day and night;
(4) lighting;
(5) valve and pump locks; and
(6) pipeline connection caps.
The SPCC Plan contains similar informa-
tion. Duplicate information may be
photocopied and inserted in this section.
2.0 Response Plan Cover Sheet
A three-page form has been developed to be
completed and submitted to the RA by own-
ers or operators who are required to prepare
and submit a facility-specific response plan.
The cover sheet (Attachment F-l) must ac-
company the response plan to provide the
Agency with basic information concerning
the facility. This section will describe the
Response Plan Cover Sheet and provide in-
structions for its completion.
2.1 General Information
Owner/Operator of Facility: Enter the name
of the owner of the facility (if the owner is
the operator). Enter the operator of the fa-
cility if otherwise. If the owner/operator of
the facility is a corporation, enter the name
of the facility's principal corporate execu-
tive. Enter as much of the name as will fit in
each section.
(1) Facility Name: Enter the proper name of
the facility.
(2) Facility Address: Enter the street ad-
dress, city, State, and zip code,
(3) Facility Phone Number: Enter the phone
number of the facility.
(4) Latitude and Longitude: Enter the facil-
ity latitude and longitude in degrees, min-
utes, and seconds.
(5) Dun and Bradstreet Number: Enter the
facility's Dun and Bradstreet number if
available (this information may be obtained
from public library resources).
(6) North American Industrial Classifica-
tion System (NAICSj Code: Enter the facili-
ty's NAICS code as determined by the Office
of Management and Budget (this information
may be obtained from public library re-
sources.)
(7) Largest Oil Storage Tank Capacity: Enter
the capacity in GALLONS of the largest
aboveground oil storage tank at the facility.
(8) Maximum Oil Storage Capacity: Enter the
total maximum capacity in GALLONS of all
aboveground oil storage tanks at the facil-
ity.
(9) Number of Oil Storage Tanks: Enter the
number of all aboveground oil storage tanks
at the facility.
(10) Worst Case Discharge Amount: Using in-
formation from the worksheets in Appendix
D, enter the amount of the worst case dis-
charge in GALLONS.
(11) Facility Distance to Navigable Waters:
Mark the appropriate line for the nearest
distance between an opportunity for dis-
charge (i.e., oil storage tank, piping, or
flowline) and a navigable water.
2.2 Applicability of Substantial Harm Criteria
Using the flowchart provided in Attach-
ment C-I to Appendix C to this part, mark
the appropriate answer to each question. Ex-
planations 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, documenta-
tion of the reliability and analytical sound-
ness of the formula must be attached to the
response plan cover sheet.
2.3 Certification
Complete this block after all other ques-
tions have been answered.
3.0 Acronyms
ACP: Area Contingency Plan
ASTM: American Society of Testing Mate-
rials
bbls: Barrels
bpd: Barrels per Day
bph: Barrels per Hour
CHRIS: Chemical Hazards Response Informa-
tion System
CWA: Clean Water Act
DOI: Department of Interior
DOC: Department of Commerce
104
-------
nvironmental Protection Agency
Pt. 112, App. F
)OT: Department of Transportation
IPA: Environmental Protection Agency
'EMA: Federal Emergency Management
Agency
'R: Federal Register
al: Gallons
pm: Gallons per Minute
tAZMAT: Hazardous Materials
jEPC: Local Emergency Planning1 Com-
mittee
IMS: Minerals Management Service (part of
DOI)
IAICS: North American Industrial Classi-
fication System
JCP: National Oil and Hazardous Substances
Pollution Contingency Plan
IOAA: National Oceanic and Atmospheric
Administration (part of DOC)
IRC: National Response Center
fRT: National Response Team
)PA: Oil Pollution Act of 1990
)SC: On-Scene Coordinator
'REP: National Preparedness for Response
Exercise Program
IA: Regional Administrator
ICRA: Resource Conservation and Recovery
Act
IRC: Regional Response Centers
IRT: Regional Response Team
iSPA: Research and Special Programs Ad-
ministration
5ARA: Superfund Amendments and Reau-
thorization Act
•5ERC: State Emergency Response Commis-
sion
5DWA: Safe Drinking Water Act of 1986
51: Surface Impoundment
5PCC: Spill Prevention, Control, and Coun-
termeasures
JSCG: United States Coast Guard
4.0 References
CONCAWE. 1982. Methodologies for Hazard
Analysis and Risk Assessment in the Petro-
eum Refining and Storage Industry. Pre-
>ared by CONCAWE's Risk Assessment Ad-
loc Group.
U.S. Department of Housing and Urban De-
,'elopment. 1987. Siting of HUD-Assisted
Projects Near Hazardous Facilities: Accept-
ible Separation Distances from Explosive
ind Flammable Hazards. Prepared by the Of-
Ice of Environment and Energy, Environ-
nental Planning Division, Department of
lousing and Urban Development. Wash-
ngton, DC.
U.S. DOT, FEMA and U.S. EPA. Handbook
)f Chemical Hazard Analysis Procedures.
U.S. DOT, FEMA and U.S. EPA. Technical
3-uidance for Hazards Analysis: Emergency
Planning for Extremely Hazardous Sub-
stances.
The National Response Team. 1987. Haz-
ardous Materials Emergency Planning
Guide. Washington, DC.
The National Response Team. 1990. Oil
Spill Contingency Planning, National Sta-
tus: A Report to the President. Washington.
DC. U.S. Government Printing Office.
Offshore Inspection and Enforcement Divi-
sion. 1988. Minerals Management Service.
Offshore Inspection Program.: National Po-
tential Incident of Noncompliance (PINC)
List. Reston. VA.
ATTACHMENTS TO APPENDIX F
Attachment F 1 -Response Plan Cover Sheet
This cover sheet will provide EPA with
basic information concerning the facility. It
must accompany a submitted facility re-
sponse plan. Explanations and detailed in-
structions can be found in Appendix F.
Please type or write legibly in blue or black
ink. Public reporting burden for the collec-
tion 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 re-
sponse. This estimate includes time for re-
viewing instructions, searching existing data
sources, gathering- the data needed, and com-
pleting and reviewing the collection of infor-
mation. Send comments regarding the bur-
den 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 Pennsyl-
vania Avenue, NW.. Washington, DC 20460:
and to the Office of Information and Regu-
latory Affairs, Office of Management and
Budget. Washington D.C. 20503.
GENERAL INFORMATION
Owner'Operator of Facility:
Facility Name:
Facility Address (street address or route):
City. State, and U.S. Zip Code:
Facility Phone No.:
Latitude (Degrees: North):
degrees, minutes, seconds
Dun & Bradstreet Number:l
Largest Aboveground Oil Storage Tank Ca-
pacity (Gallons):
Number of Aboveground Oil Storage Tanks:
Longitude (Degrees: West):
degrees, minutes, seconds
1 These numbers may be obtained from pub-
lic library resources.
105
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Pt. 113
40 CFR Ch. I (7-1-04 Edition)
North American Industrial Classification
System (NAICS) Code:1
Maximum Oil Storage Capacity (Gallons):
Worst Case Oil Discharge Amount (Gallons):
Facility Distance to Navigable Water. Mark
the appropriate line.
O-'/i mile _ 'Xi-'/a mile 'i-1 mile >1
mile
APPLICABILITY OF SUBSTANTIAL HARM
CRITERIA
Does the facility transfer oil over-water2
to or from vessels and does the facility have
a total oil storage capacity greater than or
equal to 42.000 gallons9
Yes
No _
Does the facility have a total oil storage
capacity greater than or equal to 1 million
gallons and, within any storage area, does
the facility lack secondary containment 2
that is sufficiently large to contain the ca-
pacity of the largest aboveground oil storage
tank plus sufficient freeboard to allow for
precipitation?
Yes
No
Does the facility have a total oil storage
capacity greater than or equal to 1 million
gallons and is the facility located at a dis-
tance 2 (as calculated using the appropriate
formula in Appendix C or a comparable for-
mula) such that a discharge from the facility
could cause injury to fish and wildlife and
sensitive environments? J
Yes
No
Does the facility have a total oil storage ca-
pacity greater than or equal to 1 million
gallons and is the facility located at a dis-
tance 2 (as calculated using the appropriate
formula in Appendix C or a comparable for-
mula) such that a discharge from the facil-
ity would shut down a public drinking
water intake? -
'Explanations of the above-referenced
terms can be found in Appendix C to this
part. If a comparable formula to the ones
contained in Attachment C-III is used to es-
tablish the appropriate distance to fish and
wildlife and sensitive environments or public
drinking water intakes, documentation of
the reliability and analytical soundness of
the formula must be attached to this form.
3 For further description of fish and wildlife
and sensitive environments, see Appendices
I. II, and III to DOC/NOAA's "Guidance for
Facility and Vessel Response Plans: Fish and
Wildlife and Sensitive Environments" (see
Appendix E to this part, section 13. for avail-
ability) and the applicable AGP.
Yes
No
Does the facility have a total oil storage
capacity greater than or equal to 1 million
gallons and has the facility experienced a re-
portable oil spill - in an amount greater thai
or equal to 10,000 gallons within the last 5
years?
Yes
No
CERTIFICATION
I certify under penalty of law that I have
personally examined and am familiar with
the information submitted in this document.
and that based on my inquiry of those indi-
viduals responsible for obtaining informa-
tion. I believe that the submitted informa-
tion is true, accurate, and complete.
Signature: _
Name (Please type or print):
Title:
Date:
[59 PR 34122, July 1, 1994: 59 FR 49006. Sept.
26, 1994. as amended at 65 FR 40816, June 30,
2000: 65 FR 43840, July 14, 2000: 66 FR 34561,
June 29. 2001: 67 FR 47152, July 17, 2002]
PART 113—LIABILITY LIMITS FOR
SMALL ONSHORE STORAGE
FACILITIES
Subpart A—Oil Storage Facilities
Sec.
113.1
113.2
113.3
113.4
Purpose.
Applicability.
Definitions.
Size classes and
associated liability
limits for fixed onshore oil storage facili-
ties. 1.000 barrels or less capacity.
113.5 Exclusions.
113.6 Effect on other laws.
AUTHORITY: Sec. 311(f)(2), 86 Stat. 867 (33
U.S.C. 1251 (1972)).
SOURCE: 38 FR 25440, Sept. 13. 1973, unless
otherwise noted.
Subpart A—Oil Storage Facilities
§113.1 Purpose.
This subpart establishes size classi-
fications and associated liability limits
for small onshore oil storage facilities
with fixed capacity of 1.000 barrels or
less.
106
-------
wironmental Protection Agency
113.2 Applicability.
This subpart applies to all onshore
II storage facilities with fixed capac-
.y of 1.000 barrels or less. When a dis-
aarge to the waters of the United
tates occurs from such facilities and
hen removal of said discharge is per-
xrmed by the United States Govern-
lent pursuant to the provisions of sub-
action 311(c)(l) of the Act, the liability
f the owner or operator and the facil-
,y will be limited to the amounts spec-
led in §113.4.
113.3 Definitions.
As used in this subpart. the following
arms shall have the meanings indi-
a/ted below:
(a) Aboveg round storage facility
leans a tank or other container, the
ottom of which is on a plane not more
tian 6 inches below the surrounding
arface.
(b) Act means the Federal Water Pol-
rtion Control Act, as amended, 33
f.S.C. 1151. et seq.
(c) Barrel means 42 United States gal-
3ns at 60 degrees Fahrenheit.
(d) Belowground storage facility
leans a tank or other container lo-
ated other than as defined as "Above-
round".
(e) Discharge includes, but is not lim-
bed to any spilling, leaking, pumping.
ouring, emitting, emptying or dump-
ag.
(f) Onshore Oil Storage Facility means
.ny facility (excluding motor vehicles
nd rolling stock) of any kind located
n, on, or under, any land within the
Inited States, other than submerged
and.
Cg) On-Scene Coordinator is the single
'ederal representative designated pur-
uant to the National Oil and Haz-
rdous Substances Pollution Contin-
•ency Plan and. identified in approved
legional Oil and Hazardous Substances
'Dilution Contingency Plans.
(h) Oil means oil of any kind or in
,ny form, including but not limited to.
>etroleum. fuel oil, sludge, oil refuse.
aid oil mixed with wastes other than
Iredged spoil.
(i) Remove or removal means the re-
noval of the oil from the water and
shorelines or the taking of such other
tctions as the Federal On-Scene Coor-
linator may determine to be necessary
§m.6
to minimize or mitigate damage to the
public health or welfare, including but
not limited to. fish, shellfish, wildlife.
and public and private property, shore-
lines, and beaches.
Additionally, the terms not otherwise
defined herein shall have the meanings
assigned them by section 311 of the
Act,
§113.4 Size classes and associated li-
ability limits for fixed onshore oil
storage facilities, 1,000 barrels or
less capacity.
Unless the United States can show
that oil was discharged as a result of
willful negligence or willful mis-
conduct within the privity and knowl-
edge of the owner or operator, the fol-
lowing limits of liability are estab-
lished for fixed onshore facilities in the
classes specified:
(a) Abovegrouml storage.
Size cfass
Capacity (bar- j Lirnst
I rels)' ! (dollars)
'. Up to 10 ! 4.000
i 11 to 170 : 60,000
171 to 500 ... ; 150,000
i 501 to 1.000 . ' 200.000
(b) Belowground storage.
Size class
III
IV
T ' I
, Capacity (bar- ; Linii
I rels) (dollars)
, Up to 10 ! 5200
I 11 to 170 _ 78.000
! 171 to 500 i 195,000
i 501 to 1,000 .. 260,000
§ 113.5 Exclusions.
This subpart does not apply to:
(a) Those facilities whose average
daily oil throughout is more than their
fixed oil storage capacity.
(b) Vehicles and rolling stock.
§113.6 Effect on other laws.
Nothing herein shall be construed to
limit the liability of any facility under
State or local law or under any Federal
law other than section 311 of the Act.
nor shall the liability of any facility
for any charges or damages under
State or local law reduce its liability
to the Federal Government under sec-
tion 311 of the Act. as limited by this
subpart.
107
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Pt. 116
40 CFR Ch. 1 (7-1-04 Edition
PART 116—DESIGNATION OF
HAZARDOUS SUBSTANCES
Sec,
116,1 Applicability.
116.2 Abbreviations.
116.3 Definitions.
116.4 Designation of hazardous substances.
AUTHORITY: Sees. 3n
-------
nvironmenial Protection Agency
§116,4
(2) Tributaries of navigable waters of
he United States, including adjacent
retlands;
<3) Interstate waters, including- wet-
wids: and
(4) All other waters of" the United
•tates such as intrastate lakes, rivers.
treams. mudflats, sanclflats and wet-
inds. the use. degradation or destruc-
ion of which affect interstate com-
lerce including', but- not limited to:
Si) Intrastate lakes, rivers, streams.
.nd wetlands which are utilized by
literstate travelers for recreational or
ther purposes; and
(ii) Intrastate lakes, rivers, streams.
.nd wetlands from which fish or shell-
ish are or could be taken and sold in
nterstate commerce; and
(iii) Intrastate lakes, rivers, streams.
.nd wetlands which are utilized for in-
.ustrial purposes by industries in
nterstate commerce.
Navigable waters do not include prior
:onverted cropland. Notwithstanding
he determination of an area's status
.s prior converted cropland by any
»ther federal agency, for the purposes
>f the Clean Water Act, the final au-
.hority regarding Clean Water Act ju-
isdiction remains with EPA.
Offshore facility means any facility of
my kind located in, on, or under, any
)£ the navigable waters of the United
States, and any facility of any kind
vhich is subject to the jurisdiction of
,he United States and is located in, on,
>r under any other waters, other than
i vessel or a public vessel;
Onshore facility means any facility
including, but not limited to, motor
/ehicles and rolling stock) of any kind
ocated in. on, or under, any land with-
n the United States other than sub-
nergedland:
Otherwise subject to the jurisdiction of
he United States means subject to the
urisdictlon of the United States by
/irtue of United States citizenship.
Jnited States vessel documentation or
lumbering, or as provided for by inter-
national agreement, to which the
United States is a party.
A discharge in connection with activi-
ties under the Outer Continental Shelf
Lands Act or the Deepwater Port Act of
1974, or which may ajj'ect natural re-
sources belonging to, appertaining to, or
under the exclusive management author-
ity of the I'nited Stales (including re-
sources under (hi; Fishery Conservation
and Management Act of 1976), means: (1)
A discharge into any waters beyond the
contiguous zone from any vessel or on-
shore or offshore facility, which vessel
or facility is subject to or is engaged in
activities under the Outer Continental
Shelf Lands Act or the Deepwater Port
Act of 1974, and (2i any discharge into
any waters beyond the contiguous zone
which contain, cover, or support any
natural resource belonging to. apper-
taining to. or under the exclusive man-
agement authority of the United
States (including resources under the
Fishery Conservation and Management
Act of 1976).
Public vessel means a vessel owned or
bareboat-chartered and operated by the
United States, or a State or political
subdivision thereof, or by a foreign na-
tion, except when such vessel is en-
gaged in commerce
Territorial seas means the belt of the
seas measured from the line of ordi-
nary low water along that portion of
the coast which is in direct contact
with the open sea and the line marking
the seaward limit of inland waters, and
extending seaward a distance of 3
miles,
Vessel means every description of
watercraft or other artificial contriv-
ance used, or capable of being used, as
a means of transportation on water
other than a public vessel;
[43 PR 10474, Mar. 13. 1978: 43 PR 27533. June
26. 1978, as amended at 44 PR 10266. Feb. 16,
1979; 58 PR 45039. Aug. 25. 1993]
§116,4 Designation of hazardous sub-
stances.
The elements and compounds appear-
ing in Tables 116.4 A and B are des-
ignated as hazardous substances in ac-
cordance with section 311(b)(2XA) of
the Act. This designation includes any
isomers and hydrates, as well as any
solutions and mixtures containing
these substances. Synonyms and Chem-
ical Abstract System (CAS) numbers
have been added for convenience of the
user only. In ease of any disparity the
common names shall be considered the
designated substance.
109
-------
§H6.4
40 CFR Ch. 1 (7-1-04 Edition;
TABLE 116.4A — LIST OF HAZARDOUS SUBSTANCES
Common name CAS No
Acetaldehyde ' ,'5070
Acetic acid ; 64197
Acetic anhydride 103247
Acetone cyanohydrin i 75865
Acetyl bromide ' 506967
Acetyl chloride i 79367
Acrolein '. 107028
I
Asrylofiiirile , 107131
Adipic acid i 124049
Aldrin * 309002
Allyl alcohol ' 107186
Aliyl chloride j 1070V
Aluminum sulfate , 10043013
Ammonia • 7664417
Ammonium acetate 631618
Ammonium benzoate ' 1863634
Ammonium bicarbonate 1066337
|
Ammonium bichromate • 7789095
Ammonium bifluoride j 1341497
Ammonium bisulfite I 10192300
Ammonium carbamate i I'M^SC
Ammonium carbonate i 506876
Ammonium chloride 1 12125029
Ammonium chromate ; 7788989
Ammonium citrate dibasic j 3012655
Ammonium fluoborate j 13826830
Ammonium fluoride 12125018
Ammonium hydroxide ( 1336216
Ammonium oxalate : 6009707
i 5972736
1 4258492
Ammonium siiicofluoride 16919190
Ammonium sulfamate 7773060
Ammonium sylfide ' 12135761
Ammonium sutfite ! 10196040
i 10192300
Ammonium tartrate - 3164292
14307438
Ammonium thiocyanale : 1762954
Amly acetate 628637
Aniline 62533
Antimony pentachloride • 7647189
Antimony potassium tartrate 28300745
Antimony tribrcmide 7789619
Antimony trichloride 10025919
Antimony trifiuoride 7783564
Antimony trioxide 1309644
Arsenic disulfide 1303328
Arsenic pentoxide 1303282
Arsenic trichloride ; 7784341
Arsenic trioxide 132753G
Arsenic trisulfide 1303339
Barium cyanide ; 542621
Benzene . 71432
Benzoic acid 65850
Benzonitnle ' 10047C
Synonyms Isopiers • CAS No.
i Ethanal. ethyi aidsnyde. acetic aldehyde .
Glacial acetic acid, vinegar acid [
Acetic oxide, acetyi oxide -
2-methy!!actonitri!e. aipha- • •
nydroxyisobutyronstnie ,
2-propenal acrylic aldehyde, acrylaidehyde. ,
' acraidehyde
Cyanoemytene Fumtgrain, Ventox
propeneitrile. vmyi cyanide.
Hexanedicic acid . .. I
, Octalene. HHDN !
• ?-propen-1-ot. 1 -oropenol-3. vinyl carbinol i
3-chloropropene, 3-chloropropylerie. t
Chlorallylene.
J Alum i i
Acetic acid ammonium, salt I
i
Acid ammonium carbonate, ammonium hydro- ;
| gen carbonate. ;
Acid ammon.'um fluoride, ammonium hydrogen
fluoride.
Ammonium aminoformate
Ammonium muriate, sal ammoniac, salmiac i
Amchior
Diammonium cit'ate citric acid diammonium
sait.
Ammonium flyoroborate. ammonium
borofluoride j
; Neutral ammonium fluoride |
Ammonium fluosilicate j
Ammate, AMS. ammonium arnidosuifate
! ;
Tartaric acid ammonium sail '
Ammonium rhodanide, ammonium ' _
sulfocyanale. ammonium sulfocyanide, :
Arnylacetic ester ; iso- 123922
Pear oil ; sec- 626380
\ Banana oil tert- 625161
1 Aniline oil. phenylamine. aminobenzene. -,
aminophen. kyanol.
Tartar emetic, tartrated antimony, tartarized
anlimony, potassium antimonyltartrate.
Butler of antimony ! , -..
Antimony fluoride
Diantimony trioxide, flowers of anlimony
Red arsenic sulfide i
Arsenic acid anhydride, arsenic oxide s
Arsenic chloride, aisenious chloride, arsencus ' -
chloride, butler of arsenic.
Arsenious acid, arsenious oxide, white arsenic _
Arserious suifide, yeilow arsenic suifide
Cyclohexatriene. benzol
Benzenecarboxyiic acid, phenylformic acid
.; dracylic acid.
Phenyl cyanide, cyanobenzene :
110
-------
nvfronmental Protection Agency
§116.4
TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued
Common name CAS No Synonyms j Isorners | CAS No.
enzoyl chloride
enzyj chloride -
eryllium chloride
erylliurn fluoride
eryliiym nitrate
utyl acetate
utylamine
"butyl phthalate
utyric acid
•admium acetate
admJum bromide
•admium chloride
alcium arsenate
alcium arsenite
aicium carbide
;alcium chrornate
•alcium cyanide
Calcium dodecylbenzenesulfonate
•aicium hypochiorite
•<3tptan
:arbaryi
:arbofuran
-arbon disuifide
:arbon tetrachloride - .
98884 Benzenecarbonyl chloride
100447
778747S
7787497
7787555
13597994
123864
109739
84742
107926
543908
7789426
10108642
7778441
52740168
j
Acetic acid butyl ester iso- ... .
' sec- ....
left- .....
1 -aminobutane , »..,,,,. ,., iso- .....
sec- ....
sec- ...,
tert- .....
1,2'benzenedicarboxylic acid, dibutyi ester, , ,
dibutyl phthaiate.
Butanoic acid, ethylacetic acid ,,..... ,,,.. , ISQ- .....
Tricaicium orthoarsen.^ie
75207 Carbide, acetyienogen
13765190 Calcium chrome yellow, geblin, yellow ultra-
marine
592018
26264062 ,,,,.,,,..., ..,, .«....,...< ,,
7778543 ,. .,.,,,......... ,
133062 | Orthocide-406, SR-406, Vancide-89 ~ i
63252 Sevin
1563662
75150
Furadan . j
Cartoon bisulfide, dithiocafbonic anhydride
56235 TetracMorornethane Perch toromethane ., , ,.,,.
Mordane ! 57749
Motine 75003
Toxichfor, chlofdan . .,,.. .. ,, ....,,,.,,,.. ...... , .. ,. .....
Ihiorobenzene j 108907 Monochlorobenzena. benzene chloride I
Ihlorotorm | 67663 Trichloromethane
;hlorpyritos • 2921882 Dursban •
iNorosuHonic acid j 7790945
Ihromic acetate - ; 1066304
;hromic acid ; 11115745
;hromic sulfate i 10101538
:hrornous chloride 10049055
krtialtous bromide j 7789437
Sulfuflc chlorohydrin
Chromic anhydride, chromium trtoxide ,
, , ,. , .„..,.„.„....... ..... .,..,.,
Cobalt bromide ,
;oabaltous formate ! 544183 ; Cobalt tormate
lobaltous sulfamate i 14017415 Cobalt sulfamate
^oumaphos 56724 f Co-Ral :
Iresol ; 1319773 ; Cresylic acid rn-
i i Hydroxytoluene o-
i ; P-
"rotonaldehyde j 4170303 2-butenal propy'ene aidelhyde
;upric acetate - 142712 ! Copper acetate, eryslalized verdigris '
iupric acetoarsenite j 12002038
;upric chloride 7447394
iupric nitrate i 3251238
;upric oxalate | 5893663
'upric sulfate i 7758987
"upric sulfate, ammoniated 10380297
;cjpric tartrate 815827
Cyanogen chloride 506774
:yclohexane ; 110827
> 4-0 add 94757
.',4-O ester '• 94111
94791
! 94804
: 1320189
1928387
1928616
i 1929733
2971382
Copper acetoarsenite, copper acetate arsenite |
Paris green
Copper chloride , .. .. i
Copper nitrate ' ..
Copper oxaiate ........ , , , ,
Copper sulfate ....... . . .,,.,...,,....,., ... ... ..... . ' .,....,... .
Amrrtonfated copper sulfate ,., j ..... ......
Copper tartrate ,
Hexahydrobenzene, hexamethyleoe. i
hexanaphthene i
2.4-dichiorophenoxyacetlc acid
2.4-dichiorophenoxyacelic acid ester '
i
: 25168267
, ,,« | . ,, ,. .......
1
110190
105464
540885
78819
513495
13952846
75649
79312
' 108394
i 95487
106445
I
i
I
111
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§116.4
40 CFR Ch. I (7-1-04 Edition)
TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued
Common name
DDT
Dicamba , . ,.
Dichtobenil
Dichtone ..... -
Dichforobenzene ..
Dichloropropane
Dichloropropene
Dichloropropene-dichioropropane
(mixture).
2 2-Dichloropropionic acid
Dichlorvos
Dicofol .. -
Oiethylamine
Dimethyiamrne
Dinifrobenzene (mixed)
Diquat
Disutfolon .
Diuron .. -,
Dodecyfbenzenesulfonic acid
Endosulfan
Endrin
Epichlorohydrin
Ethion
Elhylbenzene
Ethylenediamine-tetraacetic acid
(EDTA),
Ethylene dibromide . ..
Ferric ammonium citrate
Ferric chloride
Ferric fluoride .. -
Ferrous sutfate
Formaldehyde
Formic acid
Fumaric acid
Furfural
Guthion
Heptachlor ,
Hexachlorocyclopentadiene
Hydrochloric acid
Hydrofluoric acid
Hydrogen sulfide .,,
CAS No,
534671 1 1
50293
333415
1918009
1194656
1 1 7806
25321226
26638 1S7
26952238
8003198
75990
62737
115322
60571
109897
124403
25154545
51285
25321146
85007
2764729
298044
330541
27176870
115297
72208
106898
563122
100414
107153
60004
106934
107062
1185575
2944674
55488874
7705080
7783508
10421484
1 0028225
10045893
7758943
7720787
7782630
50000
64186
110178
98011
86500
76448
77474
7647010
7664393
74908
7783064
Synonyms
2-methoxy-3.6-dichlorobenzoic ackJ
2,6-dichlorobenzonitrile, 2,6-DBN
Phygon, dichloronapMhoquinone
Paramoth (Para)
Propylene dichloride
D-D mixture Vidden D
2 2-dichlorovinyl dimettiyl phosphate Vapona
Di{p-cN0rophenyl}-trichioromethy!cafbinol
DTMC, dicofol,
Alvit
Aldifen
DNT
Acjuacide
Dextrone, Reglone, Diquat dibromide .. ..
Di-syston
DCMU, DMU -
Thiodan
Mendrin, Compound 269
-chloropropylene oxide
Phenylethane
Edetic acid, Havidote, (ethylenedinitrilo)-
letraacetic acid.
1,2-dJbrornoethane acetylene dibromide sym-
dibromoethylene-
1 2-dlchloroethane sym-bichloroethane
Ammonium ferric citrate
Ammonium ferric oxalate
Floras martis, iron trichloride
tersulfate.
Green vitriol
Iron vitriol, iron sulfate, iron protosulfate
Methyl aldehyde, methanal formalin , , .
Metnanoic acid
Trans-butenedioic acid, trans-1,2-
ethylenedicarboxylic acid, boletic acid,
allomaleic aoid.
2-luraldehyde. pyromucic aldehyde
Susalhion, azinphos-methyl
Velsicol-104, Drinox, Heptagran
Perchlorocyclopentadiene
Hydrogen chloride, muriatic acid
Fluohydric acid
Hydrosutfuric acid sulfur hydride
Isomers
Ortho
Para
1.1
1.2
1,3
1.3
2.3
o-
p-
(25-)
(2.4-).
(2,6-)
24
2,6
3.4
CAS No,
95501
106467
78999
78875
142289
542756
78886
99650
528290
100254
329715
573568
121142
606202
610399
112
-------
wironmental Protection Agency
§116.4
TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued
Common name
>prene
)propanolamine
dodecylbenzenesultonate.
jpone
ad acetate
>afl arsenate
sad chloride
tad fluoborate
tad fluoride -
iad iodide
iad nitrate
>ad stearate .
tad sulfate - ---
iad sulfide
jad thiocyanate
ndane
•hium chromate
alathion
aleic acid ,
aleic anhydride
ercaptodirnethur
ercuric cyanide
ercuric nitrate
ercuric sulfate ...
ercuric thiocyanate
ercurous nitrate
ethoxyehfor
ethyi rnercaplan
ethyl methacrylate ...
ethyl parattiian ....
evinphos
exacarbate .
onoethylarnine
onomethyEamine
aied
aphthalerse .....
aphthenic acid
ickel ammonium sulfate -.
ickel chloride
ickei hydroxide
icket nitrate
ickei sulfate
(trie acid
itrobenzene
itrogen dioxide ....
itrophenol (mixed)
itrotoluene
araformaldehyde
arathion
erltachloroprMsnol
henol
hosgene
CAS No. ! Synonyms : Isomers j CAS No.
78795 2-methyl-1.3-butadiene !
42504461 -! : -
143500 Chlordecone 1,1a.3.3a,4,S,5,5a,5b.6- j
decachlor0octahydro-1,3,4-metheno-2B- i ;
cycbbuta(cd)penlalen-2-one. : i
301042 Sugar of Isad . !
7784409 , ! . ..
7645252 ! :
10102484 '•
7758954 • . . ! , .
13814965 Lead tiuoroborate
7783462 Lead dif'uonde. plumbous fluoride : ;
10101630
10099748 I ;
7428480 Stearic acid lead salt i j
1072351 ! ;
52652592 .. ... ... '
7446142 ' '
1314870 Galena ;
592870 Lead sutfocyanate j '
58899 Gamma-BHC, gamma-benzene hexachloride •
1 4307358
121755 PhospoShion
110167 Cis-butenedioic acid, cis*1.2- ... . .
ethylenedtearboxylic acid, toxilic acid. \
108316
203657
2,6-iurandione, cis-butenedioic anhydride, i
toxilic anhydride. 1
Mesurol •
592041 Mercury cyanide '•
10045940 Mercury nitrate, mercury pernftrate i
7783359
592858
7782867
10415755
72435
74931
80626
298000
7786347
315184
75047
74895
300765
91203
1338245
Mercury sulfate mercury persulfafe
Mercury thiocyanale. mercuric sultocyanate,
mercuric suHocyanide
Mercury protonitrate
DMDT, methoxy-DDT !
Methanethioi, mercaptomethane. methyl
sulfhydrate, Ihiomethyl alcohol.
Methacrylic acid methyl ester, methyl-2-rneth- j
yl-2-propenoate.
Nitrox-80
Phosdrin
Zectran
Ethylamme, aminoethane
Methylamtne, arninomethane ,
Dibrom ... .
White tar, tar camphor, napnffialin
Cyclohexanecarboxyiic ac*d
hexahydrobenzoic acid.
15699180 Ammonium nickel sulfate
37211055 Nteketous chloride
7718549
12054487 Niekeious hydroxide
14216752
7786814
7697372
98953
10102440
25154556
1321126
30525894
56382
87865
108952
75445
Nickelous sulfate , }
Aqua fortis
Nitrobenzol, oil of mirbane
Nitrogen tetraoxide
Mononrtrophenol i m- 554847
o- 88755
p- 100027
Ortho
88722
I Meta 99081
! Para , 99990
Paraform, Formagene, Triforrnol, polymerized ;
formaldehyde, polyoxymethylene.
DNTP Niran
POP Penta i
Carbolic acid, phenyl hydroxide
hydroxybenzene, oxybenzene.
Diphosgene, carbonyl chioride, chloroformyl
chloride
113
-------
§116.4
40 CFR Ch. I (7-1-04 Edition;
TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued
Common name
Phosphorus
Phosphorus oxychloride
Phosphorus pentasuffide
Phosphorus trichloride
Polyehorinated biphenyis
Potassium arssnate
Potassium bichromate
Potassium ehromate
Potassium cyanide
Potassium hydroxide
Potassium permanganate
Propionfc acid
Propionic anhydride
Ptopylene oxide
Quinoline
Resorcinol
Selenium oxide
Silver nitrate
Sodium
Sodium arsenate
Sodium bichromate
Sodium bifluorkle
Sodium bisulfite
Sodium chromate
Sodtum cyanide
Sodium dodecylbenzene-sulfonate
Sodium hydrosulfide
Sodium hydroxide
Sodium hypochlorite
Sodium methylate
Sodium nitrite
Sodium phosphate, dibasic
Sodium phosphate, tribasic
Strontium chromate
Strychnine
Styrene
Sulfuric acid
Sulfur monochjoride
2,4,5-T amines
CAS No.
7664382
7723140
10025873
1314803
7719122
1336363
7784410
10124502
7778509
7789006
151508
1310583
7722647
231 2358
79094
123626
75569
121299
121211
91225
108463
7446084
7761888
744023S
7631892
7784465
10588019
1333831
7631905
7775113
143339
2S15S300
768' 494
16721805
1310732
7681529
10022705
124414
7632000
7558794
1 0039324
10140655
7785844
7601549
10101890
10361894
7758294
10124568
10102188
7782823
7789062
S7249
100425
7664839
12771083
93765
6369966
6369977
1319728
3813147
2545597
93798
Synonyms isomers
Orthophosphoric acic .. .
Black phosphorus, red phosphorus, white
phosphorus. yel!ow phosphorus. •
Phosphory; chloride, phosphorus chloride •
Phosohoric sulfide, thiophosphoric anhydride
phosphorus persulfide.
Phosphorous chloride
PCB. Aroclor. polychiorinated dipnenyls ^
Potassium dichromate
Potassium hydrate, caustic potash, potassa ... !
Chameleon mineral
Omite . .. .
Propanoic acid, rrethyiacetic acid, ethylforrnic
acid.
Propanoic anhydride, methylacetic anhydride
Propene oxide
Pyrethrin 11 •.
1-benzazine, benzofbjpyridine, leuocoSne
chinoleine, leucol.
Hesorcm, 1 .3-benzenedioI, rneta-
dthydroxybenzene
Selenium dioxide
Nitric acid silver (1+) salt lunar caustic !
Natrium i
Disodium arsenate ',
Sodium dichromate
Sodium acid sulfite. sodium hydrogen sultite . . !
Sodium hydrogen sulfide
Caustic soda, soda lye, sodium hydrate
Bleach '
Sodium methoxide i -.
Vinylbenzene, phenylethylene. styrol, i
styrolene, cinnamene, cinnamol.
Oil of vitriol, oleum ,
Sulfur chloride ;
Acetic acid (2.4,5-trichlorophenoxy)-compound
with N,N-dimethylmetnanamine (1:1).
Acetic acid (2,4,5-triehiorophsnoxyS-compound
with N-methylmethanamine (1:1). .'
Acetic acid (2,4.5-trichlorophenoxy)-compound ;
with 1-amino-2-propanol (1:1). j
Acetic acid (2i4,5"1rich'orophenoxy)-cortipound
with 2,2'2"-nitriiotris [ethanol] (1:1).
CAS No.
114
-------
Environmental Protection Agency
§116.4
TABLE 116.4A—LIST OF HAZARDOUS SUBSTANCES—Continued
Common name
2.4.5-T salts
TDE
2.4,5-TP acid
2,4.5-TP esters
Tetraethyl lead
Tetraethyl pyrophosphate
Thallium sulfate
Toluene
Toxaphene
Tfichiorfon
Trichlorethylene
Trichlorophenol
Triethanoiamine
dodecylbenzenesulfonate.
Triethylamine
Trimethylamine
Uranyi acetate
Uranyl nitrate
Vanadium pentoxide
Vanadyl sulfate
Vinyl acetate
Vinylidene chloride
Xylene (mixed)
Xylenol
Zinc acetate
Zinc ammonium chloride
CAS No. Synonyms I Isorne'S
i . .
61792072 I
1928478
25168154
13560991
72548
93721
32534955
78002
107493
10031591
j
|
Acetic acid (2.4.5-trichlorophenoxy)-sodium j
salt {
ODD '
Propanoic add 2-12. 4.5-trichlorophenoxyj ... •
Propanoic acid. 2-(2,4,5-trichlorophenoxy)-
isooctyl ester. ;
Lead tetraethyl. TRL :
TEPP ;
7446186
108883 ToSuol. methylbenzene. phenylmethane
Methaciae.
8001352
Camphechlor
52686 Dipterex
79016 Ethylene trichloride !
25167822 Collunosol, Dowicide 2 or 25. Omal, ' (2,3,4-)
Phenachlor. ; (2.3.5-) . .
I (2.3,6-) ...
! (2.4.5-1
(2,4,6-) ....
(3,4.5-) .. .
27323417
121448 .
75503 TMA '
541093
10102064
36478769
1314621
27774136
1 08054
75354
1330207
1300716
557346
14639975
Vanadsc anhydride, vanadic acid anhydride ;
Vanadic sulfate, vanadium sulfate
Acetic acid ethylene ether :
1,1-dichlorethylene !
1.1-dichloroethene j
Dimethylbenzene I m-
Xylol i o-
j P-
Dimethylphenoi. hydroxydimethylbenzene . .. ]
i
|
| CAS No
i
|
15950660
1 933788
1 933755
95954
'. 88062
I 609198
I
i
. j
. i 108383
. : 95476
. I 106423
Zinc borate
Zinc bromide
Zinc carbonate
Zinc chloride
Zinc cyanide
Zinc fluoride
Zinc formate
Zinc hydrosulfite
Zinc nitrate
Zinc phenolsulfonate
Zinc phosphide
Zinc silicofiuoride
Zinc sulfate
Zirconium nitrate
Zirconium potassium fluoride
Zirconium sulfate
Zirconium tetrachloride
14639986
52628258
1332076
7699453 i
3486359 .'
7646857 Butler of zinc
557211 i
7783495 I
557415 j
7779864 j
7779886 |
127822 ! Zinc sulfocarbolate
1314847 I
16871719 | Zinc fluosilicate
7733020 ! White vitriol, zinc vitriol, white copperas
13746899 j
16923958 !
14644612 | Disulfatozirconic acid
10026116 i
TABLE 116.4B—LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBER
TABLE 116.4B—LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBER—Continued
CAS No.
Common name
CAS No.
Common name
50000
50293 ..
| Formaldehyde
! DDT
51285
52686
1 2.4-Dinitrophenol
rrichlorfon
115
-------
§116.4
40 CFR Ch. I (7-1-04 Edition)
TABLE 116.4B—LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBER—Continued
TABLE 116.4B—LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBER—Continued
CAS No
Common name
56382
56724
57249
57749
58899
60004
60571
62533
62737
63252
64186
64197
65850
67663
71432
72208
72435
72548
74895
74908
74931
75047
75070
75150
75207
75445
75503
75649
75865
75990
76448
78002
78795
78819
79094
79312
79367
80626
85007
86500
87865
88755
91203
91225
93765
93798
94111
94757
94791
94804
95476
95487
98011
98884
98953
99650
100027
100254
100414
100425
100447
100470
105464
106423
106445
107028
107051
107131
107153
107186
Parathion
Coumapnos
Strychnine
Chlordane
Lindane
Ethylenediaminetetraacetic
acid (EDTA)
Dieldrin
Aniline
Dichlorvos
Carbaryl
Formic acid
Acetic acid
Benzole acid
Chloroform
Benzene
Endrin
Methoxychlor
TDE
Monomethylamine
Hydrogen cyanide
Methyl mercaptan
Monoetnylamine
Acetaldehyde
Carbon disulfide
Calcium carbide
Phosgene
Trimethylamine
tert-Butylamine
Acetone cyanohydrin
2,2-Dichloropropionic acid
Heptachlor
Tetraethyl lead
Isoprene
iso-Butylamine
Propionic acid
iso-Butyric acid
Acelyl chloride
Methyl methacrylate
Diquat
Guthion
Pentachlorophenol
o-Nitrophenol
Naphthalene
Quinoline
2,4.5-T acid
2.4,5-T ester
2,4-D ester
2,4-D acid
2,4-D ester
2,4-D Butyl ester
o-Xylene
c— Cresol
Furfural
Benzoyl chloride
Nitrobenzene
m-Dinitrobenzene
p-Nitrophenol
p-Dinitrobenzene
Ethylbenzene
Styrene
Benzyl chloride
Benzonitriie
sec-Butyl acetate
p-Xylene
p-Cresol
Acrolein
Allyl chloride
Acrylonitrile
Ethylenediamine
Allyl alcohol
CAS No.
107493
107926
108054
108247
108316
108383
108394
108463
108883
108907
108952
109739
109897
110167
110178
110190
110827
115297
115322
117806
121211
121299
121448
121755
123626
123864
123922
124403
124414
127822
133062
142712
143339
151508
298000
298044
300765
301042
309002
315184
329715
330541
333415
506774
506876
506967
513495
528290
540885
541093
542621
543908
544183
5S4847
557211
557346
557415
563122
573568
592018
592041
592858
592870
625161
626380
628637
631618
815827
1066304
1066337
1072351
Common name
Tetraethyl pyrophosphate
n-Butyric acid
Vinyl acetate
Acetic anhydride
Maleic anhydride
m-Xylene
m-Cresol
Hesorcinol
Toluene
Chlorobenzene
Phenol
n-Butylamine
Diethylamine
Maleic acid
Fumaric acid
iso-Butyl acetate
Cyclohexane
Endosulfan
Dicofol
Dichlone
Pyrethrin
Pyrethrin
Triethylamine
Malatnion
Prupionic anhydride
n-Butyl acetate
isc-Amyl acetate
Dimethylamine
Sodium methylate
Zinc phenolsulfonate
Captan
Cupric acetate
Sodium cyanide
Potassium cyanide
Methyl parathion
Disulfoton
Naled
Lead acetate
Aidrin
Mexacarbate
2.5-Diratrophenol
Diuron
Diazinon
Cyanogen chloride
Ammonium carbonate
Acetyl bromide
sec-Butyiamine
o-Dinitrobenzene
tert-Butyl acetate
Uranyl acetate
Barium cyanide
Cadmium acetate
Cobaltous formate
m-Nitropheno
Zinc cyanide
Zinc acetate
Zinc formate
Ethion
2 6-Dinitrophenol
Calcium cyanide
Mercuric cyanide
Mercuric thiocyanate
Lead thiocyanate
tert-Amyl acetate
sec-Amy! acetate
n-Amyl acetate
Ammonium acetate
Cupric tartrate
Chromic acetate
Ammonium bicarbonate
Lead stearate
116
-------
Environmental Protection Agency
TABLE 116.4B—LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBER—Continued
§116.4
TABLE 116.4B—LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBER—Continued
CAS No.
1111780
1185575
1194656 ..
1300716
1303282
1303328
1303339 . .
1309644
1310583
1310732
1314621 .
13K803
1314847
1314870
1319773
1320189
1327533
1330207
1332076
1333831
1336216
1336363
1338245
1341497
1762954
1863634
1918009
1928387
1928478
1928616
1929733
2545597
2764729
2921882
2944674
2971382
3012655
3164292
3251238
3486359
5893663
5972736
6009707
6369966
7428480
7440235
7446084
7446142
7447394
7558794
7601549
7631892
7631905
7632000
7645252
7646857
7647010
7647189
7664382
7664393
7664417
7664939
7681494
7681529
7697372
7699458
7705080
7718549
7719122
7720787
7722647
Common name
Ammonium carbamate
Ferric ammonium citrate
Oichlobenil
Xylenol
Arsenic pentoxide
Arsenic bisulfide
Arsenic trisulfide
Antimony trioxide
Potassium hydroxide
Sodium hydroxide
Vanadium pentoxide
Phosphorus pentasulfide
Zinc phosphide
Lead sulfide
Cresol (mixed)
2,4-D ester
Arsenic trioxide
Xylene
Zinc borate
Sodium bitiuoride
Ammonium hydroxide
Polychlorinated biphenyls
Naphthenic acid
Ammonium bifluoride
Ammonium thiocyanate
Ammonium benzoale
Dicamba
2,4-D esters
2,4.5-T ester
2,4-D ester
2.4-D ester
2.4.5-T ester
Diquat
Chlorpyrifos
Ferric ammonium oxalate
2,4-D ester
Ammonium citrate, dibasic
Ammonium tartrate
Cupric nitrate
Zinc carbonate
Cupric oxalate
Ammonium oxalate
Ammonium oxalate
2,4,5-T ester
Lead stearate
Sodium
Selenium oxide
Lead sulfate
Cupric chloride
Sodium phosphate, dibasic
Sodium phosphate, tribasic
Sodium arsenate
Sodium bisulfite
Sodium nitrite
Lead arsenate
Zinc chloride
Hydrochloric acid
Antimony pentachloride
Phosphoric acid
Hydrofluoric acid
Ammonia
Sulfuric acid
Sodium fluoride
Sodium hypochlonte
Nitric acid
Zinc bromide
Ferric chloride
Nickel chloride
Phosphorus trichloride
Ferrous sulfate
Potassium permanganate
CAS No.
7723140
7733020
7758294
77S8943
7758954
7758987
7773060
7775113
7778441
7778509
7778543
7779864
7779886
7782505
7782630
7782823
7782867
7783359
7783462
7783495
7783508
7783564
7784341
7784409
7784410
7784465
7785844
7786347
7786814
7787475
7787497
7787555
7788989
7789006
7789062
7789095
7789426
7789437
7789619
7790945
8001352
10022705 .....
10025873
10025919
10026116
10028225
10028247
10039324
10043013
10045893
10045940
10049055
10099748
10101538
10101630
10101890
10102064
10102188
10102440
10102484
10108642
10124502
10124568
10140655
10192300
10196040
10361894
10380297
10415755
10421484
10588019
Common name
Phosphorus
Zinc sulfate
Sodium phosphate, tribasic
Ferrous chloride
Lead chloride
Cupric sulfate
Ammonium sulfamate
Sodium chromate
Calcium arsenate
Potassium bichromate
Calcium hypochlorite
Zinc hydrosulfite
Zinc nitrate
Chlorine
Ferrous sultate
Sodium selenite
Mercurous nitrate
Mercuric sulfate
Lead tiuoride
Zinc fluoride
Ferric fluoride
Antimony trifluoride
Arsenic trichloride
Lead arsenate
Potassium arsenate
Sodium arsenite
Sodium phosphate, tribasic
Mevinphos
Nickel sulfate
Beryllium chloride
Beryllium fluoride
Beryllium nitrate
Ammonium chromate
Potassium chromate
Strontium chromate
Ammonium bichromate
Cadmium bromide
Cobaltous bromide
Antimony tribromide
Chlorosulfonic acid
Toxaphene
Sodium hypochlorite
Phosphorus oxychloride
Antimony trichloride
Zirconium tetrachloride
Ferric sulfate
Sodium phosphate, dibasic
Sodium phosphate, dibasic
Aluminum sulfate
Ferrous ammonium sulfate
Mercuric nitrate
Chromous chloride
Lead nitrate
Chromic sulfate
Lead iodide
Sodium phosphate, tribasic
Uranyl nitrate
Sodium selenite
Nitrogen dioxide
Lead arsenate
Cadmium chloride
Potassium arsenite
Sodium phosphate, tribasic
Sodium phosphate, dibasic
Ammonium bisulfite
Ammonium sulfite
Sodium phosphate, tribasic
Cupric sulfate, ammoniated
Mercurous nitrate
Ferric nitrate
Sodium bichromate
117
-------
Pt. 117
40CFRCh. I (7-1-04 Edition)
TABLE H6.4B—LIST OF HAZARDOUS
SUBSTANCES BY CAS NUMBER—Continued
CAS No. Common name
11115745 Chromic acid
12002038 Cupnc acetoarsemte
12054487 Nickel hydroxide
12125018 Ammonium fluoride
12125029 Ammonium chloride
12135761 ' Ammonium siJfide
12771083 : Sulfur chloride
13597994 Beryllium nitrate
13746899 : Zirconium nitrate
13765190 Calcium chromate
13814965 • Lead fluoborate
13826830 Ammonium fluoborate
13952846 • sec-Buiylamine
14017415 : Cobaltous sulfamate
14216752 Nickel nitrate
14258492 Ammonium oxalate
14307358 • Lithium chromate
14307438 Ammonium tartrate
14639975 Zinc ammonium chloride
14639986 . Zinc ammonium chloride
14644612 ! Zirconium sulfate
15699180 ; Nickel ammonium sulfate
16721805 Sodium hydrosulfide
16871719 ; Zinc silicofluoride
16919190 ' Ammonium silicofluoride
16923958 | Zirconium potassium fluoride
25154545 j Dinitrcbenzene
25154556 ; Nitrophenol
25155300 : Sodium dodecylbenzenesulfonate
25167822 : Tnchlorophenol
25168154 ; 2,4.5-T ester
25168267 2,4-D ester
26264062 ; Calcium dodecylbenzenesuifonate
27176870 : Dodecylbenzenesulfonic acid
27323417 : Triethanolamine
dodecylbenzenesuifonate
27774136 : Vanadyl sulfate
28300745 j Antimony potassium tartrate
30525894 ; Paraformaldehyde
36478769 Uranyl nitrate
37211055 ; Nickel chloride
42504461 \ Dodecylbenzenesuifonate
• isopropanolamine
52628258 Zinc ammonium chloride
52740166 Calcium arsenite
53467111 ' 2,4-D ester
55488874 I Ferric ammonium oxalate
61792072 : 2,4.5-T ester
[43 FR 10474, Mar. 13. 1978: 43 FR 27533. June
26, 1978, as amended at 44 FR 10268. Feb. 16,
1979: 44 FR 65400. Nov. 13. 1979: 44 FR 66602,
Nov. 20, 1979: 54 FR 33482. Aug. 14, 1989]
PART 117—DETERMINATION OF RE-
PORTABLE QUANTITIES FOR HAZ-
ARDOUS SUBSTANCES
Subpart A—General Provisions
Sec.
117.1
117.2
117.3
Definitions.
Abbreviations.
Determination
of reportable quan-
tities.
Subpart B—Applicability
117.11 General applicability.
117.12 Applicability to discharges from fa-
cilities with NP1JES permits.
117.13 Applicability to discharges from pub-
licly owned treatment works and their
users.
117.1 J Demonstration projects.
Subpart C—Notice of Discharge of a
Reportable Quantity
117.21 Notice.
117.23 Liabilities for removal.
ArTHouiTY: Sees. 311 and 501(a). Federal
Water Pollution Control Act (33 U.S.C. 1251
et. seq.). ("the Act") and Executive Order
11735. superseded by Executive Order 12777. 56
FR 54757.
SOURCE: 44 FR 50776. Aug. 29, 1979. unless
otherwise noted.
Subpart A—General Provisions
SI 17.1 Definitions.
As used in this part, all terms shall
have the meanings stated in 40 CFR
part 116.
(a) Reportable quantities means quan-
tities that may be harmful as set forth
in §117.3, the discharge of which is a
violation of section 311(b)(3) and re-
quires notice as set forth in §117.21.
(b) Administrator means the Adminis-
trator of the Environmental Protection
Agency ("EPA").
(c) Mobile source means any vehicle,
rolling- stock, or other means of trans-
portation which contains or carries a
reportable quantity of a hazardous sub-
stance.
(d) Public record means the NPDES
permit application or the NPDES per-
mit itself and the materials comprising
the administrative record for the per-
mit decision specified in §124.18 of this
chapter.
(e) National Pretreatment Standard or
Pretreatment Standard means any regu-
lation containing pollutant discharge
limits promulgated by the EPA in ac-
cordance with section 307 (b) and (c) of
the Act, which applies to industrial
users of a publicly owned treatment
works. It further means any State or
local pretreatment requirement appli-
cable to a discharge and which is incor-
porated into a permit issued to a pub-
licly owned treatment works under sec-
tion 402 of the Act.
118
-------
Environmental Protection Agency
§117.3
if) 1'iiblicly Oit:nuil I'l'i-utnu'.ni \\'oi/.-.•> or
i'OTW means a treatment works as de-
fined bv set-Lion 212 of the Aft., which is
owned by a State or municipality (as
defined by section 502(4) of the Act,).
This definition includes any sewers
that, convey wastewater to such a
treatment works, but does not' include
pipes, sewers or other conveyances not,
connected to a facility providing treat-
ment. The term also means the munici-
pality as defined in section 502s4s of the
Act. which has jurisdiction over the in-
direct discharges to and the discharges
from such a treatment works.
ig> Remove or rcuiciti! refers to re-
moval of the oil or hazardous sub-
stances from the water arid shoreline
or the taking of such other actions as
may be necessary to minimize or miti-
gate damage to the public health or
welfare, including, but not limited to.
fish, shellfish, wildlife, and public and
private property. shorelines. and
beaches.
-------
§117.3
40CFRCh. I (7-1-04 Edition)
TABLK 117.3—R.KPOHTABI.F. Qr WITTIKS
OF HAZARDOUS Sl'BSTAXCK.S DKS-
IGXATFD Pl'RriUAXT TO SKCTIOX 311 OF
THK CLKAX WATKR ACT
NOTE: The first number under the column
headed "RQ" is the reportaV>le quantity in
pounds. The number in parentheses is the
metric equivalent in kilograms. For conven-
ience, tiie table contains a column headed
"CaVesrory" which lists the code letters "X".
"A". "B". "C". and "D" associated with report-
aide quantities of 1. 10. 100. 1000. and 5000
pounds, respectively.
TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO
SECTION 311 OF THE CLEAN WATER ACT
Materia
Acetaldehyde
Acetic acid
Acetic anhydride
Acetone cyanohydrin
Acelyl bromide
Acetyl chloride
Acrolein
Acrylonitriie
Adipic acid
Aldrin
Allyl alcohol
Allyl chloride
Aluminum sulfate
Ammonia
Ammonium acetate
Ammonium benzoate
Ammonium bicarbonate
Ammonium bichromate
Ammonium bifluoride
Ammonium bisulfite
Ammonium carbamate
Ammonium carbonate
Ammonium chloride
Ammonium chromate
Ammonium citrate dibasic
Ammonium tluoborate
Ammonium fluoride
Ammonium hydroxide
Ammonium oxalate
Ammonium silicofluoride
Ammonium sulfamate
Ammonium suifide
Ammonium sulfite
Ammonium tartrate
Ammonium thiocyanate
Amyl acetate
Aniline
Antimony pentachloride
Antimony potassium tartrate
Antimony iribromide
Antimony trichloride
Antimony trifluoride
Antimony trioxide
Arsenic disulfide
Arsenic pentoxide
Arsenic trichloride
Arsenic trioxide
Arsenic trisulfide
Barium cyanide
Benzene
Benzoic acid
Benzonitrile
Benzoyl chloride
Benzyl chloride
Beryllium chloride
Beryllium fluoride
Beryllium nitrate
Butyl acetate
Butylamine
n-Butyl phthalate
Butyric acid
Cadmium acetate
Category
RQ in pounds {kilograms}
I 1.000 (454)
j 5.000 (2,2701
! 5.000 (2,270)
| 10 (4 54!
| 5.000 (2.270)
! 5.000 (2,270)
' 1 (0.454)
: 100 (45.4)
: 5.000 (2.270)
1 10.454)
100(45.4)
i 1.000 (454)
5.000 (2 270)
100 (45.4)
5,000 (2,270)
5.000 (2,270)
5 000 (2.270)
10 (4.54)
100 (45.4)
5.000 (2,270)
5,000 (2,270)
5,000 (2,270)
5,000 (2,270)
10(4.54)
5.000 (2,270)
5.000 (2,270)
100 (45.4)
1.000 (454)
5.000 (2.270)
1,000 (454)
5,000 (2,270)
'' 100 (45.4)
i 5.000 (2.270)
j 5.000 (2,270)
5.000 (2.270)
5.000 (2,270)
5,000 (2.270)
1,000 (454)
100 (45.4)
1,000 (454)
1.000 (454)
1.000 (454)
1,000 (454)
1 (0.454)
1 (0.454)
1 (0.454)
1 (0.454)
1 (0.454)
10 (4.54)
10 14.54)
5.000 (2.270)
5,000 (2.270)
1,000 (454)
100 (45.4)
1 (0.454)
1 (0.454)
1 (0.454)
5,000 (2.270)
1,000 (454)
10 (4.54)
5,000 (2,270)
10 (4.54)
120
-------
Environmental Protection Agency
§117.3
TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO
SECTION 311 OF THE CLEAN WATER ACT—Continued
Material
Cadmium bromide
Cadmium chloride
Calcium arseriate
Calcium arsenite
Calcium carbide . . .
Calcium chromate
Calcium cyanide
Calcium dodeeylbenzenesulfonate
Calcium hypnchlorite
Captan
Carbaryl
Carbofuran
Carbon disulfide
Carbon tetrachloride ....
Chlordane .. .
Chlorine .
Chlorobenzene
Crroro'onr
Chiorosulfomc acid
Chiorpypfos
Chromic acetate
Chromic acid
Chromic sulfase
Chromous chloride
Cobaitous bromide
CoDaltous fcrmate
Cooaltous sulfamate
Coumaphos
Cresol
Crotcnaldehyde
Cupnc acetate
Cupric acetoareenite
Cupric chloride
Cupnc nitrate
Cupnc oxalate
Cupnc sultate
Cupric sulfate, ammoniated
Cupnc tartrate
Cyancgen chloride
Cyclohexane
2.4-D Acid
2.4-D Esi.ers
DDT
Diazinon
Dicamba
Dicnloberiil
Dicnlone
Dichlorobenzene
Dichloropropane
Dicnloropropene
Dicnlorcpropene-Dichloropropane (mixture)
2 2-OicbloropFopsonic acid -
Dichiorvos
DicofC'i
Dieidrin . ..
Diethylarn;rie
Oimethylarnine
Din^trobenzene (mixed)
Dinitfophenoi
Dinitroloiuene
Diquat
Disulfoton
Diuron ....
Dodecyibenzenesuifonic acid
Endosulfan
Endrin
Epichlorchydnn
Ethion
Ethylbenzene
Ethylenediamine
Ethylenediamine-telraacetic acid (FDTA) ..
Category ' RO in pounds (kilograms
A . 10 (4.54)
A 10 (4.54;
X : 1 (0454)
X . , 1 (0.454)
A 10(4.54;.
A . . 10(1.54)
A ! 10(1.54)
C 1.000(454)
4 . . . 10(4.54)
A . . I 10 (4.54)
B . .. : 100(454)
A . .. ! 10 (454)
B 100 (45.4)
A .. 10 (4 541
X .... 1 (0.454)
A 10 (4,54)
8 . . . . ! 100 (45.4!
A i 10 (4.54)
C j 1.000 (454)
X ! 1 (0 454)
C . . ; 1.000 (454»
A . i 10 (4 54i
C . : 1.000 (454)
. C . . . . • 1.000(454}
C . . • 1.000 (454)
C . . 1.000 (454)
C 1.000 (454)
A ... 10 (4.54!
B ; 100 (454)
B . ; 100 (454)
B 100(45.4)
X .. . . ' 1 (0.454)
A .. . . j 10 (4 54)
B . . ; 100 (454)
B ., ., ' 100 (45.4)
A 10 (4.54)
B !00 (454)
B .. . 100 (454)
A ... MO (4.54!
C .. ... i 1.000 (454)
B . . ! 100 s45 4)
B MOO |454i
X .. . ; 1 (0.454i
X 1 (0.454)
C 1.000 (454i
B 100 (454)
X 1 <0.454)
B . 100(454)
C .... . 1 000 (454)
B . .. .. ' 100 (45.4)
B ; 100 (45.4)
D | 5.000(2.270)
A . .. . ; 10 !4 54)
A . , ; 10 (4.54)
X . ! 1 10454)
B ..MOO (454)
C . t 000 (454)
R . .. 100(454!
A . ... 10 (45.4)
A 10 (4.54)
C . . i 1.000 (454)
1 1 (04541
: 100 (45.4)
. . 1.000 (454)
X M {0 454)
X ' 1 (0.454)
B 100 (454)
A .... . .. 10 (4,54)
C .. . . ' 1.000 (454)
D . . 5,000 (2,270.1
t) .... 5.000 (2.270)
121
-------
§117.3
40 CFR Ch. I (7-1-04 Edition)
TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO
SECTION 311 OF THE CLEAN WATER ACT—Continued
Material
Category
RQ in pounds (kilograms)
Ethylene dibromide
Ethylene dichloride
Ferric ammonium citrate
Ferric ammonium oxalate
Ferric chloride
Ferric fluoride
Ferric nitrate
Ferric suitate
Ferrous ammonium suitate
Ferrous chloride
Ferrous sulfate
Formaldehyde
Formic acid
Fumaric acid
Furfural
Guthion
Heptachlor
Hexachlorocyclopentadiene
Hydrochloric acid
Hydrofluoric acid
Hydrogen cyanide
Hydrogen sulfide
Isoprene
Isopropanolamine dodecyibenzenesulfonate
Kepone
Lead acetate
Lead arsenate
Lead chloride
Lead fluoborate
Lead fluoride
Lead sulfate
Lead sulfide
Lead thiocyanate
Lindane
Lithium chromate
Malathion
Maleic acid
Maleic anhydride
Mercaptodimethur
Mercuric cyanide
Mercuric nitrate
Mercuric sulfate
Mercuric thiocyanate
Mercurous nitrate
Methyl mercaptan
Methyl methacrylate
Methyl parathion
Mevinphos
Mexacarbate
Monoethylamine
Monomethylamine
Naled
Naphthalene
Naphthenic acid
Nickel ammonium sulfate
Nickel chloride
Nickel hydroxide
Nickel nitrate
Nickel sulfate
Nitrobenzene
Nitrogen dioxide
Nitre-phenol (mixed)
Nitrotoluene
Paraformaldehyde
Parathion
Pentachlorophenol
X : 1 (0 454)
B ; 100 (45.4)
C ! 1.000 (454)
C : 1.000 (454)
C 1.000 (454)
B 100 (45 4)
C I 1.000 (454)
C 1.000 (454)
C I 1.000 (454)
B I 100 (45.4)
C 1,000 (454)
B 100 (45.4)
D 5000(2.270)
D 5,000 (2.270)
D 5,000 p. 270)
X i 1 (0.454)
X 1 (0454)
A 10 (4.54)
D 5.000 (2.270)
B 100 (454)
A 10 (4.54)
B 100 (45,4)
B ; 100 (45,4)
C : 1.000 (454)
X 1 (0.454)
A 10 (4 54)
X 1 (0454)
A 10 (4.54)
A 10 (4.54)
A ; 10 (4.54)
A '• 10 (4 54)
A ! in (4 54)
A i 10 (4 54')
A | 10 (454)
A | 10 (4.54)
A ; 10 (4.54)
X : 1 (0.454)
A : 10 (4.54)
B 100 (45.41
D 5.000 (2.270)
D 5.000 (2.270)
A 10 (454)
X 1 (0.454)
A 10 (4.54)
A 10 (4 54)
A 10 (454)
A 10 (4.54)
X 1 (0 454)
B 100 (45.4)
C 1.000 (454)
B 100 (45.4)
A 10 (4.54)
C 1.000 (454)
B I 100 (454)
B ! 100 (454)
A i 10 (4.54!
B ! 100 (45.4)
B ! 100 (45.4)
B > 100 (45.4)
B : 100 (45.4)
A : 10 (4.54)
B 100 (454)
B 100(45.4)
C 1 000 (454)
C 1.000 (454)
A 10 (4.54)
B 100 (45.4)
C • 1.000 (454)
C : 1.000 (454)
A I 10 (4.54)
A ! 10 (4.54)
122
-------
Environmental Protection Agency
§117,3
TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO
SECTION 311 OF THE CLEAN WATER ACT—Continued
Category . RQ m pounds [kilograms)
Phenol . , ..
Phosgene ,, ,
Phosphoric add . .,,
Phosphorus .,
Phosphorus oxychloride ,,
Phosphorus pentasuifide
Phosphorus trichloride ,
Polychlorinated biphenys <
Potassium arsenate .
Potassium arsemte
Potassium bichromate ,
Potassium chrornate . .. ........
Potassium cyanide ... ......
Potassium hydroxide , . ..
Potassium permanganate .
Propargite .,...,.„.,. ,
Propionic acid , .....
Propionic anhydride
Propylene oxide -
Pyrethrins
QuinolJne ,. ,
Resorcmol , ,, , .
Selenium oxide
Stiver nitrate .... ,
Sodium ,, , . ,.....
Sodium arsenate
Sodium arsenite .,
Sodium bichromate ..,. ,,
Sodium bifiuond© .,,,,,,
Sodium bisulfite
Sodium chfomate ,
Sodiurr cya'iiete .
Sodiurr dodecyibenzenesu-fonate
Sodium fluoride
Sodium hydrosuffide ... ,
Sodium hydroxide
Sodium hypochlorite
Sodium methylate
Sodium nitrite ..,
Sodium phosphate, dibasic
Sodium phosphate, Iribasic
Sodium setenite ,,.,...,
Strontium chrornate .,....,.....,. ,., . ...
Strychnin© .... , ,. ,, ..,,
Styrane
Sulturic acid .,,...,,,...,.. ......
Sulfur mofiGChloride ,. . . ..
2.4,5-Tacid
2,4.5-T amines . . .
2A5-T esters . ,. ,..,...,,
2,4,5-T sails -
TOE
2,4,5-TP acid
2,4.5-TP acid esters
Tetraethyl lead ,
Tetraethyl pyrophosphale . .
Thallium suPate ,,.,, ,,,. .....
Toiuene ,..,..,.,...„,....,,..., . . .....,
Toxaphene ... , ,.. ....,,... ....
Trichiorfon ... ..
Trichloroelhylene ..... ........ .. .
Trichlorophenoi
Triethanolam;ne dodecyibenzenesuitonate
Triethyiarnine ,
TriTtethylamine ,, ..... ....
Uranyl acetate
Uranyl ntlrate ,
Vanadium pentoxide
Vanadyl sulfate
Viny! acetate
Vinyiidene chloride .. ,. .
c
A
D .
X
C .
B
X .
X .
A ,.
A
A ...
A ...
C . .
8 .
A ..
D
D ... .
B ..
X
D
D .
A
X
A ...
•^
X .. .
A . .
B ... .
D
A
A
Q
C
D .. .
C .
B
c
B
D
0 .. .
B . ..
A .
A
C .. .
C. . ..
c
c .
D
0
c
X .
B .. . .
B .
A . ..
A
B ...
•^
X ...
B
B
A . .
C . ..
u . ..
B
B
B
C
C
D . .
P
. . . . : 1,000 (454l
.. . ! 10 (4.54)
.... ! 5000 (2.270)
11 (0454)
. \ 1 .000 (454!
.. . IOC (45 4i-
1.000 (454)
. 1 (0.454)
; 1 (0.454)
. ' 1 (0.454!
.... ; !0 (4. 54)
.... MO :4.54!
I 10 (4.54)
.... 1 1.000 (4541
. ! 100 (45.4)
. ... i 10 (4.54)
' 5,000 (2.270)
.... '. 5,000(2,270)
.... 100 (45.4)
1 (0.4541
... . 5.000 (2.270)
. 5.000 (2.270)
.. . 10 (4.541
t (0.454)
10 (4,54)
1 (0454)
I 1 (0454)
. .. j 10 (4.54)
.. . . i 100(45.4)
. . ! 5.000 (2.270!
, ., . j 10 (4.541
.. . I 10 -,4 54)
' 1,000(454)
1,000(454)
5,000 (2.270)
1,000(454)
. . 100 (45.4)
. . . 1.000 !454)
. ' 100 (45.4)
.. . : 5.000 (2.270;
, ! 5.000 (2.270)
.. .. : 100 (45.4)
. : 10(4.54)
10 (4.54)
... 1 .000 (454i
1,000(454)
1,000 {454)
..... 1.000 (454)
5,000 (2.270)
1.000 (4541
''• 1.000 (454'
. i 1 (0454)
.... : 100 i45 41
. , '. 100 (45.4)
. .. 10(4.54)
10(454)
100(454)
. , 1.000 (454!
1 (0,454)
100 (45.4)
: 100 (45 4)
10(454>
.... 1.000(454;
. . . 5.000 i,2, 270)
100 (454)
. 100 (45.4)
. '. 100 (454)
.. ' 1.000 (454)
1.000 (454)
5.000 (2,270)
. ... '. (00 (454)
123
-------
§117.11
40CFRCh. I (7-1-04 Edition)
TABLE 117.3—REPORTABLE QUANTITIES OF HAZARDOUS SUBSTANCES DESIGNATED PURSUANT TO
SECTION 311 OF THE CLEAN WATER ACT—Continued
Material
Xylene (mixed)
Xylenol
Zinc acetate
Zinc ammonium chloride
Zinc borate
Zinc bromide
Zinc carbonate
Zinc cnloride
Zinc cyanide
Zinc fluoride
Zinc formate
Zinc hydrosulfite
Zinc nitrate
Zinc phenolsulfonate
Zinc phosphide
Zinc silicofluoride
Zinc sulfate
Zirconium nitrate
Zirconium potassium fluori
Zirconium sulfate
Zirconium tetrachloride
ide ...
Category
RO in pounds (kilograms)
B
C
C
C
C
C
C
C
A
C
C . .
C
C
D
B
D
C
D
C
D
D
100(454)
1.000 (454)
1,000 (454)
1.000(454)
1,000(454)
' 1.000 (454)
1.000 (454)
1.000(454)
10 14.54)
1000(454;
1.000 (454)
1.000(454)
1.000(454)
5.000(2,270)
100(45.4)
5.000(2.270)
' 1.000 (454)
i 5.000 (2.270)
i 1.000 (454)
; 5.000 (2,270)
j 5.000 (2.270)
[50 FR 13513. Apr. 4. 1985. as amended at. 51 FR 3-1517. Sept. 29. 1986: 54 FR 33482
58 FR 35327. June 30. 1993; 60 FR 30937. Jane 12. 1995]
Aug. 14. 1989:
Subpart B—Applicability
§ 117.11 General applicability.
This regulation sets forth a deter-
mination of the reportable quantity for
each substance designated as hazardous
in 40 CFR part 116. The regulation ap-
plies to quantities of designated sub-
stances equal to or greater than the re-
portable quantities, when discharged
into or upon the navigable waters of
the United States, adjoining shore-
lines, into or upon the contiguous zone.
or beyond the contiguous zone as pro-
vided in section 311(b)(3) of the Act. ex-
cept 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
(33U.S.C. 1401 etseq.);
(b) In compliance with approved
water treatment plant operations as
specified by local or State regulations
pertaining to safe drinking water;
(c) Pursuant to the label directions
for application of a pesticide product
registered under section 3 or section 24
of the Federal Insecticide. Fungicide.
and Rodenticide Act (FIFRA). as
amended (7 U.S.C. 136 et seq.1. or pursu-
ant to the terms and conditions of an
experimental use permit issued under
section 5 of FIFRA. or pursuant to an
exemption granted under section 18 of
FIFRA;
(d) In compliance with the regula-
tions issued under section 3004 or with
permit conditions issued pursuant to
section 3005 of the Resource Conserva-
tion 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 ac-
cordance with applicable removal regu-
lations as required by section
(ft 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
124
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Environmental Protection Agency
§117.13
exempt from such requirements by sec-
tion 404(f) or 404(r) of the Act (33 U.S.C.
1344(al. (f). (r)),
SI 17.12 Applicability to discharges
from facilities with NPDES permits.
(a) This regulation does not apply to:
(1) Discharges in compliance with a
permit under section 402 of this Act:
(2) Discharges resulting from cir-
cumstances 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 sub-
ject to a condition in such permit;
(3) Continuous or anticipated inter-
mittent discharges from a point, source.
identified in a permit or permit appli-
cation under section 402 of this Act.
which are caused by events occurring
within the scope of the relevant oper-
ating 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 applica-
ble to the substance discharged or an
effluent limitation applicable to an-
other 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.
(cs A discharge results "from cir-
cumstances 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 sub-
ject to a condition in such permit."
whether or not the discharge is in com-
pliance with the permit, where:
(1) The permit application, the per-
mit, or another portion of the public
record contains documents that spe-
cifically identify:
(it The substance and the amount of
the substance; and
«ii) The origin and source of the sub-
stance: and
(iii) The treatment which is to be
provided for the discharge either by:
(A) An on-site treatment system sep-
arate from any treatment system
treating the permittee's normal dis-
charge; 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
Any combination of the above:
and
(2s The permit contains a require-
ment that the substance and amounts
of the substance, as identified in
§117.12 be
treated pursuant, to §117.12(c)O'tiin in
the event of an on-site release; and
(3> The treatment to be provided is in
place.
(d) A discharge IK a '"continuous or
anticipated intermittent discharge
from a point source, identified in a per-
mit or permit application under sec-
tion 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 dis-
charged from a point source lor which
a valid permit exists or for which a per-
mit 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-sife 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
fiiii An upset or failure of a treat-
ment system or of a process producing
a continuous or anticipated intermit-
tent discharge where the upset or fail-
ure results from a control problem, an
operator error, a system failure or mal-
function, 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 haz-
ardous substance.
f+4 PR 50778. AUK J9. 1979, . K"\)i
S117.13 Applicability to discharges
from publicly owned treatment
works and their users.
*a) [Reserved]
(b) These regulations apply to all dis-
charges of reportable quantities to a
125
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§117.14
40 CFR Ch. I (7-1-04 Edition)
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 in-
dustrial discharger, the substance had
been treated to comply with any efflu-
ent limitation under sections 301. 302 or
306 or pretreatment standard under
section 307 applicable to that facility.
SI 17.14 Demonstration projects.
Notwithstanding any other provision
of this part, the Administrator of the
Environmental Protection Agency
may. on a case-by-case basis, allow the
discharge of designated hazardous sub-
stances in connection with research or
demonstration projects relating to the
prevention, control, or abatement of
hazardous substance pollution. The Ad-
ministrator will allow such a discharge
only where he determines that the ex-
pected environmental benefit from
such a discharge will outweigh the po-
tential hazard associated with the dis-
charge.
Subpart C—Notice of Discharge of
a Reportable Quantity
§117.21 Notice.
Any person in charge of a vessel or
an onshore or an offshoz'e facility shall.
as soon as he has knowledge of any dis-
charge of a designated hazardous sub-
stance 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 dis-
charge. Notice shall be given in accord-
ance with such procedures as the Sec-
retary of Transportation has set forth
in 33 CFR 153.203, This provision ap-
plies to all discharges not specifically
excluded or reserved by another section
of these regulations.
§ 117.23 Liabilities for removal.
In any case where a substance des-
ignated as hazardous in 40 CPR part 116
is discharged from any vessel or on-
shore 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
ff) and (g) of the Act. to the United
States Government for the actual costs
incurred in the removal of such sub-
stance, subject only to the defenses and
monetary limitations enumerated in
section 311 (f) and (g) of the Act.
The Administrator may act to mitigate
the damage to the public health or wel-
fare caused by a discharge and the cost
of such mitigation shall be considered
a, cost, incurred under section 311(c) for
the removal of that substance by the
United States Government.
PART 121—STATE CERTIFICATION
OF ACTIVITIES REQUIRING A FED-
ERAL LICENSE OR PERMIT
Subpart A—General
121.3 Contents of application.
Subpart B—Determination of Effect on
Other States
121.11 Copies of documents.
123.12 Supplemental information.
121.13 Review by Regional Administrator
and notification.
121.14 Forwarding to affecteO State.
121.15 Hearing's on objection of affected
State.
121.16 Waiver.
Subpart C—Certification by the
Administrator
121.21 When Administrator certifies.
121.22 Applications.
121.23 Notice and hearing.
121.2-! Certification.
121.£5 Adoption of new water quality stand-
ards.
121.26 Inspection of facility or activity be-
fore operation.
121.27 Notification to licensing or permit-
ling agency.
121.28 Termination of suspension,
Subpart D—Consultations
121.30 Review and advice.
ALTHORITY: Sec. 21 (b) and ic), 84 Stat. 91
(33 U.S.C, 1171(b) (1970)); Reorganization Plan
No. 3 of 1970.
126
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Environmental Protection Agency
§121.11
Subpart A—General
SI 21,1 Definitions.
As used in this parr, the following
terms shall have the meanings indi-
cated below;
(a) [Avenue or permit means any li-
cense or permit granted by an agency
of the Federal Government to conduct
any activity which may result in any
discharge into the navigable waters of
the United States,
(b) Licensing or permitting aycncy
means any agency of the Federal Gov-
ernment to which application is made
for a license or permit.
sc) Administrator means the Adminis-
trator. Environmental Protection
Agency.
(d) Regional Administrator means the
Regional designee appointed by the Ad-
ministrator, Environmental Protection
Agency.
Certifying agency means the person
or agency designated by the Governor
of a State, by statute, or by other gov-
ernmental act. to certify compliance
with applicable water duality stand-
ards. If an interstate agency has sole
authority to so certify for the area
within its jurisdiction, such interstate
agency shall be the certifying agency.
Where a State agency and an interstate
agency have concurrent authority to
certify, the State agency shall be the
certifying- agency. Where water quality
standards have been promulgated by
the Administrator pursuant to section
10icS(2> of the Act, or where DO State or
interstate agency has authority to cer-
tify, the Administrator shall be the
certifying agency.
if) Act means the Federal Water Pol-
lution Control Act. 33 TJ.S.C. 1151 vA ,v«/.
(gi Water quality standard* means
standards established pursuant 10 sec-
tion 10(c) of the Act. and State-adopted
water duality standards for navigable
waters which are not interstate waters.
§ 121.2 Contents of certification.
(a) A certification made by a certi-
fying agency shall include the fol-
lowing:
( 1 I The tlAlfir
ij'.icant:
'.'2' A statement, that i-he certifying
Agency has either '!) exaimneii th<~ ap
plication made by the applicant to the
licensing or permitting agency ;specifi~
rally identifying the number or code
affixed to such application) and bases
its certit'icatlo!! upon an evaluation of
the information contained in such ap-
plication which is relevant to water
Duality considerations, or tin examined
other information furnished by the ap-
plicant sufficient to permit the certi-
fying agency to make the statement
described in paragraph taxSi of this
section;
(3) A statement that there is a rea-
sonable assurance that the activity
will be conducted in a manner which
will not violate applicable water qual-
ity standards;
(4) A statement of any conditions
which the certifying' agency deems nec-
essary or desirable with respect- to the
discharge, of the activity: and
(5) Such other information as the cer-
tifying agency may determine to be ap-
propriate.
(b) The certifying agency may mod-
ify the certification in such manner as
may be agreed upon by the certifying
agency, the licensing or permitting
agency, and I he Regional Adminis-
t rater,
S 121.3 Contents of application.
A licensing' 01 permitting agency
shall require an applicant for a license
or permit to include in the form of ap-
plication such information relating to
water quality considerations as may be
atrreed upon by the licensing or permit-
ting agency and the Administrator.
Subpart B—Determination of Effect
on Other States
§ 121.11 Copies of documents.
ias Upon receipt- from an applicant of
an application for a license or permit
without an accompanying certifi-
cation, the licensing or permitting
agency shall either: (1) Forward one
copy of the application to the appro-
priate certifying agency and two copies
to the Regional Administrator, or <2i
forward three copies of the application
127
-------
§121.12
40 CFR Ch. i (7-1-04 Edition)
to the Regional Administrator, pursu-
ant to an agreement between the li-
censing or permitting' agency and the
Administrator that the Regional Ad-
ministrator will transmit a copy of the
application to the appropriate certi-
fying agency. Upon subsequent receipt
from an applicant of a. certification.
the licensing or permitting' agency
shall forward a copy of such certifi-
cation to the Regional Administrator.
unless such certification shall have
been made by the Regional Adminis-
trator 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 applica-
tion and certification to the Regional
Administrator.
(c) Only those portions of the appli-
cation which relate to water quality
considerations shall be forwarded to
the Regional Administrator.
§ 121.12 Supplemental information.
If the documents forwarded to the
Regional Administrator by the licens-
ing or permitting agency pursuant to
§121.11 do not contain sufficient infor-
mation for the Regional Administrator
to make the determination provided
for in §121.13, the Regional Adminis-
trator may request, and the licensing
or permitting agency shall obtain from
the applicant and forward to the Re-
gional Administrator, any supple-
mental information as may be required
to make such determination.
§ 121.13 Review by Regional Adminis-
trator and notification,
The Regional Administrator shall re-
view the application, certification, and
any supplemental information provided
in accordance with §§121.11 and 121.12
and if the Regional Administrator de-
termines there is reason to believe that
a discharge may affect the quality of
the waters of an:/ State or States other
than the State in which the discharge
originates, the Regional Administrator
shall, no later than 30 days of the date
of receipt of the application and cer-
tification from the licensing or permit-
ting agency as provided in §121.11. so
notify each affected State, the licens-
§ 121,14 Forwarding to affected State.
The Regional Administrator shall
forward to each affected State a copy
of the material provided in accordance
with §121.11.
§ 121,15 Hearings on objection of af-
fected State,
When a. licensing or permitting agen-
cy holds a public hearing on the objec-
tion of an affected State, notice of such
objection, including the grounds for
such objection, shall be forwarded to
the Regional Administrator by the li-
censing or permitting agency no later
than 30 days prior to such hearing. The
Regional Administrator shall at such
hearing submit his evaluation with re-
spect to such objection and his rec-
ommendations as to whether and under
what conditions the license or permit
should be issued.
§121.16 Waiver.
The certification requirement with
respect to an application for a license
or permit shall be waived upon:
(a) Written notification from the
State or interstate agency concerned
that it expressly waives its authority
to act on a request for certification; or
(b) Written notification from the li-
censing or permitting agency to the
Regional Administrator of the failure
of the State or interstate agencsr con-
cerned to act on. such request for cer-
tification within a reasonable period of
time after receipt of such request, as
determined by the licensing or permit-
ting agency (which period shall gen-
erally be considered to be 6 months,
but in any event shall not exceed 1
year).
In the event of a waiver hereunder. the
Regional Administrator shall consider
such waiver as a substitute for a cer-
tification, and as appropriate, shall
conduct the review, provide the no-
tices, and perform the other functions
identified in §§121.13, 121.14, and 121.15.
The notices required by §121.13 shall be
provided not later than 30 days after
the date of receipt by the Regional Ad-
ministrator of either notification re-
ferred to herein.
128
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Environmental Protection Agency
§121,24
Subpart C—Certification by the
Administrator
S 121.21 When Administrator certifies.
Certification by the Administrator
that the discharge resulting from an
activity requiring a license or permit
will not. violate applicable water qual-
ity standards will be required where:
ia> Standards have been promulgated,
in whole or in part, by the Adminis-
trator pursuant to section 10(c)(2) of
the Act: Provided, however, That the
Administrator will certify compliance
only with respect to those water qual-
ity standards promulgated by him; or
(b.) Water quality standards have
been established, but no State or inter-
state agency has authority to give such
a certification,
8121.22 Applications.
An applicant for certification from
the Administrator shall submit to the
Regional Administrator a complete de-
scription of the discharge involved in
the activity for which certification is
sought, with a request for certification
signed by the applicant. Such descrip-
tion shall include the following:
(a) The name and address of the ap-
plicant:
(b) A description of the facility or ac-
tivity, and of any discharge into navi-
gable 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 specifica-
tion of the degree of treatment ex-
pected to be attained:
id) The date or dates on which the ac-
tivity will begin and end, if known, and
the date or dates on which the dis-
charge will take place:
(e) A description of the methods and
means being used or proposed to mon-
itor 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.
S 121.23 Notice and hearing.
The Regional Administrator will pro-
vide public notke 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 news-
paper of general circulation in the area
in which the activity is proposed to be
conducted if the Regional Adminis-
trator deems mailed notice to be im-
practicable. Interested parties shall be
provided an opportunity to comment
on such request, in such manner as the
Regional Administrator deems appro-
priate. All interested and affected par-
ties will be given reasonable oppor-
tunity to present evidence and testi-
mony at a public hearing on the ques-
tion whether to grant or deny certifi-
cation if the Regional Administrator
determines that, such a hearing is nec-
essary or appropriate.
§ 121.24 Certification.
If. after considering the complete de-
scription, the record of a hearing, if
any. held pursuant to §121,23, and such
other information and data as the Re-
gional 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 Re-
gional Administrator determines that
no water quality standards are applica-
ble to the waters which might be af-
fected by the proposed activity, he
shall so notify the applicant and the li-
censing or permitting agency in writ-
ing and shall provide the licensing or
permitting agency with advice, sugges-
tions, and recommendations with re-
spect 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
129
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§121.25
40 CFR Ch, I (7-1-04 Edition)
§ 121.25 Adoption of new water quality
standards.
(a) In any case where:
(1) A license or permit was issued
without certification due to the ab-
sence of applicable water quality
standards; and
(2) Water quality standards applica-
ble to the waters into which the li-
censed or permitted activity may dis-
charge are subsequently established;
and
(3) The Administrator is the certi-
fying agency because:
(i) No State or interstate agency lias
authority to certify; or
(ii) Such new standards were promul-
gated by the Administrator pursuant
to section 10(c)(2) of the Act: and
(4) The Regional Administrator de-
termines that such uncertified activity
is violating water quality standards;
Then the Regional Administrator shall
notify the licensee or permittee of such
violation, including his recommenda-
tions as to actions necessary for com-
pliance. If the licensee or permittee
fails within 6 months of the date of
such notice to take action which in the
opinion of the Regional Administrator
will result in compliance with applica-
ble water quality standards, the Re-
gional Administrator shall notify the
licensing or permitting agency that the
licensee or permittee has failed, after
reasonable notice, to comply with such
standards and that suspension of the
applicable license or permit is required
by section 21(b)(9;
-------
Environmental Protection Agency
Pf. 122
for which a license or permit is sought,
The Regional Administrator may. and
upon request shall, also advise licens-
ing" and permitting agencies as to the
status of compliance by dischargers
with the conditions and requirements
of applicable water quality standards.
In cases where an activity for which a
license or permit is sought will affect
water quality, but, for which there are
no applicable water quality standards.
the Regional Administrator may advise
licensing or permitting' agencies with
respect to conditions of such license or
permit to achieve compliance with the
purpose of the Act.
PART 122—EPA ADMINISTERED PER-
MIT PROGRAMS: THE NATIONAL
POLLUTANT DISCHARGE ELIMI-
NATION SYSTEM
Subpart A—Definitions and General
Program Requirements
Sec,
122,1
122.2
122,3
122.4
Purpose and scope.
Definitions.
Exclusions.
Prohibitions (applicable to State
NPDES Programs, see §123.25),
122,5 Effect of a permit
122.6 Continuation of expiring' permits,
122.7 Confidentiality of information.
Subpart B—Permit Application and Special
NPDES Program Requirements
122.21 Application for a permit (applicable
to State programs, see §123,25).
122,22 Signatories to permit applications
and reports (applicable to State pro-
grams, see §123,25).
122,23 Concentrated animal feeding oper-
ations (applicable to State NPDES pro-
grams, see §123.25)
122.24 Concentrated aquatic animal produc-
tion facilities (applicable to State
NPDES prog-rams, see §123.25),
122.25 Aquaculture projects (applicable to
State NPDES programs, see §123.25),
122.36 Storm water dischursfes (applicable to
State NPDES programs, see §123.25).
122.27 Silvteuitural activities (applicable to
State NPDES programs, see § 123.251.
122.28 General permits (applicable to State
NPDES programs, see §123.25),
122,29 New sources and new dischargers.
122.30 What are the objectives of the storm
water regulations for small MS4s?
122.31 As a Tribe, what is my role under the
NPDES storm water program''
122.32 As an operator of a small MS4. am I
regulated under the NPDES storm water
program?
122.33 If I am an operator of a regulated
small MS4. how do I apply for an NPDES
permit and when do I have to apply?
122.34 As an operator of a regulated small
MS4, what will my NPDES MS4 storm
water permit require?
122.35 As an operator of a regulated small
MS4, may I share the responsibility to
implement the minimum control meas-
ures with other entities?
122.36 As an operator of a regulated small
MS4. what happens if I don't comply with
the application or permit requirements
in §§122.33 through 122.35?
122.37 Will the small MS4 storm water pro-
grain regulations at §§122.32 through
122.36 and §123.35 of this chapter change
in the future?
Subpart C—Permit Conditions
122.41 Conditions applicable to all permits
(applicable to State programs, see
1123,25>.
122.42 Additional conditions applicable to
specified categories of NPDES permits
(applicable to State NPDES programs.
see 1123.25i,
43 Establishing permit conditions (ap-
plicable to State programs, see §123.25).
44 Establishing limitations, standards
and other permit conditions (applicable
to State NPDES programs, see §123.25).
".22,45 Cak.ulai.ine NPDES permit condi-
tions (applicable to State NPDES pro-
exams, see §123.25).
122.46 Duration of permits (applicable to
State programs, see §123.25).
122.47 Schedules of compliance,
122.48 Requirements for recording1 and re-
porting of monitoring results (applicable
to State programs, see §123.25).
122.49 Considerations under Federal law.
122,50 Disposal of pollutants into wells, into
publicly owned treatment works or by
land application (applicable to State
NPDES programs, see §123.251.
Subpart D—Transfer, Modification, Revoca-
tion and Reissuance, and Termination
of Permits
122.SI Transfer of permits (applicable to
State programs see §123.25).
122.62 Modification or revocation and
reissuanee of permits (applicable to
State programs, see § 123.25),
122.63 Minor modifications of permits.
122.64 Termination of permits (applicable to
State programs, see §123.25).
APPENDIX A TO Pun- 122--NPDES PRIMARY
IXDUSTEY CATEGORIES
Ai'i'ENnrx B TO PAKT 122 [RKtsKKYicnl
131
-------
§122.1
40 CFR Ch. I (7-1-04 Edition)
APPENDIX C TO PART 122- CRITERIA FDH DE-
TERMINING A CONCKNTKATKlJ Agl'ATIC' ANi-
MAL PRODUCTION FACILITY t§ 122.24)
Ai'PBNnrx D TO PART 122—NPDES PERMIT
APPLICATION TESTING RKQUIRKMKNTS
(§122.21)
APPENDIX E TO PART 122—RAINFALL ZONKS or
THE UNITED STATF.K
APPENDIX F TO PART 122—INCORPORATION
PLACES WITH POPULATIONS GRKATKH
THAN 250,000 ACCORDING TO THE 1990 DE-
CENNIAL CENSUS BY THE BUREAU OK THK
CENSUS
APPENDIX & TO PART 122—INCORPORATED
PLACES WITH POPULATIONS GREATER
THAN 100,000 BUT LESS THAN 250.000 AC-
CORDING TO THS 1990 DECENNIAL CENSUS
BY THK BUREAU OF THE CENSUS
APPENDIX H TO PART 122—COUNTIES WITH UN-
INCORPORATED URBANIZED AREAS WITH A
POPULATION OF 250.000 OB Mom: ACCORD-
ING TO THE 1990 DECENNIAL CENSUS BY THE
BUREAU OF THE CENSUS
APPENDIX I TO PART 122—COUNTIES WITH UN-
INCORPORATED URBANIZED AKKA.S OKKAT-
KK THAN 100.000, BUT LESS THAN 250.000
ACCORDING TO THE 1990 DECENNIAL CENSUS
BY THE BUREAU OF THE CENSUS
APPENDIX J TO PART 122—NPDES PERMIT
TESTING REQUIREMENTS FOR PUBLICLY
OWNED TREATMENT WORKS (§122.21(.n)
AUTHORITY; The Clean Water Act. 33 U.S.C.
1251 e( seg.
SOURCE: 48 FR 14153. Apr. 1, 1983. unless
otherwise noted.
Subpart A—Definitions and
General Program Requirements
§ 122,1 Purpose and scope.
(a) Coverage. (1) The regulatory provi-
sions contained in this part and parts
123. and 124 of this chapter implement
the National Pollutant Discharge
Elimination System (NPDES) Program
under sections 318. 402, and 405 of the
Clean Water Act
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Environmental Protection Agency
§122.2
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 Adminis-
trator as adequate to assure compli-
ance 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" a.s defined in § 122,2.
where the Regional Administrator
finds that a permit, is necessary to pro-
tect 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 sec-
tion 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 Ad-
ministrator that a permit is required.
The Regional Administrator's decision
to designate a person as a "treatment
works treating1 domestic sewage" under
this paragraph shall be stated in the
fact sheet or statement of basis for the
permit,
[NOTE TO §122.1; Information concerning1
the NPDES program and its regulations can
be obtained by contacting- the Water Permits
Diviston(4203). Office of Waste-water Manage-
ment, U.S.E.P.A.. Ariel Rios Building. 1200
Pennsylvania Avenue. NW.. Washington. DC
20460 at (2Q2) 260-9545 and by visiting the
homepage at http:- www.epa.govowm-'J
J65 FR 30904. May 15, 2000]
S 122.2 Definitions.
The following definitions apply to
parts 122. 123. and 124. Terms nol de-
fined in this section have the meaning
given by CWA. When a defined terns ap-
pears in a definition, the defined term
is sometimes placed in quotation
marks as an aid to readers.
Administrator means the Adminis-
trator of the United States Environ-
mental Protection Agency, or an au-
thorized representative.
Animal feeding operation is defined at
§122.23.
Applicable standard-is and limitations
means all State, interstate, and federal
standards and limitations to which a
"discharge," a "sewage sludge use or dis-
posal practice." or a related activity is
subject, under the CWA, including "ef-
fluent limitations." water quality
.standards, standards of performance.
toxic effluent standards or prohibi-
tions, "best management practices."
pretreatment standards, and "standards
for sewage sludge use or disposal"
under sections 301. 302. 303. 304. 306. 307.
308. 403 and 405 of CWA.
Application means the EPA standard
national forms for applying for a per-
mit., including any additions, revisions
or modifications* to the forms: or forms
approved by EPA for use in "approved
states." including any approved modi
Hcations or revisions.
Appro red program or approved State
.means a State or interstate program
which has been approved or authorized
by EPA under part 123.
Aquaculturc project is defined at
f122.25.
Average monthly discharge limitation
means the highest allowable average of
"daily discharges" over a calendar
month, calculated as the sum of all
"daily discharges" measured during a
calendar month divided by the number
of "daily discharges" measured during
that month.
Average icKckli/ discharge limitation
means the highest allowable average of
"daily discharges" over a calendar
week, calculated as the sum of all
"'daily discharges" measured during a
calendar week divided by the number
of "daily discharges" measured during
that week.
Best mancici(-ini'nt practices ("RMPs")
means schedules of activities, prohibi-
tions of practices, maintenance proce-
dures, and other management practices
io prevent or reduce the pollution of
"waters of the United States." BMPs
also include treatment requirements.
operating1 procedures, and practices to
control plant site runoff, spillage or
leaks, sludge or waste disposal, or
drainage from raw material storage.
BMPs means "best management prac-
tices."
Class I -iludffc management facility
means any POTW identified under 40
CPR 403.8(a) as being required to have
an approved pretreatment program (in-
cluding such POTWs located in a State
that has elected to assume local pro-
gram responsibilities pursuant to 40
133
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§122.2
40 CFR Ch, I (7-1-04 Edition)
CFR 403.10(e.S) and any other treatment
works treating' domestic sewage classi-
fied as a Class I sludge management fa-
cility by the Regional Administrator.
or. in the case of approved State pro-
grams, the Regional Administrator in
conjunction with the State Director.
because of the potential for its sludge
use or disposal practices to adversely
affect public health and the environ-
ment.
Bypass is defined at §122.41(m>.
Concentrated animal feeding operation
is defined at §122.23.
Concentrated aquatic animal feeding
operation is defined at §122.24.
Contiguous zone means the entire
zone established by the United States
under Article 24 of the Convention on
the Territorial Sea and the Contiguous
Zone.
Continuous discharge means a "dis-
charge" which occurs without interrup-
tion throughout the operating- hours of
the facility, except for infrequent shut-
downs for maintenance, process
changes, or other similar activities.
CWA means the Clean Water Act (for-
merly referred to as the Federal Water
Pollution Control Act or Federal Water
Pollution Control Act Amendments of
1972) Public Law 92^500. as amended by
Public Law 95-217. Public Law 95-576.
Public Law 96-483 and Public Law 97-
117. 33 U.S.C. 1251 et sag,
CWA and regulations means the Clean
Water Act (CWA) and applicable regu-
lations promulgated thereunder. In the
case of an approved State program, it
includes State program requirements.
Daily discharge means the "discharge
of a pollutant" measured during a cal-
endar day or any 24-hour period that
reasonably represents the calendar day
for purposes of sampling. For pollut-
ants with limitations expressed in
units of mass, the "daily discharge" Is
calculated as the total mass of the pol-
lutant discharged over the day. For
pollutants with limitations expressed
in other units of measurement, the
"daily discharge" is calculated as the
average measurement of the pollutant
over the day.
Direct discharge means the "discharge
of a pollutant."
Director means the Regional Adminis-
trator or the State Director, as the
context requires, or an authorized rep-
resentative. When there is no ''approved
State program." and there is an EPA
administered program. "Director"
means the Regional Administrator.
When there is an approved State pro-
gram. "Director" normally means the
State Director. In some circumstances.
however. EPA retains the authority to
take certain act-ions even when there is
an approved State program. (For exam-
ple, when. EPA has issued an NPDES
permit prior to the approval of a State
program. EPA may retain jurisdiction
over that permit after program ap-
proval, see §123.1.) In such cases, the
term "Director" means the Regional
Administrator and not the State Direc-
tor.
Discharge when used without quali-
fication means the "discharge of a pol-
lutant."
Discharge of a pollutant means:
(at Any addition of any "pollutant" or
combination of pollutants to "waters of
the United States" from any "point
source." or
means the EPA uniform national form.
including any subsequent additions, re-
visions, or modifications for the report-
ing of self-monitoring results by per-
mittees. DMRs must be used by "ap-
proved States" as well as by EPA. EPA
will supply DMRs to any approved
State upon request. The EPA national
forms may be modified to substitute
the State Agency name, address, logo.
and other similar information, as ap-
propriate, in place of EPA's.
134
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Environmental Protection Agency
§122.2
DMR means "Discharge Monitoring'
Report."
Draft permit means a document pre-
pared under §124.6 indicating the Direc-
tor's tentative decision to issue or
deny, modify, revoke and reissue, ter-
minate, or reissue a "permit." A notice
of intent to terminate a permit;, and a
notice of intent to deny a permit, as
discussed in §124.5. are types of "draft
permits." A denial of a request for
modification, revocation and reissu-
ance. or termination, as discussed in
§124.5. is not a "draft permit." A "pro-
posed permit" is not a "draft permit."
Effluent limitation means any restric-
tion imposed by the Director on quan-
tities, discharge rates, and concentra-
tions of "pollutants" which are "dis-
charged" from "point sources" into "wa-
ters of the United States." the waters
of the "contiguous zone." or the ocean.
Effluent limitations guidelines means a,
regulation published by the Adminis-
trator under section 304 of CWA to
adopt or revise "effluent limitations."
Environmental Protection Agency
("EPA") means the United States
Environmental Protection Agency.
EPA means the United States "Envi-
ronmental Protection Agency."
Facility or activity means any NPDES
"point source" or any other facility or
activity (including land or appur-
tenances thereto) that is subject, to
regulation under the NPDES program.
Federal Indian reservation means all
land within the limits of any Indian
reservation under the jurisdiction of
the United States Government, not-
withstanding the issuance of any pat-
ent, and including rights-of-way run-
ning' through the reservation.
General permit means an NPDES
"permit" issued under §122.28 author-
izing a category of discharges under
the CWA within a geographical area.
Hazardous substance means any sub-
stance designated under 40 CFR part
116 pursuant to section 311 of CWA.
Indian country means:
(1) All land within the limits of any
Indian reservation under the jurisdic-
tion 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 subse-
quently acquired territory thereof, and
whether within or without the limits of
a stale: and
(3) All Indian allotments, the Indian
titles to which have not been extin-
guished, including rights-of-way run-
ning through the same.
Indian Tribe means any Indian Tribe.
baud, group, or community recognized
by the Secretary of the Interior and ex-
ercising governmental authority over a
Federal Indian reservation.
Indirect discharger means a nondomes
tic discharger introducing "pollutants"
to a "publicly owned treatment works."
Individual control strategy i^ defined
at 40 CFR 123.46(0.
interstate agency means an agency of
two or more States established by or
under an agreement or compact ap-
proved by the Congress, or any other
agency of two or more States having
substantial powers or duties pertaining
to the control of pollution as deter-
mined and approved by the Adminis-
trator under the CWA and regulations.
Major taciIitJi means any NPDES "fa-
cility or activity" classified as such by
the Regional Administrator, or. in the
case of "approved State programs." the
Regional Administrator in conjunction
with the State Director.
Maximum daily discharge limitation
means the highest allowable "daily dis-
charge."
Municipal111/ means a city. town, bor-
ough, county, parish, district, associa-
tion, or other public body created by or
under State law and having jurisdic-
tion over disposal of sewage, industrial
wastes, or other wastes, or an Indian
tribe or an authorized Indian tribal or-
ganization, or a designated and ap
proved management agency under sec-
tion 208 of Ctt'A.
Municipal separate storm seicer system
is defined at §122,26 ib)(4) and <7>.
National Pollutant Discharge Elimi-
nation System (NPDES) means the na-
tional program for issuing, modifying.
revoking and reissuing, terminating.
monitoring and enforcing permits, and
imposing and enforcing pretreatment
requirements, under sections 307. 402.
318, and 405 of CWA. The term includes
an "approved piogram,"
New discharger means any building.
structure, facility, or installation:
135
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§122.2
40 CFR Ch. I (7-1-04 Edition)
(a) Prom which there is or may be a
"discharge of pollutants;"
(b) That did not commence the "dis-
charge of pollutants" at a particular
"site" prior to August 13, 1979:
(c) Which is not a "new source:" and
(d) Which has never received a finally
effective NDPES permit for discharges
at that "site."
This definition includes an "indirect
discharger" which commences dis-
charging into "waters of the United
States" after August 13, 1979. It also in-
cludes any existing mobile point source
(other than an offshore or coastal oil
and gas exploratory drilling rig or a
coastal oil and gas developmental drill-
ing rig) such as a seafood processing
rig, seafood processing vessel, or aggre-
gate plant, that begins discharging at a
"site" for which it does not have a per-
mit; and any offshore or coastal mobile
oil and gas exploratory drilling rig or
coastal mobile oil and gas develop-
mental drilling rig that commences the
discharge of pollutants after August 13.
1979. at a "site" under EPA's permitting
jurisdiction for which it is not covered
by an individual or general permit and
which is located in an area determined
by the Regional Administrator in the
issuance of a final permit to be an area
or biological concern. In determining
whether an area is an area of biological
concern, the Regional Administrator
shall consider the factors specified in
40 CFR 125.122(a) (1) through (10).
An offshore or coastal mobile explor-
atory drilling rig or coastal mobile de-
velopmental drilling rig will be consid-
ered a "new discharger" only for the du-
ration of its discharge in an area of bi-
ological concern.
New source means any building.
structure, facility, or installation from
which there is or may be a "discharge
of pollutants," the construction of
which commenced:
(a) After promulgation of standards
of performance under section 306 of
CWA which are applicable to such
source, or
(b) After proposal of standards of per-
formance 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 pro-
posal.
NPDES means "National Pollutant
Discharge Elimination System."
Oicner or operator means the owner or
operator of any "facility or activity"
subject to regulation under the NPDES
program.
Permit means an authorization, li-
cense, or equivalent control document
issued by EPA or an "approved State"
to implement the requirements of this
part and parts 123 and 124. "Permit" in-
cludes an NPDES "general permit"
(§122.28). Permit does not include any
permit which has not yet been the sub-
ject of final agency action, such as a
"draft permit" or a "proposed permit."
Person means an individual, associa-
tion, partnership, corporation, munici-
pality. State or Federal agency, or an
agent or employee thereof.
Point source means any discernible.
confined, and discrete conveyance, in-
cluding but not limited to. any pipe,
ditch, channel, tunnel, conduit, well.
discrete fissure, container, rolling
stock, concentrated animal feeding op-
eration. landfill leachate collection
system, vessel or other floating craft
from which pollutants are or may be
discharged. This term does not include
return flows from irrigated agriculture
or agricultural storm water runoff.
(See §122.3).
Pollutant means dredged spoil, solid
waste, incinerator residue, filter back-
wash, sewage, garbage, sewage sludge,
munitions, chemical wastes, biological
materials, radioactive materials (ex-
cept those regulated under the Atomic
Energy Act of 1954. as amended (42
U.S.C. 2011 et seq.n. heat, wrecked or
discarded equipment, rock, sand, cellar
dirt and industrial, municipal, and ag-
ricultural waste discharged into water.
It. does not mean:
(a) Sewage from vessels; or
(b) Water, gas, or other material
which is injected into a well to facili-
tate 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 pro-
duction or for disposal purposes is ap-
proved 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 degrada-
tion of ground or surface water re-
sources.
136
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Environmental Protection Agency
§122.2
NOT]:; Radioactive materials covered by
the Atomic Energy Act are those encom-
passed in its definition of source, byproduct,
or special nuclear materials. Examples of
materials not covered include radium and
accelerator-produced isotopes. See Train v.
Cohiructr, Public Inleresi Rt'scarch Group. Inc.,
426 U.S. 1 (1976).
POTW Is defined at §403.3 of this
chapter.
Primary industry category means any
Industry category listed in the NRDC
settlement agreement, (Natural Re-
sources Defense Council et al, v. Train, 8
E.R.C. 2120 (D.D.C. 1976). modified 12
B.R.C. 1833 (D.D.C. 1979)); also listed in
appendix A of part 122.
Privately owned treatment works
means any device or system which is
(a) used to treat wastes from any facil-
ity whose operator1 is not the operator
of the treatment works and (b) not a
"POTW."
Process wastewater means any water
which, during manufacturing' or proc-
essing, comes into direct contact with
or results from the production or use of
any raw material, intermediate prod-
uct, finished product, byproduct, or
waste product.
Proposed permit means a State
NPDES "permit" prepared after the
close of the public comment period
(and. when applicable, any public hear-
ing and administrative appeals) which
is sent to EPA for review before final
issuance by the State. A "proposed per-
mit" is not a "draft permit."
Publicly owned treatment works is de-
fined at 40 CPB 403.3.
Recommencing discharger means a
source which recommences discharge
alter terminating operations.
Regional Administrator means the Re-
gional Administrator of the appro-
priate Regional Office of the Environ-
mental Protection Agency or the au-
thorized representative of the Regional
Administrator.
Schedule of compliance means a sched-
ule of remedial measures included in a
"permit", including an enforceable se-
quence, of interim requirements (for ex-
ample, actions, operations, or mile-
stone events) leading to compliance
with the CWA and regulations.
Secondary industry category means
any industry category which is not a
"primary industry category."
Secretary means the Secretary of tht-
Army, acting- through the Chief of En-
gineers.
SeplMie means the liquid and solid
material pumped from a septic- tank,
cesspool, or similar domestic sewage
treatment system, or a holding tank
when the system is cleaned or main-
tained.
Sewage rrom resaeh means human
body wastes and the wastes from toi-
lets and other receptacles intended to
receive or retain body wastes that are
discharged from vessels and regulated
under section 312 of CWA. except that
with respect to commercial vessels on
the Great Lakes this term includes
graywater, For the purposes of this def-
inition, ''graywater" means galley.
hath, and shower water.
Sewage Sludge means any solid, semi-
solid, or liquid residue removed during
the treatment of municipal waste
water or domestic sewage. Sewage
sludge includes, but is not limited to.
solids removed during primary, sec-
ondary, or advanced waste water treat-
ment, scum, septage, portable toilet
pumpings. type III marine sanitation
device pumpings (33 CFR part 159), and
sewage sludge products. Sewage sludge
does not include grit or screenings, or
ash generated during the incineration
of sewage sludge.
Sewage sludge use or disposal practice
means the collection, storage, treat-
ment, transportation, processing, mon-
itoring, use, or disposal of sewage
sludge.
Silvicultural point source is defined at
§122.27
Site means the land or water area
where any "facility or activity" is pli3rs-
ically located or conducted, including
adjacent land used in connection with
the facility or activity.
Sludge-only facility means any "treat-
ment works treating domestic sewage"
whose methods of sewage sludge use or
disposal are subject to regulations pro-
mulgated pursuant, to section 405(d) of
the CWA and is required to obtain a
permit under §122.1(b)<2).
Standards for sen-age Kludge use or dis-
posal means the regulations promul-
gated pursuant to section 405(d) of the
CWA which govern minimum require-
ments for sludge quality, management
137
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§122.2
40 CFR Ch. I (7-1-04 Edition)
practices, and monitoring and report-
ing' applicable to sewage sludge or the
use or disposal of sewage sludge by any
person.
State means any of the 50 States, the
District of Columbia. Guam, the Com-
monwealth of Puerto Rico, the Virgin
Islands. American Samoa, the Com-
monwealth of the Northern Mariana Is-
lands, the Trust Territory of the Pa-
cific Islands, or an Indian Tribe as de-
fined in these reg'ulations which meets
the requirements of §123.31 of this
chapter.
State Director means the chief admin-
istrative officer of any State or inter-
state agency operating an "approved
program," or the delegated representa-
tive of the State Director. If responsi-
bility is divided among two or more
State or interstate agencies. "State Di-
rector" means the chief administrative
officer of the State or interstate agen-
cy authorized to perform the particular
procedure or function to which ref-
erence is made.
State/EPA Agreement means an agree-
ment between the Regional Adminis-
trator and the State which coordinates
EPA and State activities, responsibil-
ities and programs including those
under the CWA programs.
Storm water is defined at
§122.26(0X13).
Storm water discharge associated with
industrial activity is defined at
§122.26
-------
Environmental Protection Agency
§122.3
<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 oth-
erwise defined as waters of the United
States under this definition:
which also meet the criteria
of this definition) are not waters of the
United States. This exclusion applies
only to manmade bodies of water which
neither were originally created in wa-
ters of the United States (such as dis-
posal area in wetlands) nor resulted
from the impoundment of waters of the
United States. [See Note 1 of this sec-
tion.] Waters of the United States do
not include prior converted cropland.
Notwithstanding the determination of
an area's status as prior converted
cropland by any other federal agency.
for the purposes of the Clean Water
Act. the final authority regarding-
Clean Water Act jurisdiction remains
with KPA.
Wetlands means those areas that are
inundated or saturated by surface or
ground-water at a frequency and dura-
tion sufficient to support, and that
under normal circumstances do sup-
port, a prevalence of vegetation typi-
cally adapted for life in saturated soil
conditions. Wetlands generally include
swamps, marshes, bogs, and similar
areas,
Whole effluent toxicity means the ag-
gregate toxic effect of an effluent
measured directly by a toxicity test.
NOTK: At 45 FR 48620. July 21, 1980. the En-
vironmental Protection Agency suspender!
until further notice in § 122.2. the last sen-
tence, beginning- "This exclusion applies . . ."
in the definition of "Waters of the United
Suites." This revision continues that, suspen-
sion.1
;Clean Water Act (33 U.S.C. 1251 et «'<,'.). Safe
Drinking Water Act (42 U.S.C. 300f cl sea.i.
Clean Air Act (42 U.S.C. 7401 et. .vcy.i. Re-
source Conservation and Recovery Act < 12
r.S.C. 6901 ct .*<>
-------
§122.4
40 CFR Ch. I (7-1-04 Edition)
conveyances owned by a State, munici-
pality, or other party not leading to
treatment works.
(d) Any discharge in compliance with
the instructions of an On-Scene Coordi-
nator pursuant to 40 CPR part 300 (The
National Oil and Hazardous Substances
Pollution Contingency Plan) or 33 CPR
153.10(e) (Pollution by Oil and Haz-
ardous Substances).
(e) Any introduction of pollutants
from non point-source agricultural and
silvicultural activities. including
storm water runoff from orchards, cul-
tivated crops, pastures, range lands,
and forest lands, but not discharges
from concentrated animal feeding oper-
ations as defined in §122.23. discharges
from concentrated aquatic animal pro-
duction 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 agri-
culture.
(g) Discharges into a privately owned
treatment works, except as the Direc-
tor may otherwise require under
§122.44(m).
L48 FR 14153. Apr. 1. 1983. as amended at 54
FR 254. 258. Jan. 4. 1989]
§ 122.4 Prohibitions
State NPDES
§ 123.25).
(applicable
programs,
to
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) Wrhen the imposition of conditions
cannot ensure compliance with the ap-
plicable water quality requirements of
all affected States:
(e) When, in the judgment of the Sec-
retary, 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 radio-
logical, chemical, or biological warfare
agent or high-level radioactive waste;
(g) For any discharge inconsistent
with a plan or plan amendment ap-
proved under section 208(b) of CWA;
(h) For any discharge to the terri-
torial sea. the waters of the contiguous
zone, or the oceans in the following cir-
cumstances:
(1) Before the promulgation of guide-
lines under section 403(c) of CWA (for
determining degradation of the waters
of the territorial seas, the contiguous
zone, and the oceans) unless the Direc-
tor determines permit issuance to be in
the public interest; or
(2) After promulgation of guidelines
under section 403(c) of CWA, when in-
sufficient information exists to make a
reasonable judgment whether the dis-
charge complies with them.
(i) To a new source or a new dis-
charger, if the discharge from its con-
struction or operation will cause or
contribute to the violation of water
quality standards. The owner or oper-
ator of a new source or new discharger
proposing to discharge into a water
segment which does not meet applica-
ble water quality standards or is not
expected to meet those standards even
after the application of the effluent
limitations required by sections
301(b)(l)(A) and 301(b)(l)(B) of CWA, and
for which the State or interstate agen-
cy has performed a pollutants load al-
location for the pollutant to be dis-
charged, 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 seg-
ment into compliance with applicable
water quality standards. The Director
may waive the submission of informa-
tion by the new source or new dis-
charger 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
140
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Environmental Protection Agency
§122,7
fact sheet to the permit under
§124.56(b)(J.) of this chapter.
148 FR 1-3153. Apr. 1. 1983. as amended -ti 50
FK 6940. Feb. 19, 1985; 65 FR 30905. Mav 15.
2000)
§ 122.5 Effect of a permit,
(a) Applicable to State programs, nna
§123.25. il! Except for any toxic efflu-
ent standards and prohibitions imposed
under section 307 of the CWA and
"standards for sewage sludge use or dis-
posal" under 405(d) of the CWA. compli-
ance with a permit during its term con-
stitutes compliance, for purposes of en-
forcement, with sections 301, 302, 306,
307. 318. 403. and 405 (a)-fb) of CWA.
However, a permit may be modified, re-
voked and reissued, or terminated dur-
ing' its term for cause as set forth in
§§122,62 and 122.64.
(2) Compliance with a permit condi-
tion which implements a particular
"standard for sewage sludge use or dis-
posal" shall be an affirmative defense
in any enforcement action brought for
a violation of that "standard for sewage
sludge use or disposal" pursuant to sec-
tions 405(e) and 309 of the CWA,
(b) Applicable to State programs, See
§123.25. The issuance of a permit does
not convey any property rights of any
sort, or any exclusive privilege,
(c) The issuance of a permit does not
authorize any injury to persons or
property or invasion of other private
rights, or any infringement of State or
local law or regulations.
[48 FR 14153, Apr. 1. 1983. as amended at 54
FR 18782, May 2, 1989]
§ 122.6 Continuation of expiring per-
mits,
(a) EPA permits. When EPA is the per-
mit-issuing' authority, the conditions
of an expired permit continue in force
under 5 U.S.C. 558(e> until the effective
date of a new permit (see §124.15) if:
(1) The permittee has submitted a
timely application under §122.21 which
is a complete (under §122.21>!nait. When the permittee
is not in compliance with the condi-
tions of tlu.- expiring' or expired permit
the Regional Administrator may
choose to do any or all of the following:
(1) Initiate enforcement action based
upon the pel mil which has been contin-
ued:
(2) Issue a notice of intent to deny
the new permit under §124.6. If the per-
mit is denied, the owner or operator
would then be required to cease the ac-
tivities authorized by the continued
permit or be subject to enforcement ac-
tion for operating: without a permit:
(3) Issue a new permit under part 124
with appropriate conditions: or
(4) Take other actions authorized by
these regulations.
(d) State continuation. (1) An EPA-
issued permit does not continue in
force beyond its expiration date under
Federal law if at that time a State is
the permitting authority. States au-
thorized to administer the NPDES pro-
gram may continue either EPA or
State-issued permits until the effective
date of the new permits, if State law
allows. Otherwise, the facility or activ-
ity is operating without a permit from
the time of expiration of the old permit
to the effective date of the State-issued
new permit
[48 FR 14153. Apr. 1. 1983. as amended at 50
PR 6940. Fell, 19, J985J
S 122.7 Confidentiality of information.
(a) In accordance with 40 CPR part 2.
any information submitted to EPA
pursuant to these regulations may be
claimed as confidential by the sub-
mitter. Any such claim must be as-
serted 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 informa-
tion" on each pag'e containing such in-
formation. 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 as-
serted, the information will be treated
141
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§122.21
40 CFR Ch. 1 (7-1-04 Edition)
in accordance with the proccdan.-? in 40
CFR part 2 < Public Informal ioiu.
(b) Applicable to i>7a/r urw/ruw.s, act;
§123.25. Claims of confidentiality for
the following information will be de-
nied:
(Is The name and address of any per-
mit applicant or permittee:
(2) Permit applications, permits, and
effluent data.
Applicable to State program*., see
§123.25. Information required by
NPDES application forms provided by
the Director under §122.21 may not be
claimed confidential. This includes in-
formation submitted on the forms
themselves and any attachments used
to supply information required by the
forms.
Subpart B—Permit Application
and Special NPDES Program
Requirements
8122.21 Application for a permit (ap-
plicable to State programs, see
§ 123,25).
(a) Duty to apply, d) Any person who
discharges or proposes to discharge pol-
lutants or who owns or operates a
"sludge-only facility" whose sewage
sludge use or disposal practice is regu-
lated by part 503 of this chapter, and
who does not have an effective permit,
except persons covered by general per-
mits under §122,28, excluded under
§122.3. or a user of a privately owned
treatment works unless the Director
requires otherwise under §122.44(m).
must submit a complete application to
the Director in accordance with this
section and part 124 of this chapter. All
concentrated animal feeding- oper-
ations have a duty to seek coverage
under an NPDES permit, as described
in §122.23(d).
(2) Application Forms: (i) All appli-
cants for EPA-issued permits must sub-
mit applications on EPA permit appli-
cation forms. More than one applica-
tion form may be required from a facil-
ity depending on the number and types
of discharges or outfalls found there.
Application forms may be obtained by
contacting the EPA water resource
center at (202) 260-7786 or Water Re-
source Center. U.S. EPA. Mail Code
4100. 1200 Pennsylvania Ave.. NW..
Washington, DC 20460 or at the EPA
Iiiltrriif-l sit i.' www.epa.eov owm
npdf-s.litrn. Applications for EPA-
issued pt-imits must "be .submitted a?
follows:
(As All applicants, other than POTWs
and TWTDS. must submit Form 1.
', BI Applicants for new and existing
POTWs must submit the information
contained in paragraph (j) of this sec-
tion using Form 2A or other form pro-
vided by the director.
(Ci Applicants for concentrated ani-
mal feeding operations or aquatic ani-
mal production facilities must submit
Form 2B.
(D> Applicants for existing industrial
facilities (including manufacturing fa-
cilities, commercial facilities, mining
activities, and silvicultural activities).
must submit Form 2C.
(E> Applicants for new industrial fa-
cilities that discharge process waste-
water must, submit Form 2D.
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(ci(l)(ii).
If the discharge is composed of storm
water and non-storm water, the appli-
cant 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 (cK2)(i>
of this section must submit the appli-
cation information required by para-
graph (i[i of this section, using Form 2S
or other form provided by the director.
ni) The application information re-
quired by paragraph (a)(2)(i) of this sec-
tion 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 Re-
gional Offices. The Regional Offices'
addresses can be found at §1.7 of this
chapter.
(iv) Applicants for State-issued per-
mits must use State forms which must
require at a minimum the information
142
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Environmental Protection Agency
§122.21
listed in the appropriate paragraphs of
this section,
(b) Who applies? When a facility or ac-
tivity is owned by one person but is op-
erated by another person, it is the op-
erator's duty to obtain a permit.
(O Time to apply. (1) Any person pro-
posing a new discharge, shall submit an
application at least 180 clays before the
date on which the discharge is to com-
mence, unless permission for a later
date has been granted by the Director,
Facilities proposing: a new discharge of
storm water associated with industrial
activity shall submit an application 180
days before that facility commences
industrial activity which may result in
a discharge of storm water associated
with that industrial activity. Facilities
described under §122.26 All other permittees with cur-
rently effective permits shall submit a
new application 180 days before the ex-
isting permit expires, except that:
(is The Regional Administrator may
grant permission to submit an applica-
tion later than the (leadline for submis-
sion otherwise applicable, but rio later
than the permit expiration date; and
(3) [Reserved]
143
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§122.21
40 CFR Ch. I (7-1-04 Edition)
(e) Completeness. (1) The Director
shall not issue a permit before receiv-
ing a complete application for a permit
except for NPDBS general permits. An
application for a permit is complete
when the Director receives an applica-
tion form and any supplemental infor-
mation which are completed to his or
her satisfaction, The completeness of
any application for a permit shall be
judged independently of the status of
any other permit application or permit
for the same facility or activity. For
EPA administered NPDES programs.
an application which is reviewed under
§124.3 of this chapter is complete when
the Director receives either a complete
application or the information listed in
a notice of deficiency.
(2) A permit application shall not be
considered complete if a permitting au-
thority has waived application require-
ments under paragraphs (j) or (q) of
this section and EPA has disapproved
the waiver application. If a waiver re-
quest has been submitted to EPA more
than 210 days prior to permit expira-
tion and EPA has not disapproved the
waiver application 181 days prior to
permit expiration, the permit applica-
tion lacking the information subject to
the waiver application shall be consid-
ered complete.
(f) Information requirements. All appli-
cants for NPDES permits, other than
POTWs and other TWTDS. must pro-
vide the following information to the
Director, using the application form
provided by the Director. Additional
information required of applicants is
set forth in paragraphs (g) through (k)
of this section.
(1) The activities conducted by the
applicant which require it to obtain an
NPDES permit.
(2) Name, mailing address, and loca-
tion of the facility for which the appli-
cation is submitted.
(3) Up to four SIC codes which best
reflect the principal products or serv-
ices 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 con-
struction approvals received or applied
for under any of the following pro-
grams;
(i) Hazardous Waste Management
program under RCRA.
(ii) UIC program under SDWA.
. shall provide the following-
information to the Director, using ap-
plication forms provided by the Direc-
tor.
(.1) Outfall location. The latitude and
longitude to the nearest 15 seconds and
the name of the receiving water.
(2) Line, drawing. A line drawing of
the water flow through the facility
with a water balance, showing oper-
ations contributing wastewater to the
effluent and treatment units. Similar
processes, operations, or production
areas may be indicated as a single unit,
144
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Environmental Protection Agency
§122.2!
labeled to correspond to tlie more de-
tailed identification under paragraph
Cg")<3) of this section. The water balance
must show approximate average flows
at intake and discharge points and be-
tween units, including' treatment units.
If a water balance cannot be deter-
mined (for example, for certain mining
activities), the applicant may provide
instead a pictorial description of the
nature and amount of any sources of
water and any collection and treat-
ment measures.
(8) Average flown and treatment. A nar-
rative identification of each type of
process, operation, or production area
which contributes wastewater to the
effluent for each outfall, including'
process wastewater. cooling water, and
stormwater runoff: the average flow
which, each process contributes; and a
description of the treatment the waste-
water receives, including the ultimate
disposal of any solid or fluid wastes
other than by discharge. Processes, op-
erations, or production areas may be
described in general terms (for exam-
ple, "dye-making reactor", "distillation
tower"). For a privately owned treat-
ment works, this information shall in-
clude the identity of each user of the
treatment works. The average flow of
point sources composed of storm water
may be estimated. The basis for the
rainfall event and the method of esti-
mation must be indicated.
(4) Intermittent flows. If any of the dis-
charges described in paragraph igK3) of
this section are intermittent or sea-
sonal, a description of the frequency.
duration and flow rate 01 each dis-
charge occurrence (except for
stormwater runoff, spillage or leaks*.
(.5) Maximum production. If an effluent-
guideline promulgated under section
304 of CWA applies to the applicant and
is expressed in terms of production (or
other measure of operation), a reason-
able measure of the applicant's actual
production reported in the units used
in the applicable effluent guideline.
The reported measure must reflect the
actual production of the facility as re-
quired by §122,45 and (vii>
of this section that an applicant must
provide quantitative data for certain
pollutants known or believed to be
present do not apply to pollutants
present in a discharge solely as the re-
sult of their presence in intake water:
however, an applicant must report such
pollutants as present. Grab samples
must be used for pH, temperature, cya-
nide, total phenols, residual chlorine.
oil and grease, fecal coliform and fecal
streptococcus. For all other pollutants.
2-1-hour composite samples must be
used. However, a minimum of one grab
sample may be taken for effluents from
holding ponds or other impoundments
with a retention period greater than 24
hours. In addition, for discharges other
than storm water discharges, the Di-
rector may waive composite sampling
for any outfall for which the applicant-
demonstrates that the use of an auto-
matic sampler is infeasible and that
the minimum of four (4) grab samples
will be a representative sample of the
effluent being discharged.
(ii) Storm water dischurgex. For storm
water discharges, all samples shall be
collected from the discharge resulting
from a storm event that is greater than
0.1 inch and at least 72 hours from the
previously measurable (greater than 0.1
145
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§122.21
40 CFR Ch. I (7-1-04 Edition)
inch rainfall! storm event. Where fea-
sible, the variance in the duration of
the event and the total rainfall of the
event should not exceed 50 percent
from the average or median rainfall
event in that area. For all applicants, a
flow-weighted composite shall be taken
for either the entire discharge or for
the first three hours of the discharge.
The flow-weighted composite sample
for a storm water discharge may be
taken with a continuous sampler or as
a combination of a minimum of three
sample aliquots taken in each hour of
discharge for the entire discharge or
for the first three hours of the dis-
charge, with each aliquot being- sepa-
rated by a minimum period of fifteen
minutes (applicants submitting permit
applications for storm water discharges
under §122.26(d) may collect flow-
weighted composite samples using dif-
ferent protocols with respect to the
time duration between the collection
of sample aliquots, subject to the ap-
proval of the Director). However, a
minimum of one grab sample may be
taken for storm water discharges from
holding ponds or other impoundments
with a retention period greater than 24
hours. For a flow-weighted composite
sample, only one analysis of the com-
posite of aliquots is required. For
storm water discharge samples taken
from discharges associated with indus-
trial activities, quantitative data must
be reported for the grab sample taken
during the first thirty minutes (or as
soon thereafter as practicable) of the
discharge for all pollutants specified in
§122.26(c)(l). For all storm water per-
mit, applicants taking flow-weighted
composites, quantitative data, must, be
reported for all pollutants specified in
§122.26 except pH, temperature, cya-
nide, total phenols, residual chlorine.
oil and grease, fecal coliform. and fecal
streptococcus. The Director may allow
or establish appropriate site-specific
sampling procedures or requirements,
including sampling locations, the sea-
son in which the sampling takes place.
the minimum duration between the
previous measurable storm event and
the storm event sampled, the minimum
or maximum level of precipitation re-
quired for an appropriate storm event.
the form of precipitation sampled
(snow melt or rain fall), protocols for
collecting samples under part 136 of
this chapter, and additional time for
submitting data on a case-by-case
basis. An applicant is expected to
"know or have reason to believe" that a
pollutant is present in an effluent
based on an evaluation of the expected
use, production, or storage of the pol-
lutant, or on any previous analyses for
the pollutant. (For example, any pes-
ticide manufactured by a facility may
be expected to be present in contami-
nated storm water runoff from the fa-
cility.)
(iii) Reporting requirements. Every ap-
plicant, must report quantitative data
for every outfall for the following pol-
lutants:
Biochemical Oxygen Demand (BODS)
Chemical Oxygen Demand
Total Organic Carbon
Total Suspended Solids
Ammonia (as N)
Temperature (both winter and summer!
pH
(iv) The Director may waive the re-
porting requirements for individual
point sources or for a particular indus-
try category for one or more of the pol-
lutants listed in paragraph (gMTXiii) of
this section if the applicant has dem-
onstrated that such a waiver is appro-
priate because information adequate to
support issuance of a permit can be ob-
tained with less stringent require-
ments.
(v) Bach applicant with processes in
one or more primary industry category
(see appendix A of this part) contrib-
uting to a discharge must report quan-
titative data for the following pollut-
ants in each outfall containing1 process
wastewater:
(A) The organic toxic pollutants in
the fractions designated in table I of
appendix D of this part for the appli-
cant'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 pol-
lutants in each fraction. The fractions
result from the sample preparation re-
quired by the analytical procedure
which uses gas ehromatography/mass
spectrometry. A determination that an
applicant falls within a particular in-
dustrial category for the purposes of
selecting fractious for testing is not
146
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Environmental Protection Agency
§122.21
conclusive as to the applicant's inclu-
sion in that category for any other pur-
poses. See Notes 2. 3. and 4 of this sec-
tion.
(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 be-
lieve that any of the pollutants in
table IV of appendix D of this part (cer-
tain conventional and nonconventional
pollutants) is discharged from each
outfall. If an applicable effluent limita-
tions guideline either directly limits
the pollutant or. by its express terms.
indirectly limits the pollutant through
limitations on an indicator, the appli-
cant must report quantitative data.
For every pollutant discharged which
is not so limited in an effluent limita-
tions guideline, the applicant must ei-
ther 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 be-
lieve, 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. acrylomtrile. 2.4
dinitrophenol. and 2-metbyl-4. 6
dinitrophenol. where any of these four
pollutants are expected to be dis-
charged in concentrations of 100 ppb or
greater the applicant must report,
quantitative data. For every pollutant
expected to be discharged in concentra-
tions less than 10 ppb. or in the case of
acrolein. acrylonitriie. 2.4
dinitrophenol, and 2-methyl-4. 6
dinitrophenol, in concentrations less
than 100 ppb, the applicant must either
submit, quantitative data or briefly de-
scribe the reasons the pollutant is ex-
pected to be discharged. An applicant
qualifying as a small business under
paragraph (g)(8) of this section is not
required to analyze for pollutants list-
ed in table II of appendix D of this part
(the organic toxic pollutants).
ivii) Bach applicant must indicate
whether it knows or has reason to be-
lieve that any of the pollutants in
table V of appendix D of this part (cer-
tain hazardous substances and asbes-
tos) are discharged from each outfall.
For every pollutant expected to be dis-
charged, the applicant must briefly de-
scribe the reasons the pollutant is ex-
pected to be discharged, and report, any
quantitative data it has for any pollut-
ant.
iviii) Each applicant must, report
qualitative data, generated using a
screening procedure not calibrated
with analytical standards, for 2.3.7.8-
tc-trachlorodibenzo-p-dioxin (TCDD) if
it-
i A) Uses or manufactures 2.4.5-
trichlorophenoxy acetic acid (2.4.5.-T):
2-( 2.4.5-trichlorophenoxy) propanoic
ad.d (Silvex. 2.4.5.-TP): 2-( 2.4.5-
trichlorophenoxy > ethyl. 2.2-
dichloropropionate (Erbon): O.O-di-
methyl 0-(2.4.5-trichlorophenyl)
phosphorothioate (Ronnel): 2.4.5-
trichlorophenol (TCP): or
hexachlorophene (HCP); or
(B) Knows or has reason to believe
that TCDD is or may be present in an
effluent.
(8) Small business exemption. An appli-
cation which qualifies as a small busi-
ness under one of the following criteria
is exempt from the requirements in
paragraph (g)(7Mv)(Ai or (g)(7)(vixA) of
this section to submit quantitative
data for the pollutants listed in table II
of appendix D of this part, (the organic
toxic pollutants):
:i) For coal mines, a probable total
annual production of less than 100.000
tons per year.
ill) For all other applicants, gross
total annual sales averaging less than
$100.000 pel' year (in second quarter 1980
dollars).
(9) Used or manufactured tox>c,f. A list-
ing of any toxic: pollutant which the
applicant currently uses or manufac-
tures as an intermediate or final prod-
uct or byproduct. The Director may
waive or modify this requirement for
any applicant if the applicant dem-
onstrates that it, would be unduly bur-
densome to identify each toxic pollut-
ant and the Director has adequate in-
formation to issue the permit.
(10) [Reserved!
147
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§122.21
40 CFR Ch. I (7-1-04 Edition)
(11) Biological toxicity tests. An identi-
fication of any biological toxicity tests
which the applicant knows or has rea-
son to believe have been made within
the last 3 years on any of the appli-
cant's discharges or on a receiving
water in relation to a discharge.
(12) Contract analyses. If a contract
laboratory or consulting1 firm per-
formed any of the analyses required by
paragraph fg)(7) of this section, the
identity of each laboratory or firm and
the analyses performed,
(13) Additional information. In addi-
tion to the information reported on the
application form, applicants shall pro-
vide to the Director, at his or her re-
quest, such other information as the
Director may reasonably require to as-
sess the discharges of the facility and
to determine whether to issue an
NPDES permit. The additional infor-
mation may include additional quan-
titative data and bioassays to assess
the relative toxicity of discharges to
aquatic life and requirements to deter-
mine the cause of the toxicity,
(h) Application requirements for manu-
facturing, commercial, mining and sil-
vicultural facilities which discharge only
non-process wastewater. Except for
stormwater discharges, all manufac-
turing-, commercial, mining and sil-
vicultural dischargers applying for
NPDES permits which discharge only
non-process wastewater not regulated
by an effluent limitations guideline or
new source performance standard shall
provide the following information to
the Director, using- application forms
provided by the Director:
(1) Outfall location. Outfall number,
latitude and longitude to the nearest 15
seconds, and the name of the receiving
water.
(2) Discharge date (for new divS-
chargers). Date of expected commence-
ment of discharge.
(3) Type of waste. An identification of
the general type of waste discharged.
or expected to be discharged upon com-
mencement of operations, including
sanitary wastes, restaurant or cafe-
teria wastes, or noncontact cooling
water. An identification of cooling
water additives (if any) that are used
or expected to be used upon commence-
ment of operations, along with their
composition if existing composition is
available.
(4) Effluent characteristics, (i) Quan-
titative data for the pollutants or pa-
rameters listed below, unless testing is
waived by the Director. The quan-
titative data may be data collected
over the past 365 days, if they remain
representative of current operations,
and must include maximum daily
value, average daily value, and number
of measurements taken. The applicant
must collect and analyze samples in ac-
cordance with 40 CFR part 136, Grab
samples must be used for pH. tempera-
ture, oil and grease, total residual
chlorine, and fecal coliform. For all
other pollutants. 24-hour composite
samples must be used. New dischargers
must include estimates for the pollut-
ants or parameters listed below instead
of actual sampling data, along with the
source of each estimate. All levels
must be reported or estimated as con-
centration and as total mass, except
for flow. pH, and temperature.
(A) Biochemical Oxygen Demand
(BODO.
(B) Total Suspended Solids (TSS).
Temperature (Winter and Sum-
mer).
(iii The Director may waive the test-
ing and reporting requirements for any
of the pollutants or flow listed in para-
graph (h>(4)(i) of this section if the ap-
plicant submits a request for such a
waiver before or with his application
which demonstrates that information
adequate to support issuance of a per-
mit can be obtained through less strin-
gent requirements.
(iii) If the applicant is a new dis-
charger, he must complete and submit
Item IV of Form 2e (see §122,21lh)(4)) by
148
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Environmental Protection Agency
§122.21
providing quantitative data in accord-
ance willi that section no later than
two years after commencement of dis-
charge. However, the applicant, need
not complete those portions of Item TV
requiring tests which he has already
performed and reported under the dis-
charge monitoring1 requirements of his
KPDES permit.
(iv) The requirements of parts i and
iii of this section thai an applicant,
must provide quantitative data or esti-
mates of certain pollutants do not
apply to pollutants present in a dis-
charge solely as a result of their pres-
ence in intake water. However, an ap-
plicant 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) Plow. A description of the fre-
quency of flow and duration of any sea-
sonal or intermittent discharge (except,
for stormwater runoff, leaks, or spills).
(6) Treatment system. A brief descrip-
tion of any system used or to be used.
(7) Optional information. Any addi-
tional information the applicant wish-
es to be considered, such as influent
data for the purpose of obtaining" "net"
credits pursuant to §122.45(g).
(8) Certification. Signature of certi-
fying official under §122.22.
(i) Application requirements for new
and existing concentrated animal feeding
operations and aquatic, animal production
facilities. New and existing" con-
centrated animal feeding operations
(defined in §122.23) and concentrated
aquatic animal production facilities
(defined in §122.24) shall provide the
following information to the Director.
using the application form provided by
the Director:
(It For concentrated animal feeding
operations:
(i) The name of the owner or oper-
ator:
(ii) The facility location and mailing
addresses:
(iii) Latitude and longitude of the
production area (entrance to produc-
tion area);
(iv) A topographic map of the geo-
graphic area in which the CAFO is lo-
cated showing the specific location of
the production area, in lieu of the re-
number and type of animals, whethev
in open confinement or housed under
re,of (beef cattle, broilers, layers, swine
weighing1 55 pounds or more, swine-
weighing less than 55 pounds, mature
dairy cows, dairy heifers, veal calves.
sheep and lambs, horses, ducks, tur-
keys, other;;
ivi) The type of containment, and
storage (anaerobic- lagoon roofed stor-
age 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 storages tons/grail oiia >:
ivii) The total number of acres under
control of the applicant available for
land application of manure, litter, or
process wastewater:
I'viii) Estimated amounts of manure.
litter, and process wastewater gen-
erated per year (tons/gallons);
(ix) Estimated amounts of manure,
litter and process wastewater trans-
ferred to other persons per year (tons-
gallons); and
(x) For CAFOs that must seek cov-
erage under a permit after December
31. 2006, 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 ani-
malo. the total yearly and maximum
harvestable weight.
(v) The calendar month of maximum
feeding and the total mass of food fed
during that month.
(j) Application requirements for new
and existing POTWs. Unless otherwise
indicated, all POTWs and other dis-
chargers designated by the Director
must provide, at a minimum, the infor-
mation in this paragraph to the Direc-
tor, using Form 2A or another applica-
tion form provided by the Director.
149
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§122.21
40 CFR Ch. i (7-1-04 Edition)
Permit a.pplicant,s muse . NPDES program under Clean
Water Act (CWA):
(D) Prevention of Significant Dete-
rioration (PSD) program under the
Clean Air Act:
(E) Nonattainment program under
the Clean Air Act:
(F) National Emission Standards for
Hazardous Air Pollutants (NBSHAPS)
preconstruction approval under the
Clean Air Act:
i(/1 Oci-.-m dumping permits under the
Malint- Protection Research and Sanc-
t umies Act:
iH'i Dredge or fill permits under sec-
lion 404 of the CWA; and
di Other relevant environmental per-
mits, including State permits;
iiv) Population. The name and popu-
lation of each municipal entity served
by the facility, including unincor-
porated connector districts. Indicate
whether each municipal entity owns or
maintains the collection system and
whether the collection system is sepa-
rate sanitary or combined storm and
sanitary, if known:
iv) Indian country. Information con-
cerning whether the facility is located
in Indian country and whether the fa-
cility discharges to a receiving stream
that flows through Indian country;
(vi) Flow rate. The facility's design
flow rate (the wastewater flow rate the
plant was built to handle), annual aver-
age daily flow rate, and maximum
daily flow rate for each of the previous
3 years;
(viii Collection system. Identification
of type(s) of collection system(s) used
by the treatment works (i.e.. separate
sanitary sewers or combined storm and
sanitary sewers) and an estimate of the
percent of sewer line that- each type
comprises; and
(viii5 Outfalls and other discharge or
disposal methods. The following infor-
mation for outfalls to waters of the
United States and other discharge or
disposal methods:
(A) For effluent discharges to waters
of the United States, the total number
and types of outfalls (e.g. treated efflu-
ent, combined sewer overflows, by-
passes, constructed emergency over-
flows):
(B) For wastewater discharged to sur-
face impoundments:
(1) The location of each surface im-
poundment:
(2) The average daily volume dis-
charged to each surface impoundment:
and
(3) Whether the discharge is contin-
uous or intermittent:
(C) For wastewater applied to the
land:
(]) The location of each land applica-
tion site:
150
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Environmental Protection Agency
§122.21
(2) The size of each land application
site, in acres:
(.'>'; The average daily volume applied
to each land application site, in gallons
per day:and
(4) Whether land application is con-
tinuous or intermittent:
(Di For effluent sent to another facil-
ity for treatment prior to discharge:
(1) The means by which the effluent
is transported:
(2) The name, mailing address, con-
tact person, and phone number of the
organization transporting the dis-
charge, if the transport is provided by
a party other than the applicant:
(3) The name, mailing address, con-
tact person, phone number, and NPDES
permit number (if any) of the receiving
facility: and
(4) The average daily flow rate from
this facility into the receiving facility.
in millions of gallons per day: and
(E) For wastewater disposed of in a
manner not included in paragraphs
(jHlMviiiKA) through (D) of this sec-
tion (e.g.. underground percolation, un-
derground injection):
(1) A description of the disposal
method, including the location and size
of each disposal site, if applicable;
(2) The annual average daily volume
disposed of by this method, in gallons
per day;and
(3) Whether disposal through this
method is continuous or intermittent:
(2) Additional Information. All appli-
cants with a design flow greater than
or equal to 0.1 mgd must provide the
following information:
(i) Inflow and infiltration. The current
average daily volume of inflow and in-
filtration, in gallons per day. and steps
the facility is taking to minimize in-
flow and infiltration:
(ii) Topographic map. A topographic
map (or other map if a topographic-
map is unavailable) extending at least
one mile beyond property boundaries of
the treatment plant, including all unit
processes, and showing:
(A) Treatment plant area and unit
processes:
(B) The major pipes or other struc-
tures 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 under-
ground:
(D) Wells, springs, and other surface
water bodies listed in public records or
otherwise known to the applicant with-
in >i mile of the treatment works'
property boundaries:
(E) Sewage sludge management fa-
cilities (including on-site treatment.
storage, and disposal sites); and
(F) Location at which waste classi-
fied as hazardous under RCRA enters
the treatment plant by truck, rail, or
dedicated pipe;
(illI Process flow diagram or sctiematic.
(A) A diagram showing the processes
of the treatment plant, including all
bypass piping and all backup power
sources or redundancy in the system.
This includes a water balance showing
all treatment units, including disinfec-
tion, and showing daily average flow
rates at influent and discharge points.
and approximate daily flow rates be-
tween treatment units; and
(B) A narrative description of the
diagram: and
(iv) Scheduled improvements, scliediiles
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§122.21
40CFRCh. I (7-1-04 Edition)
(D) Distance from shore and depth
below surface:
(E) Average daily flow rate, in mil-
lion gallons per day;
(F) The following information for
each outfall with a seasonal or periodic
discharge:
(1) Number of times per year the dis-
charge occurs:
(2) Duration of each discharge:
(3) Plow of each discharge: and
(4) Months in which discharge occurs:
and
(G) Whether the outfall is equipped
with a diffuser and the type (e.g.. high-
rate) of diffuser used;
(ii) Description of receiiinu icutcrx. The
following information (if known) for
each outfall through which, effluent is
discharged to waters of the United
States:
(A) Name of receiving water:
(B) Name of watershed river stream
system and United States Soil Con-
servation Service 14-tligit watershed
code:
(C) Name of State Management River
Basin and United States Geological
Survey 8-digit hyclrologic cataloging
unit code: and
(D) Critical flow of receiving stream
and total hardness of receiving stream
at. critical low flow (if applicable):
(iii) Description of treatment. The fol-
lowing information describing the
treatment provided for discharges from
each outfall to waters of the United
States:
(A) The highest level of treatment.
(e.g.. primary, equivalent to secondary.
secondary, advanced, other) that is
provided for the discharge for each out-
fall and:
(1) Design biochemical oxygen de-
mand (BOD. or CBOD,> removal (per-
cent):
(2) Design suspended solids re-
moval (percent): and. where applicable.
(3) Design phosphorus (P) removal
(percent):
(4) Design nitrogen (N) removal (per-
cent); and
(5) Any other removals that an ad-
vanced treatment system is designed to
achieve.
(B) A description of the type of dis-
infection used, and whether the treat-
ment plant dechlorinates (if disinfec-
tion is accomplished through
chlorinationc
(i) Effluent monitoring for specific pa-
rameter*.
(i> As provided in paragraphs (j)(4)(ii)
through (x) of this section, all appli-
cants must submit to the Director ef-
fluent monitoring information for sam-
ples taken from each outfall through
which effluent is discharged to waters
of the United States, except for CSOs.
The Director may allow applicants to
submit sampling data for only one out-
fall on a case-by-case basis, where the
applicant has two or more outfalls with
substantially identical effluent. The
Director may also allow applicants to
composite samples from one or more
outfalls that discharge into the same
mixing zone:
(in All applicants must sample and
analyze for the pollutants listed in Ap-
pendix J. Table 1A of this part:
(iii) All applicants with a design flow
greater than or equal to 0.1 rngd must
sample and analyze for the pollutants
listed in Appendix J. Table 1 of this
part. Facilities that do not use chlo-
rine for disinfection, do not use chlo-
rine elsewhere in the treatment, proc-
ess, and have no reasonable potential
to discharge chlorine in their effluent
may delete chlorine from Table 1:
(ivi 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 estab-
lished water quality standards applica-
ble to the receiving waters:
(A) All POTWs with a design flow
rate equal to or greater than one mil-
lion gallons per clay:
(B) All POTWs with approved
pretreatment programs or POTWs re-
quired to develop a pretreatment pro-
gram;
(C) Other POTWs. as required by the
Director;
(vi The Director should require sam-
pling for additional pollutants, as ap-
propriate, 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 applica-
tion. Samples must be representative
of the seasonal variation in the dis-
charge from each outfall. Existing data
152
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Environmental Protection Agency
§122.21
may be used, if available, in lieu of
sampling done solely for the purpose of
this application. The Director should
require additional samples, as appro-
priate, 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 col-
lected within four and one-half years of
the application must be included in the
pollutant data summary submitted by
the applicant. If. however, the appli-
cant 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.
(viiii Applicants must collect sam-
ples of effluent and analyze such sam-
ples for pollutants in accordance with
analytical methods approved under 40
CFR part 136 unless an alternative is
specified in the existing- NPDES per-
mit. Grab samples must be used for pH.
temperature, cyanide, total phenols.
residual chlorine, oil and grease, and
fecal coliform. For all other pollutants.
24-hour composite samples must be
used. For a composite sample, only one
analysis of the composite of aliquots is
required.
(ix) The effluent monitoring- data
provided must include at least the fol-
lowing information for each parameter:
(A) Maximum daily discharge, ex-
pressed 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
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§122.21
40 CFR Ch. I (7-1-04 Edition)
(A) Results of a minimum of four
quarterly tests for a year, from the
year preceding the permit application:
or
of this
section must provide the number of
chronic or acute whole effluent tox-
icity tests that have been conducted
since the last permit reissuance.
(vii) Applicants must provide the re-
sults using the form provided by the
Director, or test summaries if avail-
able and comprehensive, for each whole
effluent toxicity test conducted pursu-
ant to paragraph (j)(5)(ii) of this sec-
tion for which such information has
not been reported previously to the Di-
rector.
(vlii) Whole effluent toxicity testing-
conducted pursuant to paragraph
(j)(5)(ii) of this section must be con-
ducted using methods approved under
40 CFR part 136. West coast facilities in
Washington. Oregon. California. Alas-
ka. Hawaii, and the Pacific Territories
are exempted from 40 CFR part 136
chronic methods and must use alter-
native guidance as directed by the per-
mitting 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 pro-
vide the dates on which the data were
submitted and a summary of the re-
sults.
(x) Each POTW required to perform
whole effluent toxicity testing- pursu-
ant to paragraph (])(5)(ii) of this sec-
tion must provide any information on
the cause of toxicity and written de-
tails of any toxicity reduction evalua-
tion conducted, if any whole effluent
toxicity test conducted within the past
four and one-half yea.rs revealed tox-
icity.
(6) Industrial discharges. Applicants
must submit the following information
about industrial discharges to the
POTW:
(i) Number of significant industrial
users
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Environmental Protection Agency
§122.21
in paragraphs (j)(6)(i) and (ii) of this
section.
(A) An annual report submitted with-
in one year of the application; or
(B) A pretreatment program:
(7) Discharges from hazardous icaste
generators and from waste cleanup or re-
mediation sites. POTWs receiving Re-
source Conservation and Recovery Act
(RCRA). Comprehensive Environ-
mental Response. Compensation, and
Liability Act (CERCLA). or RCRA Cor-
rective Action wastes or wastes gen-
erated at another type of cleanup or re-
mediation site must provide the fol-
lowing information:
(i) If the POTW receives, or has been
notified that it will receive, by truck.
rail, or dedicated pipe any wastes that
are regulated as RCRA hazardous
wastes pursuant to 40 CFR part 261. the
applicant must report, the following:
(A) The, method by which the waste is
received (i.e.. whether by truck, rail, or
dedicated pipe): and
(B) The hazardous waste number and
amount received annually of each haz-
ardous waste:
(ii) If the POTW receives, or has been
notified that it will receive.
wastewaters that originate from reme-
dial activities, including those under-
taken pursuant to CERCLA and sec-
tions 3004(u) or 3008
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§122,21
40 CFR Ch. 1 (7-1-04 Edition)
(4) The minimum rainfall that caused
a CSO event, if available, in the last
year:
(C) Description of receiving waters. The
following information about receiving'
waters:
(1) Name of receiving water:
(2) Name of watershed stream system
and the United States Soil Conserva-
tion Service watershed (M-digit> code
(if known): and
(3) Name of State Management River
Basin and the United States Geological
Survey hydrologlc cataloging unit <8-
digit) code (if known!: and
(D) CSO operations, A description of
any known water quality impacts on
the receiving water caused by the CSO
(e.g., permanent or intermittent beach
closing's, permanent or intermittent
shellfish bed closings, fish kills, fish
advisories, other recreational loss, or
exceedance of any applicable State
water quality standard):
(9) Contractors. All applicants must
provide the name, mailing address.
telephone number, and responsibilities
of all contractors responsible for any
operational or maintenance aspects of
the facility: and
(10) Signature. All applications must
be signed by a certifying official in
compliance with §122.22.
(k) Application requirements for new
sources and new discharges. New manu-
facturing, commercial, mining and sil-
vicultural dischargers applying for
NPDBS permits (except for new dis-
charges of facilities subject to the re-
quirements of paragraph «h> of this sec-
tion or new discharges of storm water
associated with industrial activity
which are subject to the requirements
of §122.26(c)(l) and this section (except
as provided by §122.26(c)(l)(ii)> shall
provide the following information to
the Director, using the application
forms provided by the Director:
(1) Expected outfall location. The lati-
tude and longitude to the nearest 15
seconds and the name of the receiving
water.
(2) Discharge dates. The expected date
of commencement of discharge.
(3) Flows, sources of pollution, and
treatment technologies—(i) Expected
treatment of wastewater. Description of
the treatment that the wastewater will
receive, along with all operations con-
tributing wastewater to the effluent.
average flow contributed by each oper-
ation, and the ultimate disposal of any
solid or liquid wastes not discharged.
iii> Line drawing. A line drawing of
the water flow through the facility
with a water balance as described in
§122.21i.gu2>.
i iii) Intermittent flows. If any of the
expected discharges will be intermit-
tent or seasonal, a description of the
frequency, duration and maximum
daily flow rate of each discharge occur-
rence (except for stormwater runoff,
spillage, or leaks).
i-l) Production. If a new source per-
formance standard promulgated under
section 306 of CWA or an effluent limi-
tation guideline applies to the appli-
cant and is expressed in terms of pro-
duction (or other measure of oper-
ation), a reasonable measure of the ap-
plicant's expected actual production
reported in the units used in the appli-
cable effluent guideline or new source
performance standard as required by
§122.45(b>(2) for each of the first three
years. Alternative estimates may also
be submitted if production is likely to
vary.
(5) Effluent characteristics. The re-
quirements in paragraphs (h)(4)(i). (ii>.
and (iii) of this section that an appli-
cant must provide estimates of certain
pollutants expected to be present do
not apply to pollutants present in a
discharge solely as a result of their
presence in intake water; however, an
applicant must report such pollutants
as present. Net credits may be provided
for the presence of pollutants in intake
water if the requirements of §122.45(g)
are met. All levels (except for dis-
charge flow, temperature, and pH)
must be estimated as concentration
and as total mass.
(i) Each applicant must report esti-
mated daily maximum, daily average,
and source of information for each out-
fall for the following pollutants or pa-
rameters. The Director may waive the
reporting requirements for any of these
pollutants and parameters if the appli-
cant submits a request for such a waiv-
er before or with his application which
demonstrates that information ade-
quate to support issuance of the permit
can be obtained through less stringent
reporting requirements.
156
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Environmental Protection Agency
§122.21
(A) Biochemical Oxygen Demand
(BOD).
(B) Chemical Oxygen Demand (COD).
(C) Total Organic Carbon (TOO.
(D) Total Suspended Solids (TSS).
(E) Flow.
(F) Ammonia (as N).
(G) Temperature (winter and sum-
mer).
(H) pH.
(ii) Each applicant must report esti-
mated daily maximum, daily average.
and source of information for each out-
fall for the following pollutants, if the
applicant knows or has reason to be-
lieve they will be present or if they are
limited by an effluent limitation guide-
line or new source performance stand-
ard either directly or indirectly
through limitations on an indicator
pollutant: all pollutants in table IV of
appendix D of part 122 (certain conven-
tional and nonconventional pollut-
ants).
(iii) Each applicant must report esti-
mated daily maximum, daily average
and source of information for the fol-
lowing pollutants if he knows or has
reason to believe that they will be
present in the discharges from any out-
fall:
(A) The pollutants listed in table III
of appendix D (the toxic metals, in the
discharge from any outfall: Total cya-
nide, and total phenols):
(B) The organic toxic pollutants in
table II of appendix D (except bis
(chloromethyl) ether, dichlorofluoro-
methane and trichlorofluoromethane).
This requirement is waived for appli-
cants 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 re-
port that 2.3,7,8 Tetrachlorodibenzo-P-
Dioxin (TCDD) may be discharged if he
uses or manufactures one of the fol-
lowing 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) pro-
panoic acid (Silvex, 2,4,5-TP) (CAS #93-
72-1);
(C) 2-(2.4.5-trichlorophenoxy) ethyl
2.2-dichloropropionate (Krbon) (CAS
#136- -25-4):
(D) 0.0-dimethyl 0-( 2.4.5-
trichlorophenyl) phosphorothioate
(Ronnel) (CAS #299-84-3);
(B) 2,4.5-trichlorophenol (TCP) (CAS
#95 95 4): or
(F) Hexachlorophene (HCP) (CAS #70-
30-4);
(v) Bach 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 avail-
able).
(vi) No later than two years after the
commencement of discharge from the
proposed facility, the applicant is re-
quired to complete and submit Items V
and VI of NPDES application Form 2c
(see §122.21ig>). However, the applicant
need not complete those portions of
Item V requiring tests which he has al-
ready performed and reported under
the discharge monitoring requirements
of his NPDES permit.
(6) Engineering Report. Each applicant
must report the existence of any tech-
nical evaluation concerning his waste-
water treatment, along with the name
and location of similar plants of which
he has knowledge.
(7) Other information. Any optional in-
formation the permittee wishes to have
considered.
(8) Certification. Signature of certi-
fying official under §122.22.
(1) Special provisions for applications
from new sources.(I) The owner or oper-
ator of any facility which may be a
new source (as defined in §122.2 ) and
which is located in a State without an
approved NPDES program must com-
ply with the provisions of this para-
graph (1)(1).
(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 in-
formation to the Regional Adminis-
trator so that he or she can determine
if the facility is a new source. The Re-
gional Administrator may request any
additional information needed to deter-
mine whether the facility is a new
source.
157
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§122.21
40 CFR Ch. I (7-1-04 Edition)
(ii) The Regional Administrator shall
make an initial determination whether
the facility is a new source within 30
days of receiving all necessary infor-
mation 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
(1)(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 chal-
lenge the Regional Administrator's ini-
tial new source determination by re-
questing 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 con-
solidate review of the determination
with any review of the permit decision.
(m) Variance requests by non-POTWs.
A discharger which is not a publicly
owned treatment works (POTW) may
request a variance from otherwise ap-
plicable effluent limitations under any
of the following statutory or regu-
latory provisions within the times
specified in this paragraph:
(1) Fundamentally different factors, (i)
A request for a variance based on the
presence of "fundamentally different,
factors" from those on which the efflu-
ent limitations guideline was based
shall be filed as follows:
(A) For a request from best prac-
ticable 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 pollut-
ant control technology (BCT). by no
later than:
(1) July 3. 1989. for a request based on
an effluent limitation guideline pro-
mulgated before February 4. 1987. to
the extent July 3. 1989 is not later than
that provided under previously promul-
gated regulations: or
(2) 180 days after the date on which
an effluent limitation guideline is pub-
lished in the FKDKRAI, RKGISTKR for a
request based on an effluent limitation
guideline promulgated on or after Feb-
ruary 4. 1987.
(ii) The request shall explain how the
requirements of the applicable regu-
latory and or statutory criteria have
been met.
(2) Non-conventional pollutants. A re-
quest for a variance from the BAT re-
quirements for CWA section 301(b)(2)(F)
pollutants (commonly called "non-con-
ventional" pollutants) pursuant to sec-
tion 301(c) of CWA because of the eco-
nomic capability of the owner or oper-
ator, or pursuant to section 301(g) of
the CWA (provided however that a
§301(g) variance may only be requested
for ammonia: chlorine; color: iron;
total phenols (4AAP) (when determined
by the Administrator to be a pollutant
covered by section 301(b)(2)(F)) and any
other pollutant which the Adminis-
trator lists under section 301(g)(4) of
the CWA) must be made as follows:
(i) For those requests for a variance
from an effluent limitation based upon
an effluent limitation guideline by:
(A) Submitting an initial request to
the Regional Administrator, as well as
to the State Director if applicable.
stating the name of the discharger, the
permit number, the outfall number!s).
the applicable effluent guideline, and
whether the discharger is requesting a
section 301(c) or section 301(g) modi-
fication or both. TMs request must
have been filed not later than:
(7) September 25. 1978. for a pollutant
which is controlled by a BAT effluent
limitation guideline promulgated be-
fore December 27. 1977; or
(2) 270 days after promulgation of an
applicable effluent limitation guideline
for guidelines promulgated after De-
cember 27. 1977: and
(B) Submitting a completed request
no later than the close of the public
comment period under §124.10 dem-
onstrating that the requirements of
§124.13 and the applicable requirements
of part 125 have been met. Notwith-
standing this provision, the complete
application for a request under section
301(g) shall be filed 180 days before EPA
158
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Environmental Protection Agency
§122.21
must, make a decision (unless the Re-
gional Division Director establishes a
shorter or longer period).
(ii) For those requests for a variance
from effluent limitations not haseil on
effluent limitation guidelines, the re-
quest need only comply with paragraph
(ni)(2)(i)iB> of this section and need not
be preceded by an initial request under
paragraph (m)(2)(i)(A) of this section.
(3) (4)[Reserved]
(5) Water Quality related effluent limita-
tions. A modification under section
302(b)(2l of requirements under section
302ia> for achieving1 water quality re-
lated effluent limitations may be re-
quested no later than the close of the
public comment period under §124.10 on
the permit from which the modifica-
tion is sought.
(6) Thermal discharges. A variance
under CWA section 316 thermal variances.)
(n) Variance requests by POTWs. A dis-
charger which is a publicly owned
treatment works (POTW) may request
a variance from otherwise applicable
effluent limitations under any of the
following statutory provisions as speci-
fied in this paragraph:
(1) Discharges into marine waters. A re-
quest for a modification under CWA
section 301(h) of requirements of CWA
section 301(b)(lXB> for discharges into
marine waters must be filed in accord-
ance with the requirements of 40 CFR
part 125. subpart G.
(2) [Reserved]
(3) Water quality based effluent limita-
tion. A modification under CWA section
302(b)i2) of the requirements under sec-
tion 302(a) for achieving water quality
based effluent limitations shall be re-
quested no later than the close of the
public comment period under § 124.10 on
the permit from which the modifica-
! ion is sought.
to) Kipedited variance procedures and
nine extensions. (1) Notwithstanding the
time requirements in paragraphs (m»
and (n) of this section, the Director
may notify a permit applicant before a
draft permit is issued under §124.6 that
the draft permit will likely contain
limitations which are eligible for
variances. In the notice the Director
may require the applicant as a condi-
tion of consideration of any potential
variance request, to submit a request
explaining how the requirements of
part 125 applicable to the variance have
been met and may require its submis-
sion within a specified reasonable time
after receipt of the notice. The notice
may be sent before the permit applica-
tion has been submitted. The draft or
final permit may contain the alter-
native limitations which may become
effective upon final grant of the vari-
ance.
(2) A discharger who cannot file a
timely complete request required
under paragraph or
un)(2)(ii) of this section may request
an extension. The extension may be
granted or denied at the discretion of
the Director. Extensions shall be no
more than 6 months in duration.
(p) Recordkeeping. Except for informa-
tion required by paragraph (d)<3>
-------
§122,21
40 CFR Ch. I (7-1-04 Edition)
substantially identical information.
The Director may also waive any re-
quirement of this paragraph that is not
of material concern for a specific per-
mit, if approved by the Regional Ad-
ministrator. The waiver request to the
Regional Administrator must include
the State's justification for the waiver.
A Regional Administrator's dis-
approval of a State's proposed waiver
does not constitute final Agency ac-
tion, but does provide notice to the
State and permit applicant^) that EPA
may object to any State-issued permit
issued in the absence of the required
information-
Ill Facility in formal Ion. All applicants
must, submit the following informa-
tion:
(i) The name, mailing address, and lo-
cation of the TWTDS for which the ap-
plication is submitted:
lii) Whether the facilitv is a Class I
Sludge Management Facility:
(iii) The design flow rate tin million
gallons per day):
(iv> The total population served: and
(V) The TWTDS" s status as Federal.
State, private, public, or other entity:
(2) Applicant information. All appli-
cants must submit the following infor-
mation:
(i) The name, mailing address, and
telephone number of the .applicant: and
(ii) Indication whether the applicant
is the owner, operator, or both;
(3) Permit information. All applicants
must submit the facility's NPDES per-
mit number, if applicable, and a listing
of all other Federal. State, and local
permits or construction approvals re-
ceived or applied for under any of the
following" programs:
(i) Hazardous Waste Management
program under the Resource Conserva-
tion and Recovery Act (RCRAi:
(ii) UIC program under the Safe
Drinking Water Act (SDWAs;
(iii) NPDES program under the Clean
Water Act rCWA»:
(iv) Prevention of Significant Dete-
rioration (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:
iviii Dredge or fill permits under sec-
tion 40-! of CWA:
iviii) Other relevant environmental
permits, including State or local per-
mits:
(4) Indian country. All applicants
must identify any generation, treat-
ment, storage, land application, or dis-
posal of sewage sludge that occurs in
Indian country:
in) Topographic map. All applicants
must submit a topographic map (or
other map if a topographic map is un-
available' extending one mile beyond
property boundaries of the facility and
showing the following information:
(ii All sewage sludge management fa-
cilities, including on-site treatment.
storage, and disposal sites: and
(iii Wells, springs, and oilier surface
water bodies that are within ' i mile of
the property boundaries and listed in
publk- records or otherwise known to
the appiirant:
((3) ,Vr?fcij7e' xludge handling. All appli-
cants must submit a line drawing and
or a narrative description that identi-
fies all sewag'e sludge management
practices employed during the term of
the permit, including all units used for
collecting, dewatering. storing", or
treating sewage sludge, the destina-
tion! si of all liquids and solids leaving
each such unit, and all processes used
for pathogen reduction and vector at-
traction reduction:
(7) St'it'iigt' sludge quality. The appli-
cant must submit sewage sludge moni-
toring data for the pollutants for which
limits in sewage sludge have been es-
tablished in 40 CFR part 503 for the ap-
plicant's use or disposal practices on
the date of permit application.
(ii The Director may require sam-
pling for additional pollutants, as ap-
propriate, on a case-tay-case basis:
(iii Applicants must provide data
from a minimum of three samples
taken within four and one-half years
prior to the date of the permit applica-
tion. Samples must be representative
of the sewage sludge and should be
taken at least one month apart. Exist-
ing data may be used in lieu of sam-
pling done solely for the purpose of this
application;
(iii) Applicants must collect and ana-
lyze samples in accordance with ana-
lytical methods approved under SW-846
160
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Environmental Protection Agency
§122.21
unless an alternative has been specified
in an existing sewage sludge permit:
(iv) The monitoring data provided
must include at least the following in-
formation for each parameter:
(A) Average monthly concentration
for all samples (mg/kg dry weight).
based upon actual sample values:
(B) The analytical method used: and
(C) The method detection level.
(8) Preparation of sewage sludge. If the
applicant is a "person who prepares"
sewage sludge, as defined at 40 CFR
503.9 are met. and
a description of any treatment proc-
esses used to reduce vector attraction
properties in sewage sludge; and
(C) A description of any other blend-
ing, treatment, or other activities that
change the quality of sewage sludge:
(iv) If sewage sludge from the appli-
cant's facility meets the ceiling con-
centrations in 40 CFR 503.13(b)(l). the
pollutant concentrations in
§503.13(b>(3). the Class A pathogen re-
quirements in §503.32(a). and one of the
vector attraction reduction require-
ments in §503.33(b)(l) 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 appli-
cant'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 pro-
vide 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 appli-
cant'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 pro-
vide the following information for each
facility receiving the sewage sludge:
(A) The name and mailing address of
the receiving facility:
(Bi The total dry metric tons per 365-
day period of sewage sludge subject to
this paragraph that the applicant pro-
vides to the receiving facility:
(C) A description of any treatment,
processes occurring at the receiving fa-
cility, including blending activities
and treatment to reduce pathogens or
vector attraction characteristic:
(D) A copy of the notice and nec-
essary information that the applicant
is required to provide the receiving fa-
cility under 40 CFR 503.12
-------
§122.21
40CFRCH. I (7-1-04 Edition)
(i) The total dry metric tons per 365-
day period of sewage sludg'e subject to
this paragraph that is applied to the
land:
(ii) If any land application Kites 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
States 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 dif-
ferent 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 re-
quirement for this vegetation:
(H) Whether either of the vector at-
traction reduction options of 40 CFR
503.33(b)(9) or
-------
Environmental Protection Agency
§122.21
number for the surface disposal site:
and
(B) The total dry metric tons from
the applicant's facility per 365-day pe-
riod 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 lo-
cation 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 topo-
graphic map (or other map if a topo-
graphic 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 perme-
ability of 1 x 10 7 cm,sec:
(G) A description of any leachate col-
lection 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 ac-
tual distance from the unit boundary
to the site property line:
(I) The remaining capacity (dry met-
ric tons) for the active sewage sludge
unit:
(J) The date on which the active sew-
age 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:
(1) The name, contact person, and
mailing address of the facility: and
(2) Available information regarding
the quality of the sewage sludge re-
ceived from the facility, including any
treatment at the facility to reduce
pathogens or vector attraction charac-
teristics;
(L) Whether any of the vector attrac-
tion reduction options of 40 CFR
503.33(b)(9) through (b)(ll) is met at the
active sewage sludge, unit, and a de-
scription of any procedures employed
at the time of disposal to reduce vector
attraction properties in sewage sludge:
(M) The following information, as ap-
plicable to any ground-water moni-
toring occurring at the active sewage
sludge unit:
(1) A description of any ground-water
monitoring occurring at the active
sewage sludge unit:
(2) Any available ground-water moni-
toring data, with a description of the
well locations and approximate depth
to ground water;
(3) A copy of any ground-water moni-
toring plan that has been prepared for
the active sewage sludge unit:
(4) A copy of any certification that
lias been obtained from a Qualified
ground-water scientist that the aquifer
has not been contaminated: and
(N) If site-specific pollutant limits
are being sought for the sewage sludge
placed on this active sewage sludge
unit, information to support such a re-
quest:
(11) Incineration. If sewage sludge
from the applicant's facility is fired in
a sewage sludge incinerator, the appli-
cant must provide the following infor-
mation:
(i) The total dry metric tons of sew-
age sludge from the applicant's facility
that is fired in sewage sludge inciner-
a.tors per 365-day period:
(ii) The following information for
each sewage sludge incinerator firing
the applicant's sewage sludge that the
applicant does not own or operate:
(A) The name and or number, contact
person, mailing address, and telephone
number of the sewage sludge inciner-
ator: and
(B) The total dry metric tons from
the applicant's facility per 365-day pe-
riod fired in the sewage sludge inciner-
ator:
(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 inciner-
ator:
(B) The incinerator's latitude and
longitude to the nearest second, and
method of determination:
163
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§122.21
40CFRCH. I (7-1-04 Edition)
(C) The total dry metric tons per 365-
day period fired in the sewaye sludge.
incinerator:
(D) Information, test data, and docu-
mentation of ongoing- operating param-
eters indicating- that compliance with
the National Emission Standard for Be-
ryllium in 40 CFR part 61 will be
achieved:
(E) Information, test data, and docu-
mentation of ongoing operating- param-
eters indicating- that compliance with
the National Emission Standard for
Mercury in 40 CFR part 61 will be
achieved:
(F) The dispersion factor for the sew-
age sludge incinerator, as well as mod-
eling results and supporting docu-
mentation;
The control efficiency for param-
eters regulated in 40 CFR 503.43. as well
as performance test results and sup-
porting documentation:
(H) Information used to calculate the
risk specific concentration (RSC) for
chromium, including the results of in-
cinerator 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 g-as for the
sewage sludge incinerator:
< J) The type of sewage sludge inciner-
ator:
(K) The maximum performance test
combustion temperature, as obtained
during the performance test of the sew-
age sludge incinerator to determine
pollutant control efficiencies:
(L) The following information on the
sewage sludge feed rate used during the
performance test:
(1) Sewage sludge feed rate in dry
metric tons per day;
(2) Identification of whether the feed
rate submitted is average use or max-
imum design; and
(3) A description of how the feed rate
was calculated;
(M) The incinerator stack height in
meters for each stack, including identi-
fication 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
ihe performance test of the sewage
sludye incinerator to determine pollut-
ant control efficiencies:
(O) Identification of the monitoring
equipment in place, including (but not
limited to) equipment to monitor the
following:
fl) Total hydrocarbons or Carbon
Monoxide:
(2) Percent oxygen:
i.'l) Percent moisture: and
14) Combustion temperature: and
'P» A list of all air pollution control
equipment used with this sewage
sludge incinerator:
(12) Disposal in a municipal solid waste
hind fill. If sewage sludge from the ap-
plicant's facility is sent to a municipal
solid waste landfill (MSWLF). the ap-
plicant must provide the following in-
formation for each MSWLF to which
sewage sludge is sent:
ii) 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 re-
quirements for disposal of sewage
sludge in a MSWLF. including the re-
sults 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 cri-
teria set forth in 40 CFR part 258:
(13) Contractors. All applicants must
provide the name, mailing address.
telephone number, and responsibilities
of all contractors responsible for any
operational or maintenance aspects of
the facility related to sewage sludge
generation, treatment, use. or disposal;
(14) Other information. At the request
of the permitting authority, the appli-
cant must provide any other informa-
tion necessary to determine the appro-
priate standards for permitting under
40 CFR part 503, and must provide any
other information necessary to assess
the sewage sludge use and disposal
practices, determine whether to issue a
permit, or identify appropriate permit
requirements; and
(15) Signature. Al! applications must
be signed by a certifying official in
compliance with §122.22.
164
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Environmental Protection Agency
§122.21
[Note 1: At 46 FR 2046. Jan. 8. 1981. the En-
vironmental 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 con-
tinues in effect.!
[Note 2; At 46 FR 22585. Apr. 20. 1981. the
Environmental Protection Agency suspended
until further notice §122.21(gl)(7)(v)(Ai 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 or-
ganic fractions in the Greige Mills Sub-
category of the Textile Mills industry (sub-
part C—-Low water use processing of 40 GFR
part 410). and testing and reporting for the
pesticide fraction in all other subcategories
of this industrial category.
b. Testing and reporting1 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 subcat-
egories of this industrial category.
c. Testing and reporting for all four GC.-MS
fractions in the Porcelain Enameling indus-
try.
This revision continues that suspension.] '•
[Note 3: At 46 FR 35090. July 1. 1981, the En-
vironmental Protection Agency suspended
until further notice §122.21(gK7)(v)tA) 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 sub-
categories of this industrial category.
b. Testing and reporting for the pesticide
fraction in the Leather Tanning and Fin-
ishing. Paint and Ink Formulation, and Pho-
tographic Supplies industrial categories.
c. Testing and reporting for the acid, base/
neutral and pesticide fractions in the Petro-
leum Refining industrial category.
d. Testing and reporting for the pesticide
fraction in the Papergrade Sulfite subcat-
egories (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 (sub-
part E): testing and reporting for the vola-
tile, 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 (sub-
part 0). Market Bleached Kraft (subpart G).
Tissue from Wastepaper (subpart T). and
\onintegrated-Tissue Papers (subpart S).
e. Testing and reporting for the base neu-
tral fraction in the Once-Through Cooling
Water. Fly Ash and Bottom Ash Transport
Water process wastestreams of the Steam
Electric Power Plant industrial category.
This revision continues that suspension.] '•
(D Applications for facilities with cool-
ing water intake structures—(1) New fa-
cilities with new or modified cooling water
intake structures. New facilities with
cooling water intake structures as de-
fined in part 125. subpart T. of this
chapter must report the information
required under paragraphs (r)(2). (3).
and (4) of this section and §125.86 of
this chapter. Requests for alternative
requirements under § 125.85 of this
chapter must be submitted with your
permit application.
(2) Source wafer physical data. These
include:
(i) A narrative description and scaled
drawings showing the physical configu-
ration of all source water bodies used
by your facility, including area] dimen-
sions, 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 characteriza-
tion of the source waterbody's
hydrological and geomorphological fea-
tures, as well as the methods you used
to conduct any physical studies to de-
termine your intake's area of influence
writhin the vvaterbody and the results of
such studies; and
(iii) Locational maps.
(3) Cooling water intake structure data.
These include:
(i) A narrative description of the con-
figuration 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 de-
grees, minutes, and seconds for each of
your cooling water intake structures;
1 EDITORIAL NOTE: The words "This revi-
sion" refer to the document published at 48
FR 14153. Apr. 1. 1983.
165
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§122.22
40 CFR Ch, I (7-1-04 Edition)
(iii) A narrative description of the
operation of each of your cooling' water
intake structures, including design in-
take 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, recir-
culating flows, and discharges: and
(v) Engineering drawings of the cool-
ing water intake structure.
(4) Source water baseline biological
characterization data. This information
is required to characterize the biologi-
cal community in the vicinity of the
cooling water intake structure and to
characterize the operation of the cool-
ing water intake structures. The Direc-
tor may also use this information in
subsequent permit renewal proceedings
to determine if your Design and Con-
struction Technology Plan as required
in §125.86(b)(4) of this chapter should be
revised. This supporting information
must include existing data (if they are
available). However, you may supple-
ment the data using newljr 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 cool-
ing water intake structure:
(iii) Identification of the species and
life stages that would be most suscep-
tible to impingement and entrainment..
Species evaluated should include the
forage base as well as those most im-
portant 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 sea-
sonal and daily activities (e.g.. feeding
and water column migration) of bio-
logical organisms in the vicinity of the
cooling water intake structure:
(vi) Identification of all threatened.
endangered, and other protected spe-
cies that might be susceptible to im-
pingement and entrainment at your
cooling water intake structures:
(vii) Documentation of anj7 public
participation or consultation with Fed-
eral or State agencies undertaken in
development of the plan; and
(viii) If 5rou supplement the informa-
tion requested in paragraph (r)(4)(i) of
this section with data collected using
field studies, supporting documenta-
tion for the Source Water Baseline Bio-
logical Characterization must include
a description of all methods and qual-
ity assurance procedures for sampling,
and data analysis including a descrip-
tion of the study area: taxonomic iden-
tification of sampled and evaluated bi-
ological assemblages (including all life
stages of fish and shellfish); and sam-
pling and data analysis methods. The
sampling and/or data analysis methods
you use must be appropriate for a
quantitative survey and based on con-
sideration of methods used in other bi-
ological 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.
148 FR 11153. Apr. 1. 1983. as amended at 49
FR 31842. Aug. 8, 1984: 49 FR 38046. Sept. 26.
1984; 50 FR 6940. 6941, Feb. 19. 1985: 50 FR
35203. AUK. 29. 1985: 51 FR 26991. July 28. 1986:
53 FR 4158. Feb. 12. 1988: 53 FR 33007, Sept. 6,
1988: 54 FR 254. Jan. 4, 1989: 54 FR 18782. May
2. 1989: 55 FR 30128, July 24. 1990: 55 FR 48062.
Nov. 16. 1990: 58 FR 9413. Feb. 19, 1993: 60 FR
17956. Apr. 7, 1995; 60 FR 33931. June 29. 1995:
60 FR 40235. Aug'. 7, 1995: 64 FR 42462. Aug-. 4.
1999: 64 FR 68838, Dec. 8. 1999: 65 FR 30905.
May 15. 2000; 66 FR 65337. Dec. 18. 2001: 68 FR
7265. Feb. 12. 2003]
$ 122.22 Signatories to permit applica-
tions and reports (applicable to
State programs, see § 123.25).
(a) Applications. All permit applica-
tions shall be signed as follows:
(1) For a corporation. By a responsible
corporate officer. For the purpose of
this section, a responsible corporate of-
ficer means: (i) A president, secretary,
treasurer, or vice-president of the cor-
poration in charge of a principal busi-
ness function, or any other person who
perfoms similar policy- or decision-
making functions for the corporation,
or (ii) the manager of one or more man-
ufacturing, production, or operating fa-
cilities, provided, the manager is au-
thorized to make management deci-
sions which govern the operation of the
166
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Environmental Protection Agency
§122.23
regulated facility including having the
explicit or implicit duty of making-
major capital investment recommenda-
tions, and initiating and directing'
other comprehensive measures to as-
sure long term environmental compli-
ance with environmental laws and reg-
ulations; the manager can ensure that
the necessary systems are established
or actions taken to gather complete
and accurate information for permit
application requirements: and where
authority to sign documents has been
assigned or delegated to the manager
in accordance with corporate proce-
dures.
NOTE: EPA does not require specific assign-
ments or delegations of authority to respon-
sible corporate officers identified in
§122.22(a)(l)(i). The Agency will presume that.
these responsible corporate officers have the
requisite authority to sign permit applica-
tions unless the corporation has notified the
Director to the contrary. Corporate proce-
dures governing authority to sign permit ap-
plications may provide for assignment or
delegation to applicable corporate positions
under §122.22(a)(l)(ii> rather than to specific
individuals.
(2) For a partnership or note proprietor-
ship. 'By a general partner or the pro-
prietor, respectively: or
(3) For a municipality. State, Federal,
or other public agency. By either a prin-
cipal executive officer or ranking elect-
ed official. For purposes of this section.
a principal executive officer of a Fed-
eral agency includes: . Re-
source Conservation and Recovery Act (42
U.S.C. 6901 t-l, «'(/.n
(48 FR 14158. Apr. 1. 1983. as amended at 48
FR 39619. Sept. I. 1983: 49 FR 38047. Sept. 29.
1984: 50 FR 6941. Feb. 19. 1985: 55 FR 48063.
Nov. 16. 1990: 65 FR 30907. May 15. 20001
§ 122.23 Concentrated animal feeding
operations (applicable to State
NPDES programs, see § 123.25),
(a) Permit re.Quimnent for CAFOs. Con-
centrated animal feeding operations, as
defined in paragraph of this section.
are point sources that require NPDES
permits for discharges or potential dis-
charges. Once an operation is defined
as a CAFO. the NPDES requirements
for CAFOs apply with respect to all
167
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§122.23
40 CFR Ch. I (7-1-04 Edition)
animals in confinement at the oper-
ation and all manure, litter and proc-
ess wastewater generated by those ani-
mals or the production of those ani-
mals, regardless of the type of animal.
(b) Definitions applicable to this sec-
tion:
(1) Animal feeding operation ("AFO")
means a lot or facility (other than an
aquatic animal production facility)
where the following conditions are
met:
(i) Animals (other than aquatic ani-
mals) 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 sus-
tained in the normal growing season
over any portion of the lot or facility.
(2) Concentrated animal feeding oper-
ation ("CAFO") means an AFO that is
defined as a Large CAFO or as a Me-
dium CAFO by the terms of this para-
graph, or that is designated as a CAFO
in accordance with paragraph (o of
this section. Two or more AFOs under
common ownership are considered to
be a single AFO for the purposes of de-
termining the number of animals at an
operation, if they adjoin each other or
if they use a common area or system
for the disposal of wastes.
(3) The term land application area
means land under the control of an
AFO owner or operator, whether it is
owned, rented, or leased, to which ma-
nure, litter or process wastewater from
the production area is or may be ap-
plied.
(4) Large concentrated animal feeding
operation ("Large CAFO"). An AFO is
defined as a Large CAFO if it stables or
confines as many as or more than the
numbers of animals specified in any of
the following categories:
(i) 700 mature dairy cows, whether
milked or dry;
(ii) 1.000 veal calves;
(iii) 1,000 cattle other than mature
dairy cows or veal calves. Cattle in-
cludes 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 lay-
ing hens), if the AFO uses other than a
liquid manure handling system;
Cxi) 82.000 laying hens, if the AFO
uses other than a liquid manure han-
dling system;
(xii) 30.000 ducks (if the AFO uses
other than a liquid manure handling-
system): or
(xiii) 5.000 ducks (if the AFO uses a
liquid manure handling system).
(5) The term manure is defined to in-
clude manure, bedding, compost and
raw materials or other materials com-
mingled with manure or set aside for
disposal.
(6) Medium concentrated animal feeding
operation ("Medium CAFO"). The term
Medium CAFO includes any AFO with
the type and number of animals that
fall within any of the ranges listed in
paragraph (b)(6)(i) of this section and
which has been defined or designated as
a CAFO. An AFO is defined as a Me-
dium CAFO if:
(i) The type and number of animals
that it stables or confines falls within
any of the following ranges:
(A) 200 to 699 mature dairy cows,
whether milked or dry:
(B) 300 to 999 veal calves:
(C) 300 to 999 cattle other than ma-
ture 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 broil-
ers, 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;
168
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Environmental Protection Agency
§122.23
(L> 10.000 to 29.999 ducks (if the AFC)
uses other than a liquid manure han-
dling system); or
(Mi 1.500 to 4.999 ducks (if the AFO
uses a liquid manure handling' system);
and
(ii> Either one of the following condi-
tions 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 di-
rectly 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 oper-
ation.
(7> Process wasteirater means water di-
rectly or indirectly used in the oper-
ation of the APO for any or all of the
following': spillage or overflow from
animal or poultry watering systems:
washing, cleaning', or flushing' pens.
barns, manure pits, or other AFO fa-
cilities: direct contact swimming.
washing, or spray cooling of animals:
or dust control. Process wastewater
also includes any water which comes
into contact with any raw materials.
products, or byproducts including ma-
nure, litter, feed. milk, eggs or bed-
ding.
(8) Production area means that part of
an AFO that includes the animal con-
finement area, the manure storage
area, the raw materials storage area.
and the waste containment areas. The
animal confinement area includes but
is not limited to open lots, housed lots.
feediots. confinement houses, stall
barns, free stall barns, milkrooms,
milking centers, cowyards. barnyards.
medication pens, walkers, animal
walkways, and stables. The manure
storage area includes but is not limited
to lagoons, runoff ponds, storage sheds.
stockpiles, under house or pit storages.
liquid impoundments, static piles, and
composting piles. The raw materials
storage area includes but is not limited
to feed silos, silage bunkers, and bed-
ding materials. The waste containment
area includes but is not limited to set-
tling basins, and areas within berms
and diversions which separate
uncontaminated storm water. Also in-
cluded in the definition of production
area is any egg washing' or eg'g proc-
essing facility, and any area used in
the storage, handling, treatment, or
disposal of mortalities.
(91 Small eancentratad animal feeding
operation ("Small CAFO"). An AFO that
is designated a* A CAFO and is not a
Medium CAFO.
ic) Hon inuy an AFC) be deuiiinuted as
(i CAFO'.' The appropriate authority
(/.('.. State Director or Regional Admin-
istrator, or both, as specified in para-
graph (cHli of this section) may des-
ignate any AFO as a CAFO upon deter-
mining that it is a significant contrib-
utor of pollutants to waters of the
United States
(1) Wli.!> mat/ designate''
(i) Appro ced Staffs. In States that are
approved or authorized by EPA under
Part 123. CAFO designations may be
made by the State Director, The Re-
gional Administrator may also des-
ignate CAFOs in approved States, but
only where the Regional Administrator
has determined that one or more pol-
lutants in the APO's discharge contrib-
utes to an impairment in a downstream
or adjacent State or Indian country
water that is impaired for that pollut-
ant.
(ii) States if i tli no approved program.
The Regional Administrator may des-
ignate CAFOs in States that do not
have an approved program and in In-
dian country where no entity has ex-
pressly demonstrated authority and
has been expressly authorized by EPA
to implement the NPDES program.
(2) In making this designation, the
State Director or the Regional Admin-
istrator shall consider the following
factors:
(i) The size of the APO and the
amount of wastes reaching waters of
the United States;
(ii) The location of the APO relative
to waters of the United States:
(iii) The means of conveyance of ani-
mal wastes and process waste waters
into waters of the United States;
(iv) The slope, vegetation, rainfall.
and other factors affecting the likeli-
hood or frequency of discharge of ani-
mal wastes manure and process waste
waters into waters of the United
States; and
(v) Other relevant factors.
169
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§122.23
40 CFR Ch. I (7-1-04 Edition)
(3) No AFO shall be designated under
this paragraph unless the State Direc-
tor or the Regional Administrator has
conducted an on-site inspection of the
operation and determined that the op-
eration 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
CAPO unless:
(i) Pollutants are discharged into wa-
ters of the United States through a
manmade ditch, flushing system, or
other similar manmade device: or
(ii) Pollutants are discharged di-
rectly into waters of the United States
which originate outside of the facility
and pass over, across, or through the
facility or otherwise come into direct
contact with the animals confined in
the operation.
(d) Who must seek coverage under an
NPDES permit?
(1) All CAFO owners or operators must
apply for a permit. All CAFO owners or
operators must seek coverage under an
NPDES permit, except as provided in
paragraph (d)(2) of this section. Specifi-
cally, the CAFO owner or operator
must either apply for an individual
NPDES permit or submit a notice of
intent for coverage under an NPDES
general permit. If the Director has not
made a general permit available to the
CAFO. the CAFO owner or operator
must submit an application for an indi-
vidual permit to the Director.
(2) Exception. An owner or operator of
a Large CAFO does not need to seek
coverage under an NPDES permit oth-
erwise required by this section once
the owner or operator has received
from the Director notification of a de-
termination under paragraph (f) of this
section that the CAFO has "no poten-
tial to discharge" manure, litter or
process wastewater,
(3) Information to submit with permit
application. A permit application for an
individual permit must include the in-
formation specified in §122.21. A notice
of intent for a general permit must in-
clude the information specified in
§§122.21 and 122.28.
(e) Land application discharges from a
CAFO are subject to NPDES requirements.
The discharge of manure, litter or
process wastewater to waters of the
United States from a CAFO as a result
of the application of that manure, lit-
ter or process wastewater by the CAFO
to land areas under its control is a dis-
charge from that CAFO subject to
NPDES permit requirements, except
where it is an agricultural storm water
discharge as provided in 33 U.S.C.
1362(14). For purposes of this para-
graph, where the manure, litter or
process wastewater has been applied in
accordance with site specific nutrient
management practices that ensure ap-
propriate agricultural utilization of
the nutrients in the manure, litter or
process wastewater, as specified in
§122.42ie)(l)(vi)-(ix), a precipitation-re-
lated discharge of manure, litter or
process wastewater from land areas
under the control of a CAFO is an agri-
cultural stormwater discharge.
(f) ".Vo potential to discharge" deter-
minations for Large CAFOs—(1) Deter-
mination by the Director. The Director.
upon request, may make a case-specific
determination that a Large CAFO has
"no potential to discharge" pollutants
to waters of the United States. In mak-
ing- this determination, the Director
must consider the potential for dis-
charges from both the production area
and any land application areas. The Di-
rector must also consider any record of
prior discharges by the CAFO. In no
case may the CAFO be determined to
have "no potential to discharge" if it
has had a discharge within the 5 years
prior to the date of the request sub-
mitted under paragraph (f)(2) of this
section. For purposes of this section,
the term "no potential to discharge"
means that there is no potential for
any CAFO manure, litter or process
wastewater to be added to waters of
the United States under any cir-
cumstance or climatic condition. A de-
termination that there is "no potential
to discharge" for purposes of this sec-
tion only relates to discharges of ma-
nure, litter and process wastewater
covered by this section.
(2) Information to support a "no poten-
tial to discharge" request. In requesting a
determination of "no potential to dis-
charge." the CAFO owner or operator
must submit any information that
would support such a determination,
within the time frame provided by the
170
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Environmental Protection Agency
§122.23
Director and in accordance with para-
graphs (g) and (h) of this section, Such
information must include all of the in-
formation specified in §122.21(1') and
. The Director has
discretion to require additional infor-
mation to supplement the request, and
may also gather additional information
through on-site inspection of the
CAFO.
(3) Process for making u "no potential to
dificharffe" determination. Before making
a final decision to grant a "no potential
to discharge'' determination, the Direc-
tor must issue a notice to the public
stating that, a "no potential tu dis-
charge" request has been received. This
notice must be accompanied by a fact
sheet which includes, when applicable:
a brief description of the type of facil-
ity or activity which is the subject of
the "no potential to discharge" deter-
ruination: a brief summary of the fac-
tual basis, upon which the request is
based, for granting the "'no potential to
discharge" determination: and a de-
scription of the procedures for reaching
a final decision on the "no potential to
discharge" determination. The Director
must base the decision to grant A "no
potential to discharge" determination
011 the administrative record, which in-
cludes all information submitted in
support of a "no potential to discharge"
determination and any other sup-
porting' data gathered by the permit-
ting' authority. The Director must no-
tify any CAPO seeking- a "no potent-la]
to discharge" determination of its final
determination within 90 days of receiv-
ing the request.
(4) What is the deadline for requesting a
"no potential to discharge" determination?
The owner or operator must request a
"no potential to discharge" determina-
tion by the applicable permit applica-
tion date specified in paragraph igi of
this section. If the Director's final de-
cision is to deny the "no potential to
discharge" determination, the owner or
operator must seek coverage under a
permit within 30 days after the denial.
(5i The "no puti'.ntial to discharge" de-
termination tloey not relieve the CAFO
front (he consequence* of an actual dis-
charge. Any unpermitted CAFO that
discharges pollutants into the waters
of the United States is in violation of
the Clean Wafer Act even if it has re-
ceived a "no potential to discharge" de-
Germination from the Director. Any
CAFO that has received a determina-
tion of "no potential to discharge." but
who anticipates changes in cir-
cumstances that could create the po-
tential for a discharge, should contact
the Director, and apply for and obtain
permit authorization prior to the
change of circumstances.
16) The Director retain* authority to re.-
diiire a pertnil. Where the Director has
issued a determination of "no potential
to discharge," the Director retains the
authority to subsequently require
NPDES permit coverage if cir-
cumstances at the facility change, if
new information becomes available, or
if there i.s another reason for the Direc-
1 or to determine that the CAFO has a
potential *o discharge.
fg> IVV.'i '. in ids! a CAFO we.!, ran'rauc
under (ii; \TDES permit'.'
i'1'i Opi ..«i'lf»btain coverage under an
XFDE8 permit as of April 14. 2003. and
comply with all applicable NPDES re-
quirements, including the duty to
maintain permit coverage in accord-
ance with paragraph (h) of this section.
t'2'< Ope>:i!ions defined f/-v CAFOs at, <>t
April 14. 'Jin/3, who u'ere not defined «.%
CAFOx p>: :f tu that date. For all CAFOs,
the owner or operator of the CAFO
must seek to obtain coverage under an
NPDK.S permit by a date specified by
the Direi tor. but no later than Feb-
ruary 13. i!00fi.
(3i Opfr
-------
§122.24
40CFRCh. I (7-1-04 Edition)
later than 90 days after becoming de-
fined as a CAFO: except that
(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 April 13.
2006. or 90 days after becoming defined
as a CAFO. whichever is later.
(4) New sources. New sources must
seek to obtain coverage under a permit
at least 180 days prior to the time that
the CAFO commences operation.
(5) Operations that are designated as
CAFOs. For operations designated as a
CAFO in accordance with paragraph (c)
of this section, the owner or operator
must seek to obtain coverage under a
permit no later than 90 days after re-
ceiving notice of the designation.
(6) No potential to discharge. Notwith-
standing any other provision of this
section, a CAFO that has received a "no
potential to discharge" determination
in accordance with paragraph
-------
Environmental Protection Agency
§122.26
into that designated area for the main-
tenance or production of harvestable
freshwater, estuarine. or marine plants
or animals.
(2> Dt'xiffnuled project ttrea means the
portions of the waters of the United
States within which the permittee or
permit applicant plans to confine the
cultivated species, using a method or
plan or operation {including1, but not
limited to. physical confinement)
which, on the basis of reliable sci-
entific evidence. IK expected lo ensure
that specific individual organisms com-
prising an aquacitlture crop will enjoy
increased growth attributable io the
discharge of pollutant*, and be har
vested within a defined yeogsaphic
are Prior !o Oc-
tober 1 1994. discharges composed en-
tirely of storm water .shall not be re-
quired to obtain A NPDKK permn ex-
cept .
iii A dlsci.arg'e with respect to which
a permit has been issued prior to Feb-
ruary -L 1987:
(-J>r.
(iii> A discharge from a large munic-
ipal .separate st.orm sewer system.
(iv! A discharge from a medium mu-
nicipal separate storm sewer system:
(v; A discharge which the, Director.
or in States with approved NPDEH pro-
grams, 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 con-
veyance or system of conveyances used
for collecting and conveying1 storm
water runoff or a system of discharges
from municipal separate storm sewers.
except for those discharges from con-
veyances which do not require a permit
under paragraph The I.Mrector may not. require a
permit tor discharges of storm wates
runoff friiin mining operations or oil
and gas exploration, product.ion. proc-
essing o! treatment opera) ions or
transmission facilities, eomp-.tsed en-
tirely oi' :"!'.!',v;-- which are from convey-
ances 0! -A'-tcnis of conveyances tin-
'.•ludhiL' b;;; not limited to pipes con-
duit-,, dii.hes. and channels! used for
collect ill'-' aid lonveviim precipitaliojj
runoff a::;i wnu 11 are not contaminated
by i ontdi-1, with 01 that lias not come
into coiii.tt t with, any oyer'nmlen. raw
material, inte! mediate products, fin-
ished product. bvpi'fKiUcf or waste
products ;••;. j,u:d on liic site of such op-
erations.
(3) Lu):.;i JllJ nuJiittll iiiiitliclpul Si.'i>a
iati *<(•«••)' -i.(/.. > i :• Permits
must be obtained for all dischiirtves
from lar-:i- and medium rminscspal sep-
arate stor:;i >ewei system^
(ii i Tiu- Director may either issue i'ne.
system-wide permit covering all dis
i.-harges from municipal separate storm
sewers within a large or medium mu-
nicipal si i.n'rn sewer system or issue
distinct tm-rmits for appropriate cat-
egories of discharges within a large or
medium municipal separate storm
sewer system including, but, not lim-
ited to: all discharges owned or oper-
ated by the same municipality: located
within the same jurisdiction: all dis-
charges within a system that discharge
to the same watershed: discharges
within a system that are simila,; in na-
ture; or for individual discharges from
municipal separate storm sewers with-
in the system.
(iii) The operator of a discharge from
a municipal separate storm sewer
which is part of a large or medium mu-
nicipal separate storm sewer system
must eithei:
173
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§122.26
40 CFR Ch. I (7-1-04 Edition)
(A) Participate in a permit applica-
tion (to be a permittee or a co-per-
mittee) with one or more other opera-
tors of discharges from the large or me-
dium 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 applica-
tion which only covers discharges from
the municipal separate storm sewers
for which the operator is responsible;
or
(C) A regional authority may be re-
sponsible for submitting a permit ap-
plication under the following guide-
lines:
(7) The regional authority together
with co-applicants shall have authority
over a storm water management pro-
gram that is in existence, or shall be in
existence at the time part 1 of the ap-
plication is due:
12! The permit, applicant or co-appli-
cants shall establish their ability to
make a timely submission of part 1 and
part 2 of the municipal application;
(J) Bach of the operators of municipal
separate storm sewers within the sys-
tems described in paragraphs (b)<4) (i).
lii), and (iii) or (b)(7> (i). Co-permittees need only comply
with permit conditions relating to dis-
charges from the municipal separate
storm sewers for which they are opera-
tors.
(4) Discharges through large and me-
dium municipal separate atorm sewer sys-
tems. In addition to meeting the re-
quirements of paragraph (c) of this sec-
tion, an operator of a storm water dis-
charge associated with industrial ac-
tivity which discharges through a large
or medium municipal separate storm
sewer system shall submit, to the oper-
ator of the municipal separate storm
sewer system receiving the discharge
no later than May 15, 1991. or 180 days
prior t-o commencing such discharge:
the name of the facility: a contact per-
son and phone number: the location of
the discharge: a description, including
Standard Industrial Classification.
which best reflects the principal prod-
ucts or services provided by each facil-
ity; and any existing NPDES permit
number.
(01 Other municipal separate storm sew-
ers. The Director may issue permits for
municipal separate storm sewers that
are designated under paragraph
(a if lii V) of this section on a system-
wide basis, jurisdiction-wide basis, wa-
tershed basis or other appropriate
basis, or may issue permits for indi-
vidual discharges.
(6) Non-municipal separate storm sew-
ers. For storm water discharges associ-
ated with industrial activity from
point- sources which discharge through
a non-municipal or non-publicly owned
separate storm sewer system, the Di-
rector, in his discretion, may issue: a
single NPDES permit, with each dis-
charger a co-permittee to a permit
issued to the operator of the portion of
the system that discharges into waters
of the United States: or. individual per-
mits to each discharger of storm water
associated with industrial activity
through the non-municipal conveyance
system.
(is All storm water discharges associ-
ated with industrial activity that dis-
charge through a storm water dis-
charge 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
174
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Environmental Protection Agency
§122.26
the United States, with each dis-
charger to the non-municipal convey-
ance a co-permittee to that permit.
(ii) Where there is more than one op-
erator of a single system of such con-
veyances, all operators of storm water
discharges associated with industrial
activity must submit applications,
(iii! Any permit covering1 more than
one operator shall identify the effluent
limitations, or other permit condi-
tions, if any, that apply to each oper-
ator.
(7) Combined sewer systems. Convey
ances that discharge storm water run-
off combined with municipal sewage
are point sources that must obtain
NPDBS permits in accordance with the
procedures of §122.21 and are not sub-
ject to the provisions of this section.
(8) Whether a discharge from a mu-
nicipal separate storm sewer is or is
not subject to regulation under this
section shall have no bearing on wheth-
er the owner or operator of the dis-
charge is eligible for funding under
title II. title III or title VI of the Clean
Water Act. See 40 CFR part 35. subpart
I. appendix A(b)H.2.j.
(9) The discharge is a storm water
discharge associated with small con-
struction activity pursuant to para-
graph (b)(15) of this section;
(C) The Director, or in States with
approved NPDES programs either the
Director or the EPA Regional Adminis-
trator, 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 Adminis-
trator, determines that the discharge.
or category of discharges within a geo-
graphic area, contributes to a violation
of a water quality standard or is a sig-
nificant contributor of pollutants to
waters of the United States.
(ii) Operators of small MS4s des-
ignated pursuant to paragraphs
-------
§122.26
40 CFR Ch, I (7-1-04 Edition)
municipal separate storm sewer system
due to the interrelationship between
the discharges of the designated storm
sewer and the discharges from munic-
ipal separate storm sewers described
under paragraph (b)<4) (i) or (ii) of this
section. In making- this determination
the Director may consider the fol-
lowing factors:
(A) Physical interconnections be-
tween 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 ib)(4)(i) of this
section;
(C) The quantity and nature of pol-
lutants discharged to waters of the
United States:
(D) The nature of the receiving wa-
ters: and
(B) Other relevant factors: or
(iv) The Director may, upon petition.
designate as a large municipal separate
storm sewer system, municipal sepa-
rate storm sewers located within the
boundaries of a region defined by a
storm water management regional au-
thority based on a jurisdictional. wa-
tershed, or other appropriate basis that
includes one or more of the systems de-
scribed in paragraph (b)(4) (i). (ii). (iii)
of this section.
(5) Major municipal separate storm
sewer outfall (or "major outfall") means
a municipal separate storm sewer out-
fall that discharges from a single pipe
with an inside diameter of 36 inches or
more or its equivalent (discharge from
a single conveyance other than circular
pipe which is associated with a drain-
age area of more than 50 acres); or for
municipal separate storm sewers that
receive storm water from lands zoned
for industrial activity (based on com-
prehensive zoning plans or the equiva-
lent), an outfall that discharges from a
single pipe with an inside diameter of
12 inches or more or from its equiva-
lent (discharge from other than a cir-
cular pipe associated with a drainage
area of 2 acres or more).
(6) Major outfall means a major mu-
nicipal separate storm sewer outfall.
(7) Medium municipal separate storm
sewer system means all municipal sepa-
rate storm sewers that are either:
(i> Located in an incorporated place
with a population of 100.000 or more but
less than 250.000. as determined by the
1990 Decennial Census by the Bureau of
the Census (Appendix G of this parti; or
(iis Located in the counties listed in
appendix I. except municipal separate
storm sewers that are located in the in-
corporated places, townships or towns
within such counties; or
(iii) Owned or operated by a munici-
pality other than those described in
paragraph
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Environmental Protection Agency
§122,26
body (created by or pursuant to .State
law) having jurisdiction over disposal
of sewage, industrial wastes, storm
water, or other wastes, including spe-
cial 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:
Designed or used for collecting or
conveying' storm water:
(iii) Which is not a combined sewer:
and
iivi Which is not part of a Publicly
Owned Treatment Works (POTW) as de-
fined at 40 GFR 122.2.
(9) Outfall means a p/rinl source as de-
fined by 40 CFR 122.2 at the point where
a municipal separate storm sewer dis-
charges to waters of the United States
and does not include open conveyances
connecting two municipal separate
storm sewers, or pipes, tunnels or other
conveyances which connect segments
of the same stream or other waters of
the United States and are used to con-
vey waters of the United States.
(10) Overburden means any material
of any nature, consolidated or tmcon-
solidated, that overlies a mineral de-
posit, excluding topsoil or similar nat-
urally-occurring surface materials that
are not disturbed by mining oper-
ations.
(11) Runoff coefficient means the frac-
tion of total rainfall that will appear
at a conveyance as runoff.
(12) Significant materials includes, but
is not limited to: raw materials: fuels;
materials such as solvents, detergents,
and plastic pellets: finished materials
such as metallic products: raw mate-
rials used in food processing or produc-
tion: hazardous substances designated
under section 101(14) of CERCLA: any
chemical the facility is required to re-
port pursuant to section 313 of title III
of SARA: fertilizers: pesticides: and
waste products such as ashes, slag and
sludge that have the potential to be re-
leased with storm water discharges.
(13) Storm water means storm water
runoff, snow melt runoff, and surface
runoff and drainage.
(14) Storm water discharge associated
with industrial activity means the dis-
charge fiom any conveyance that- is
used for collecting and conveying
storm water and that is directly re-
lated to manufacturing', processing' or
raw materials storage areas at an in-
dustrial plant, The term does not in-
clude discharges from facilities or ac-
tivities excluded from the NPDES pro-
gram uiidr-r this part 122. For the cat-
egories 01 industries identified in this
section. Use term includes, but is not
limited in. storm water discharges
from industrial plant yards: immediate
access roads and rail lines used or trav-
eled by carriers of raw materials, man-
ufactured products, waste material, or
iiy-producis used or created by the fa-
cility; material handling sites: refuse
sites: site?- used for the application or
disposal ol process waste waters (as de-
fined at part 401 of this chapter): sites
used for the storage and maintenance
of material handling equipment; sites
used for residual treatment, storage, or
disposal: shipping and receiving areas:
manufacturing buildings; storage areas
i including tank farms) for raw mate-
rials. and intermediate and final prod-
ucts; and areas where industrial activ-
ity has taken place in the past and sig-
nificant materials remain and are ex-
posed to storm water. For the purposes
of this paragraph, material handling
activities include storage, loading and
unloading, transportation, or convey-
ance of any raw material, intermediate
product, final product, by-product or
waste product. The term excludes areas
located on plant lands separate from
the plant's industrial activities, such
as office buildings and accompanying
parking lots as long as the drainage
from the excluded areas is not mixed
with storm water drained from the
above described areas. Industrial facili-
ties (including industrial facilities that
are federally. State, or municipally
owned or operated that meet the de-
scription of the facilities listed in para-
graphs (b)il4Xi) through
-------
§122.26
40 CFR Ch. I (7-1-04 Edition)
source performance standards, or toxic
pollutant effluent standards under 40
CPR subchapter N (except facilities
with toxic pollutant effluent standards
which are exempted under category (xi)
in paragraph (b)(14) of this section);
(ii) Facilities classified as Standard
Industrial Classifications 24 (except
2434), 26 (except 265 and 267). 28 (except
283). 29, 311. 32 (except 323), 33. 3441. 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 rec-
lamation area under 40 CFR 434.IK 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 applica-
ble State or Federal reclamation re-
quirements after December 17, 1990)
and oil and gas exploration, produc-
tion, processing, or treatment oper-
ations, 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 ac-
tively mined, but which have an identi-
fiable owner/operator; inactive mining
sites do not include sites where mining
claims are being maintained prior to
disturbances associated with the ex-
traction, beneficiation, or processing of
mined materials, nor sites where min-
imal activities are undertaken for the
sole purpose of maintaining a mining
claim);
!iv) Hazardous waste treatment, stor-
age, 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 facili-
ties described under this subsection)
including those that are subject to reg-
ulation under subtitle D of RCRA:
(vi) Facilities involved in the recy-
cling of materials, including metal
scrapyards, battery reclaimers, salvage
yards, and automobile junkyards, in-
cluding but limited to those classified
as Standard Industrial Classification
5015 and 5093;
svii) Steam electric power generating
facilities, including coal handling sites;
(viii) Transportation facilities classi-
fied as Standard Industrial Classifica-
tions 40. 41, 42 (except 4221-25). 43. 44,
45, and 5171 which have vehicle mainte-
nance shops, equipment cleaning oper-
ations, or airport deicing operations.
Only those portions of the facility that
are either involved in vehicle mainte-
nance (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 indus-
trial activity:
(ix) Treatment works treating do-
mestic sewage or any other sewage
sludge or wastewater treatment device
or system, used in the storage treat-
ment, recycling, and reclamation of
municipal or domestic sewage, includ-
ing land dedicated to the disposal of
sewage sludge that are located within
the confines of the facility, with a de-
sign flow of 1.0 mgd or more, or re-
quired 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 com-
pliance with section 405 of the CWA:
(x) Construction activity including
clearing, grading and excavation, ex-
cept operations that result in the dis-
turbance 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 devel-
opment or sale if the larger common
plan will ultimately disturb five acres
or more:
cxi) Facilities under Standard Indus-
trial Classifications 20. 21, 22, 23, 2434.
25. 265. 267. 27, 283. 285. 30. 31 (except
311), 323. 34 (except 3441), 35. 36, 37 (ex-
cept 373), 38. 39, and 4221-25:
178
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Environmental Protection Agency
§122.26
(15) Storm water discharge associated
with small construction activity means
the discharge of storm water from:
(i) Construction activities including'
clearing1, 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 devel-
opment 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 Di-
rector may waive the otherwise appli-
cable requirements in a general permit
for a storm water discharge from con-
struction, activities that disturb less
than five acres where:
(A) The value of the rainfall erosivity
factor c'R" in the Revised Universal
Soil Loss Equation i is less than five
during the period of construction activ-
ity. The rainfall erosiviiy factor is de-
termined in accordance with Chapter 2
of Agriculture Handbook dumber 703.
Predicting Soil Krosi:>» by Water: A Guide
to Conservation Manning With the Re-
I'iscd 1,'nii'ersal Soil Loss Equation
(RUSLE). pages 21 64. dated January
1997. The Director of She Federal Reg-
ister approves this incorporation by
reference in accordance with 5 U.S.C
552(a) and 1 CFR part 51. Copies may be
obtained from KPA's Water Resource
Center. Mail Code RC4100. 401 M St.
SW. Washington. DC 20460. A copy is
also available for inspection at the U.S.
EPA Water Docket . 401 M Street SW.
Washington. DC 20460. or at the Na-
tional Archives and Records Adminis-
tration (NARA). For information on
the availability of this material at
NARA. call 202 741-6030. or go to: http:
w u: tc.arch i >:es.go r. federal register
code of federal regulations-'
tbr locations.html. An operator must
certify to the Director that the con-
struction activity will take place dur-
ing a period when the value of the rain-
fall erosivity factor is less than five: or
(B) Storm water controls are not-
needed based on a "total maximum
daily load" (TMDL) approved or estab-
lished by KPA that addresses the pol-
lutanUsi of concern or. for non-im-
paired waters that do not require
TMDLs. mi equivalent analysis that de-
termines allocations for small con-
struction sites for the pollutant(s) of
• •oncern or that determines that such
allocation.-- air not needed to protect
wafer quality based on consideration of
existing iiv-stream concent-rations, ex-
pected growth in pollutant contribu-
tions from all sources, and a margin of
safety. For the purpose of this para-
graph, the poliutant(s) of concern in-
clude sediment or a parameter that ad-
dresses sediment isuch as total sus-
pended sii!ids. turbidity or siltation)
and any ol her pollutant that has been
identified as A cause of impairment of
any water body that will receive a dis-
charge from the construction activity.
The operator must certify to the Direc-
tor that the construction activity will
take place and storm water discharges
will occur, within the drainage area ad-
dressed 1>\ the TMDL or equivalent
analysis.
iiii Any other construction activity
designated by the Director, or in
States with approved NPDES programs
either the Director or the EPA Re-
gional Administrator, based on the po-
tential for contribution to a violation
of a water quality standard or for sig-
nificant contribution of pollutants to
waters of the United States.
EXHIBIT 1 TO §122.26(B)(15)—SUMMARY OF COVERAGE of "STOHM WATER DISCHARGES
ASSOCIATED WITH SMALL CONSTRUCTION ACTIVITY" UNDER THE NPDES STORM WATER PROGRAM
Automatic Designation:
Nationwide Coverage.
Required • Construction, activities that result in a land disturbance of equal to or
greater than one acre and less than five acres.
• Construction activities disturbing less than one acre if part of a larger
common plan of development ot sale with a planned disturbance of
equal to or greater than one acre and less than five acres, (see
§122.26(b)(15)(i>.)
179
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§122.26
40 CFR Ch. I (7-1-04 Edition)
EXHIBIT 1 TO §122.26(s)(15) SUMMARY OF COVERAGE OF "STORM WATER DISCHARGES ASSOCI-
ATED WITH SMALL CONSTRUCTION ACTIVITY" UNDER THE NPDES STORM WATER PROGRAM—
Continued
Potential Designation: Optional Eval-
uation and Designation by the
NPDES Permitting Authority or
EPA Regional Administrator.
Potential Waiver: Waiver from Re-
quirements as Determined by the
NPDES Permitting Authority..
» Construction activities that result in a land disturbance of less than
one acre based on the potential for contribution to a violation of a
water quality standard or for significant contribution of pollutants.
(see§122.26(b)(15)(il).)
Any automatically designated construction activity where the operator
certifies: (1) A rainfall erosivity factor of less than five, or (2) That the
activity will occur within an area where controls are not needed
based on a TMDL or, for non-impaired waters that do not require a
TMDL, an equivalent analysis for the pollutart(s) of concern, (see
§122.26(b)(15){i).)
{16) Small municipal separate storm
sewer system means all separate storm
sewers that are:
(i) Owned or operated by the United
States, a State, city. town, borough.
county, parish, district, association, or
other public body (created by or pursu-
ant 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 con-
trol district or drainage district, or
similar entity, or an Indian tribe or an
authorized Indian tribal organization.
or a designated and approved manage-
ment agency under section 208 of the
CWA that discharges to waters of the
United States.
(ii) Not defined as "large" or "me-
dium" municipal separate storm sewer
systems pursuant to paragraphs MS4 means a municipal separate
storm sewer system.
(20» Uncontrolled sanitary landfill
means a landill or open dump, whether
in operation or closed, that does not
meet the requirements for runon or
runoff controls established pursuant to
subtitle D of the Solid Waste Disposal
Act.
to Application requirements for storm
water discharges associated with indus-
trial activity and storm water discharges
associated with small construction activ-
ity—(1) Individual application. Dis-
chargers of storm water associated
with industrial activity and with small
construction activity are required to
apply for an individual permit or seek
coverage under a promulgated storm
water general permit. Facilities that
are required to obtain an individual
permit or any dischage of storm water
which the Director is evaluating for
designation (see §124.52tc) of this chap-
ter) under paragraph (a)(l)(v) of this
section and is not a municipal storm
sewer, shall submit an NPDES applica-
tion in accordance with the require-
ments of §122.21 as modified and sup-
plemented by the provisions of this
paragraph.
(i) Except as provided in §122.26(0(1)
fii)
-------
Environmental Protection Agency
§122.26
building's within the drainage area of
each storm water outfall, each past, or
present area used for outdoor storage
or disposal of significant materials.
each existing' structural control meas-
ure to reduce pollutants in storm water
runoff, materials loading and access
areas, areas where pesticides, herbi-
cides, soil conditioners and fertilizers
are applied, each of its hazardous waste
treatment, storage or disposal facili-
ties (including each area not. required
to have a RCRA permit which is used
for accumulating hazardous waste
under 40 CFR 262.3-11; each well -.\here
fluids from the facility are injected un
dersTound: springs, and other surface
water bodies which receive storm water
discharges from the lacility.
iB' An "sinuate of the area of iiiipt-r-
vious surfaces (including paved areas
and building roofs' and the total area
drained by each out-full (within a mile
radius of the facility! and .-i nanv.live
descript-ion of the following: *i~nifi-
(.•ant. materials that in the ; hree y-.-ars
prior t.f; the suhmittal of this app'.iea-
fion have been treated stored or dis-
posed in a manner to allow exposure to
storm water: method of treatment.
storage or disposal of such materials:
materials management practice- em-
ployed, in the three years prior to the
submittal of this application, to mini-
mize contact by these materials with
storm water runoff: materials loading1
and access areas: ;.he location, manner
and frequency in which pesticides her-
bicides, soil conditioners and fertilizers
are applied: the location and a descrip-
tion of existing1 structural and non-
structural control measures to r<'- A certification that all outfalls
that should contain storm water dis-
charges associated with industrial ac-
tivity have been tested or evaluated for
the presence of non-storm water dis-
charges 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 ol this ap-
plication:
(K) Quantitative data based on sam-
ples collected during storm events and
• ollected in accordance with §122.21 of
this part from all outfalls eonia.ining a
storm water discharge associated with
industrial .u-ti-, ity for she follow, in.g pa
rameters:
<:./' An.\ pollutant limited in ;tu efflu
-•nt guideline to which ; h r facility is
- llbject:
(_'i Any pollutant listed in the facili-
:v's NPDKS pel-mil for It-s process
wastewat.er (if the facility is operating
under an existing NPDES permit;;
ij) Oil and Crease. pH. BO1):'. COD.
TrtS. totai phosphorus, ratal Kleklah!
nitrogen, and .titrate plus nitrite nil ro-
:i e n:
\-h Any informal, ion on tin- stincliarue
required uudt-s
. vil):
i.-ii Flow measurements or t-st imates
>:f ! he fUHA i-atc. and the total amount
of disc-has ;;c ror the storm eventis)
sampled, and the met.hod of flow meas-
urement or estimation: and
(Hi The date and duration (in hours)
of the storm evenus* sampled, rainfall
measurements or estimat.es of the
storm event -.in inches i which gen-
erated the sampled runoff and the du-
ration between the storm event sam-
pled and i he end of the previous meas-
urable (greater than O.i inch rainfall)
storm event tin hours);
(F) Operators of a discharge which is
composed entirely of storm water are
r-xempt from the requirements oi
§122.21 it;-1(2). (gx3). igX-lK (g)(5i.
ig)(7)(iii). >y. tgnTnvi. and
:g)(7)( viii i: and
(G( Operators of new sources or new-
discharges tas defined in §122.2 of this
parti which are composed in part or en-
tirely of storm water must include es-
timates for the pollutants or param-
eters listed in paragraph (c)(l)d)(Es) of
this section instead of actual sampling
181
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§122.26
40CFRCh. I (7-1-04 Edition)
data, along1 with the source of each es-
timate. Operators of new sources or
new discharges composed in part or en-
tirely of storm water must provide
quantitative data for the parameters
listed in paragraph (cKlKiuEi of this
section within two years after com-
mencement of discharge, unless such
data has already been reported under
the monitoring requirements of the
NPDES permit for the discharge. Oper-
ators of a new source or new discharge
which is composed entirely of storm
water are exempt from the require-
ments of §122.21 (k)(3)(ii). (k)(3)(iii).
and (k)(5).
(ii) An operator of an existing or new
storm water discharge that is associ-
ated with industrial activity solely
under paragraph (b)(14)(x) of this sec-
tion or is associated with small con-
struction activity solely under para-
graph (b)(15) of this section, is exempt
from the requirements of §122.21(g) and
paragraph (c)(l)(i) of this section. Such
operator shall provide a narrative de-
scription of:
(A) The location (including a map)
and the nature of the construction ac-
tivity;
(B) The total area of the site and the
area of the site that is expected to un-
dergo 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 re-
quirements;
(D) Proposed measures to control pol-
lutants in storm water discharges that
will occur after construction oper-
ations have been completed, including
a brief description of applicable State
or local erosion and sediment control
requirements:
(B) An estimate of the runoff coeffi-
cient of the site and the increase in im-
pervious 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 explo-
ration, production. processing. or
treatment operation, or transmission
facility is not required to submit a per-
mit application in accordance with
paragraph (c«l)(i> of this section, un-
less the facility:
(A) Has had a discharge of storm
water resulting in the discharge of a
importable quantity for which notifica-
tion is or was required pursuant to 40
CFR 117.21 or 40 CFR 302.6 at anytime
since November 16. 1987: or
(B i Has had a discharge of storm
water resulting in the discharge of a
importable quantity for which notifica-
tion 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 appli-
cation unless the discharge has come
into contact with, any overburden, raw
material, intermediate products, fin-
ished product, byproduct or waste
products located on the site of such op-
erations.
(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 fa-
cility subject to paragraph (c)(l)(ii) of
this section to comply with paragraph
(c x 1)(i) of this section.
(2) [.Reserved]
(d) Application requirements for large
and medium municipal separata storm
newer discharges. The operator of a dis-
charge from a large or medium munic-
ipal separate storm sewer or a munic-
ipal separate storm sewer that is des-
ignated by the Director under para-
graph (a)(l)(v) of this section, may sub-
mit a jurisdiction-wide or system-wide
permit, application. Where more than
one public entity owns or operates a
municipal separate storm sewer within
a geographic area (including adjacent
or interconnected municipal separate
storm sewer systems), such operators
may be a coapplicant to the same ap-
plication. Permit applications for dis-
charges from large and medium munic-
ipal storm sewers or municipal storm
182
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Environmental Protection Agency
§122.26
sewers designated under paragraph
(aXlHV) of this section shall include:
(1) Purl 1. Part 1 of the application
shall consist of:
of the CWA that is not ex-
pected to meet water quality standards
or water quality goals:
(3) Listed in State Nonpoint Source
Assessments required by section 319ca>
of the CWA that, without additional
action to control nonpoint sources of
pollution, cannot reasonably be ex-
pected to attain or maintain water
quality standards due to storm sewers.
construction, highway maintenance
and runoff from municipal landfills and
municipal sludge adding significant
pollution (or contributing to a viola-
tion of water quality standards!;
183
203-159 D-7
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§122.26
40 CFR Ch. I (7-1-04 Edition)
(4) Identified and classified according
to eutrophic condition of publicly
owned lakes listed in State reports re-
quired under section 314(a) of the CWA
(include the following: A description of
those publicly owned lakes for which
uses are known to be impaired: a de-
scription of procedures, processes and
methods to control the discharge of
pollutants from municipal separate
storm sewers into such lakes: and a de-
scription of methods and procedures to
restore the quality of such lakes):
(5) Areas of concern of the Great
Lakes identified by the International
Joint Commission:
(6) Designated estuaries under the
National Estuary Program under sec-
tion 320 of the CWA:
(7) Recognized by the applicant as
highly valued or sensitive waters:
(8) Defined by the State or U.S. Fish
and Wildlife Services's National Wet-
lands Inventory as wetlands: and
(9) Found to have pollutants in bot-
tom sediments, fish tissue or biosurvey
data.
(D) Field screening. Results of a field
screening analysis for illicit connec-
tions and illegal dumping for either se-
lected field screening points or major
outfalls covered in the permit applica-
tion. At a minimum, a screening anal-
ysis shall include a narrative descrip-
tion, for either each field screening
point or major outfall, of visual obser-
vations made during dry weather peri-
ods. If any flow is observed, two grab
samples shall be collected during- a 24
hour period with a minimum period of
four hours between samples. For all
such samples, a narrative description
of the color, odor, turbidity, the pres-
ence of an oil sheen or surface scum as
well as any other relevant observations
regarding the potential presence of
non-storm water discharges or illegal
dumping shall be provided. In addition.
a narrative description of the results of
a field analysis using suitable methods
to estimate pH. total chlorine, total
copper, total phenol, and detergents (or
surfactants) shall be provided along-
with a description of the flow rate.
Where the field analysis does not in-
volve analytical methods approved
under 40 CFR part 136. the applicant
shall provide a description of the meth-
od used including the name of the man-
ufacturer of the test method along
with the range and accuracy of the
test. Field screening- points shall be ei-
ther major outfalls or other outfall
points (or any other point of access
such as manholes) randomly located
throughout the storm sewer system by
placing a grid over a drainage system
map and identifying those cells of the
grid which contain a segment of the
storm sewer system or major outfall.
The field screening points shall be es-
tablished using the following' guide-
lines and criteria:
(/) A grid system consisting of per-
pendicular north-south and east-west
lines spaced ' •, mile apart shall be
overlayed on a map of the municipal
storm sewer system, creating a series
of cells.
(2) All cells that contain a segment of
the storm sewer system shall be identi-
fied; one field screening point shall be
select.ed in each cell; major outfalls
may be used as field screening points:
(j'l Field screening points should be
located downstream of any sources of
suspected illegal or illicit activity:
(-/) Field screening points shall be lo-
cated to the degree practicable at the
farthest manhole or other accessible
location downstream in the system.
within each cell; however, safety of
personnel and accessibility of the loca-
tion should be considered in making
this determination:
(5> Hydrological conditions: total
drainage area of the site: population
density of the site: traffic density: age
of the structures or buildings in the
area: history of the area: and land use
types:
(6') For medium municipal separate
storm sewer systems, no more than 250
cells need to have identified field
screening points: in large municipal
separate storm sewer systems, no more
than 500 cells need to have identified
field screening points: cells established
by the grid that contain no storm
sewer segments will be eliminated from
consideration: if fewer than 250 cells in
medium municipal sewers are created.
and fewer than 500 in large systems are
created by the overlay on the munic-
ipal sewer map. then all those cells
which contain a segment of the sewer
184
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Environmental Protection Agency
§122.26
system shall be subject to field screen-
ing (unless access to the separate
storm sewer system is impossible): and
(7) Large or medium municipal sepa-
rate storm sewer systems which are
unable to utilize the procedures de-
scribed in paragraphs (dXDuvxD) d)
through (6) of this section, because a
sufficiently detailed map of the sepa-
rate storm sewer systems is unavail-
able, shall field screen no more than
500 or 250 major outfalls respectively
(or all major outfalls in the system, if
less); in such circumstances, the appli-
cant shall establish a grid system con-
sisting of north-south and east-west
lines spaced 1A mile apart as an overlay
to the boundaries of the municipal
storm sewer system, thereby creating a
series of cells: the applicant will then
select major outfalls in as many cells
as possible until at least 500 major out-
falls (large municipalities) or 250 major
outfalls (medium municipalities) are
selected; a field screening analysis
shall be undertaken at these major
outfalls.
f'E) Characterization plan, Information
and a proposed program to meet the re-
quirements of paragraph (d)(2)fiii) of
this section. Such description shall in-
clude: the location of outfalls or field
screening points appropriate for rep-
resentative data collection under para-
graph (d)(2)(iii)(A) of this section, a de-
scription of why the outfall or field
screening point is representative, the
seasons during which sampling is in-
tended, a description of the sampling
eciaipment. The proposed location of
outfalls or field screening points for
such sampling should reflect water
quality concerns (see paragraph
(dHlMiVXC) of this section) to the ex-
tent practicable.
(v) Management programs. (A) A de-
scription of the existing management
programs to control pollutants from
the municipal separate storm sewer
system. The description shall provide
information on existing structural and
source controls, including operation
and maintenance measures for struc-
tural controls, that are currently being
implemented. Sucli controls may in-
clude, but are not limited to: Proce-
dures to control pollution resulting
from construction activities: floodplain
management controls: wetland protec-
tion measures: best management prac-
tices for new subdivisions: and emer-
gency spill response programs. The de-
scription may address controls estab-
lished under State law as well as local
requirements.
(B) A description of the existing pro-
gram to identify illicit connections to
the municipal storm sewer system. The
description should include inspection
procedures and methods for detecting
and preventing illicit discharges, and
describe areas where this program has
been implemented.
(vi) Fiscal resources. (A) A description
of the financial resources currently
available to the municipality to com-
plete pail 2 of the permit application.
A description of the municipality's
budget for existing storm water pro-
grams, including an overview of the
municipality's financial resources and
budget, including1 overall indebtedness
and assets, and sources of funds for
storm water programs.
(2) Part 2. Part 2 of the application
shall consist of:
(i) Adequalt', legal authority. A dem-
onstration that the applicant can oper-
ate pursuant to legal authority estab-
lished by statute, ordinance or series of
contracts which authorizes or enables
the applicant at a minimum to:
(A) Control through ordinance, per-
mit, 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 ac-
tivity;
(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 interapency
agreements among coapplicants the
contribution of pollutants from one
portion of the municipal system to an-
other portion of the municipal system:
(E) Require compliance with condi-
tions in ordinances, permits, contracts
or orders; and
185
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§122.26
40 CFR Ch. I (7-1-04 Edition)
(F) Carry out all inspection, surveil-
lance and monitoring procedures nec-
essary to determine compliance and
noncomplianee with permit conditions
including" the prohibition on illicit dis-
charges to the municipal separate
storm sewer.
fii) Source identification. The location
of any major outfall that discharges to
waters of the United States that was
not reported under paragraph
(d)(lMiii)(B)U) of this section. Provide
an inventory, organized by watershed
of the name and address, and a descrip-
tion (such as SIC codes) which best re-
flects the principal products or services
provided by each facility which may
discharge, to the municipal separate
storm sewer, storm water associated
with industrial activity:
(ill) Characterization data, When
"quantitative data" for a pollutant are
required under paragraph
fd)(2)(iii)(A>(3) of this section, the ap-
plicant must collect a sample of efflu-
ent in accordance with 40 CFR
122.21(g)(7) and analyze it for the pol-
lutant in accordance with analytical
methods approved under part 138 of
this chapter. When no analytical meth-
od is approved the applicant may use
any suitable method but must provide
a description of the method. The appli-
cant must provide information charac-
terizing- the quality and quantity of
discharges covered in the permit appli-
cation, including:
(A) Quantitative data from represent-
ative outfalls designated by the Direc-
tor (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, resi-
dential and industrial land use activi-
ties of the drainage area contributing
to the system or. where there are less
than five outfalls covered in the appli-
cation, the Director shall designate all
outfalls) developed as follows:
(J) For each outfall or field screening
point designated under this subpara-
graph. samples shall be collected of
storm water discharges from three
storm events occurring at least one
month apart in accordance with the re-
quirements at §122.21(g)(7) (the Direc-
tor may allow exemptions to sampling
three storm events when climatic con-
ditions create good cause for such ex-
emptions):
(2) A narrative description shall be
provided of the date and duration of
the storm event(s) sampled, rainfall es-
timates of the storm event which gen-
erated the sampled discharge and the
duration between the storm event sam-
pled and the end of the previous meas-
urable (greater than 0.1 inch rainfall)
storm event:
(3t For samples collected and de-
scribed under paragraphs (d)(2)(iii)
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Environmental Protection Agency
§122,26
and concentrations, including any
modelling, data analysis, and calcula-
tion methods;
(C> A proposed schedule to provide es-
timates for each major outfall identi-
fied in either paragraph (d)(2)(ii) or
(d)(l)(iii)(BW) of this section of the
seasonal pollutant load and of the
event mean concentration of a rep-
resentative storm for any constituent
detected in any sample required under
paragraph (d)(2)siii)(A) of this section:
and
(D) A proposed monitoring program
for representative data collection for
the term of the permit that describes
the location of outfalls or field screen-
ing: points to be sampled (or the loca-
tion of instream stations), why the lo-
cation is representative, the frequency
of sampling, parameters to be sampled.
and a description of sampling1 equip-
ment,
(iv) Proposed management program. A
proposed management program covers
the duration of the permit. It shall in-
clude a comprehensive planning proc-
ess which involves public participation
and where necessary intergovern-
mental coordination, to reduce the dis-
charge of pollutants to the maximum
extent practicable using management
practices, control techniques and sys-
tem, design and engineering methods.
and such other provisions which are ap-
propriate. The program shall also in-
clude a description of staff and equip-
ment available to implement tint1 pro-
gram. Separate proposed programs may
be submitted by each coapplicant. Pro-
posed programs may impose controls
on a systemwide basis, a watershed
basis, a jurisdiction basis, or on indi-
vidual outfalls. Proposed programs will
be considered by the Director when de-
veloping permit conditions to reduce
pollutants in discharges to the max-
imum extent practicable. Proposed
management programs shall describe
priorities for implementing controls.
Such programs shall be based on:
(A) A description of structural and
source control measures to reduce pol-
lutants from runoff from commercial
and residential areas that are dis-
charged from the municipal storm
sewer system that are to be imple-
mented during the life of the permit.
accompanied with an estimate of the
expected reduction of pollutant loads
and a proposed schedule for imple-
menting such controls. At a minimum,
the description shall include:
(/) A description of maintenance ac-
tivities and a maintenance schedule for
structural controls to reduce pollut-
ants (including floatables) in dis-
charges from municipal separate storm
sewers:
(2) A description of planning proce-
dures including a comprehensive mas-
ter plan to develop, implement and en-
force controls to reduce the discharge
of pollutants from municipal separate
storm sewers which receive discharges
from areas of new development and sig-
nificant redevelopment. Such plan
shall address controls to reduce pollut-
ants in discharges from municipal sep-
arate storm sewers after construction
is completed. (Controls to reduce pol-
lutants in discharges from municipal
separate storm sewers containing con-
struction site runoff are addressed in
paragraph (d)(2xiv)(D) of this section:
(.?) A description of practices for op-
erating and maintaining public streets.
roads and highways and procedures for
reducing the impact on receiving wa-
ters of discharges from municipal
storm sewer systems, including pollut-
ants discharged as a result of deicing
activities:
(4) A description of procedures to as-
sure that flood management projects
assess the impacts on the water quality
of receiving water bodies and that ex-
isting structural flood control devices
have been evaluated to determine if
retrofitting the device to provide addi-
tional pollutant, removal from storm
water is feasible:
(5) A description of a program to
monitor pollutants in runoff from oper-
ating or closed municipal landfills or
other treatment, storage or disposal fa-
cilities for municipal waste, which
shall identify priorities and procedures
for inspections and establishing and
implementing control measures for
such discharges (this program can be
coordinated with the program devel-
oped under paragraph (d)(2)(iv)(C) of
this section): and
(6) A description of a program to re-
duce to the maximum extent prac-
ticable, pollutants in discharges from
187
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§122,26
40 CFR Ch. i (7-1-04 Edition)
municipal separate storm sewers asso-
ciated with the application of pes-
ticides, herbicides and fertilizer which
will include, as appropriate, controls
such as educational activities, permits.
certifications and other measures for
commercial applicators and distribu-
tors, and controls for application in
public right-of-ways and at municipal
facilities.
(B) A description of a program, in-
cluding a schedule, to detect and re-
move (or require the discharger to the
municipal separate storm sewer to ob-
tain a separate NPDBS permit for) il-
licit discharges and improper disposal
into the storm sewer. The proposed
program shall include:
(1) A description of a program, in-
cluding inspections, to implement and
enforce an ordinance, orders or similar
means to prevent illicit discharges to
the municipal separate storm sewer
system; this program description shall
address all types of illicit discharges.
however the following category of non-
storm water discharges or flows shall
be addressed where such discharges are
identified by the municipality as
sources of pollutants to waters of the
United States: water line flushing,
landscape irrigation, diverted stream
flows. rising ground waters.
uncontaminated ground water infiltra-
tion (as defined at 40 CFR 35.2005(20)) to
separate storm sewers,
uncontaminated pumped ground water.
discharges from potable water sources.
foundation drains, air conditioning
condensation, irrigation water, springs,
water from crawl space pumps, footing
drains, lawn watering, individual resi-
dential car washing, flows from
riparian habitats and wetlands.
dechlorinated swimming pool dis-
charges, and street wash water (pro-
gram descriptions shall address dis-
charges or flows from fire fighting only
where such discharges or flows are
identified as significant sources of pol-
lutants to waters of the United States);
(2) A description of procedures to
conduct on-going field screening activi-
ties during the life of the permit, in-
cluding areas or locations that will be
evaluated by such field screens;
(3) A description of procedures to be
followed to investigate portions of the
separate storm sewer system that.
based on the results of the field screen,
or other appropriate information, indi-
cate a reasonable potential of con-
taining illicit discharges or other
sources of non-storm water (such
procedures may include: sampling pro-
cedures for constituents such as fecal
coliform. fecal streptococcus,
surfactants (MBAS). residual chlorine.
fluorides and potassium: testing with
fluorometrie dyes; or conducting in
storm sewer inspections where safety
and other considerations allow. Such
description shall include the location
of storm sewers that have been identi-
fied for such evaluation):
(4} A description of procedures to pre-
vent, contain, and respond to spills
that may discharge into the municipal
separate storm sewer:
(5) A description of a program to pro-
mote, publicize, and facilitate public
reporting of the presence of illicit dis-
charges or water quality impacts asso-
ciated with discharges from municipal
separate storm sewers;
-------
Environmental Protection Agency
§122,26
term of the permit, including tie sub-
mission of quantitative data on the fol-
lowing constituents: any pollutants
limited in effluent guidelines
sutacategories. where applicable; any
pollutant listed in an existing NPDES
permit for a facility," oil and grease.
COD. pH. BOD,. TSS. total phosphorus.
total Kjeldahl nitrogen, nitrate plus ni-
trite nitrogen, and any information on
discharges required under §122,21(g'X?)
(vi) and (vii).
(D) A description of a program to im-
plement and maintain structural and
non-structural best management prac-
tices to reduce pollutants in storm
water runoff from construction sites to
the municipal storm sewer system.
which shall include:
(1} A description of procedures for
site planning which incorporate consid-
eration of potential water quality im-
pacts;
(2) A description of requirements for
nonstructural and structural best man-
agement practices;
(3) A description of procedures for
identifying priorities for inspecting
sites and enforcing control measures
which consider the nature of the con-
struction activity, topography, and the
characteristics of soils and receiving
water quality; and
(4) A description of appropriate edu-
cational and training measures for con-
struction site operators,
(v) Assessment of controls. Estimated
reductions in loadings of pollutants
from discharges of municipal storm
sewer constituents from municipal
storm sewer systems expected as the
result of the municipal storm water
quality management program. The as-
sessment shall also identify known im-
pacts of storm water controls on
ground water.
(vi) Fiscal analysis. For each fiscal
year to be covered by the permit, a. fis-
cal analysis of the necessary capital
and operation and maintenance ex-
penditures necessary to accomplish the
activities of the programs under para-
graphs (d)(2) (iii) and (iv) of this sec-
tion. Such analysis shall include a de-
scription of the source of funds that
are proposed to meet the necessary ex-
penditures, including legal restrictions
on the use of such funds.
(vii) Where more than one legal enti-
ty submits an application, the applica-
tion shall contain a description of the
roles and responsibilities of each legal
entity and procedures to ensure effec-
tive coordination.
(viii) Where requirements under
paragraph (d)UXivxE). id)(2)(ii).
tdx2)(iii)(B> and (d)(2)(iv) of this sec-
tion are not practicable or are not ap-
plicable, the Director may exclude any
operator of a discharge from a munic-
ipal separate storm sewer which is des-
ignated under paragraph (a)(l)(v>,
-------
§122.26
40 CFR Ch. I (7-1-04 Edition)
(i) Part 1. (A) Except as provided in
paragraph
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Environmental Protection Agency
§122.26
or tlie EPA Regional Administrator.
determines that the discharge contrib-
utes to a violation of a water quality
standard or is a significant contributor
of pollutants to waters of the United
States (see paragraphs (aid);;*- and
lb)(15)(ii) of this section):
(ii) A storm water discharge subject
to paragraph (cKlxv) of this section.
<6> Facilities with existing KPDES
permits for storm water discharges as-
sociated with industrial activity shall
maintain existing permits. Facilities
with permits for storm water dis-
charges associated with industrial ac-
tivity 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 en-
tirely of storm water under this sec-
tion in accordance with the following
schedule:
of this sec-
tion, the Director shall issue or deny
permits for storm water discharges as-
sociated with industrial activity no
later than May 17. 1994, or. for any such
municipality which fails to submit a
complete Part II group permit applica-
tion by May 17. 1993. one year after re-
ceipt of a complete permit application;
(ii) The Director shall issue or deny
permits for large municipal separate
storm sewer systems no later than No-
vember 16. 1993. or. for new sources or
existing sources which fail to submit a
complete permit application by No-
vember 16. 1992, one year after receipt
of a complete permit application;
(Hi) 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 com-
plete permit application by May 17.
1993. one year after receipt of a com-
plete permit application.
(8i For any storm water discharge as-
sociated with small construction activ-
ity identified in paragraph (b)(15Ki) of
this section, see §122.21(0(1). Dis-
charges from these sources, other than
discharges associated with small con-
struction activity at oil and gas explo-
ration, production, processing, and
treatment operations or transmission
facilities, require permit authorization
by March 10. 2003. unless designated for
coverage before then. Discharges asso-
ciated with small construction activity
at such oil and gas sites require permit
authorization by March 10. 2005.
(9.) For any discharge from a regu-
lated small MS4, the permit applica-
tion made under §122.33 must be sub-
mitted to the Director by:
(i) March 10. 2003 if designated under
§122.32(a)(l) unless your MS4 serves a
jurisdiction with a population under
10.000 and the NPDES permitting au
thority has established a phasing
schedule under §123.35(d)(3> ssee
§122.33(0(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(0(2)).
(f) Petitions. (1) Any operator of a mu-
nicipal separate storm sewer system
may petition the Director to require a
separate NPDES permit (or a permit
issued under an approved NPDES State
program) for any discharge into the
municipal separate storm sewer sys-
tem.
(2) Any person may petition the Di-
rector 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 pol-
lutants to waters of the United States.
(3s The owner or operator of a munic-
ipal separate storm sewer system may
petition the Director to reduce the
Census estimates of the population
served by such separate system to ac-
count for storm water discharged to
combined sewers as defined by 40 CFR
191
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§122.26
40CFRCh. I (7-1-04 Edition)
35.2005(b)(ll) that is treated in a pub-
licly owned treatment works. In mu-
nicipalities in which combined sewers
are operated, the Census estimates of
population may be reduced propor-
tional to the fraction, based on esti-
mated lengths, of the length of com-
bined sewers over the sum of the length
of combined sewers and municipal sep-
arate storm sewers where an applicant
has submitted the NPDES permit num-
ber associated with each discharge
point and a map indicating' areas
served by combined sewers and the lo-
cation of any combined sewer overflow
discharge point.
(4) Any person may petition the Di-
rector for the designation of a large.
medium, or small municipal separate
storm sewer system as defined by para-
graph 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 excep-
tion of petitions to designate a small
MS4 in which case the Director shall
make a final determination on the pe-
tition within 180 days after its receipt.
(»•) Conditional exclusion for "no expo-
sure" of industrial activities and materials
to storm water. Discharges composed en-
tirely of storm water are not storm
water discharges associated with indus-
trial activity if there is "no exposure"
of industrial materials and activities
to rain. snow, snowmelt and or runoff.
and the discharger satisfies the condi-
tions in paragraphs (g)(l) through
of this section. "No exposure" means
that all industrial materials and ac-
tivities are protected by a storm resist-
ant shelter to prevent exposure to rain.
snow, snowmelt. and/or runoff. Indus-
trial materials or activities include.
but are not limited to. material han-
dling equipment or activities, indus-
trial machinery, raw materials, inter-
mediate products, by-products, final
products, or waste products. Material
handling activities include the storage.
loading and unloading, transportation.
or conveyance of any raw material, in-
termediate product, final product or
waste product.
(1) Qualification. To qualify for this
exclusion, the operator of the discharge
must:
(i) Provide a storm resistant shelter
to protect industrial materials and ac-
tivities from exposure to rain. snow.
snow melt, and runoff:
(ii) Complete and sign (according to
§122.32) a certification that there are
no discharges of storm water contami-
nated by exposure to industrial mate-
rials and activities from the entire fa-
cility, except as provided in paragraph
(g)(2) of this section:
(iii) Submit the signed certification
to the NPDES permitting authority
once every five years:
(ivi Allow the Director to inspect the
facility to determine compliance with
the "no exposure" conditions:
Allow the Director to make any
"no exposure" inspection reports avail-
able to the public upon request: and
(vii For facilities that discharge
through an MS4. upon request, submit
a copy of the certification of "no expo-
sure" to the MS4 operator, as well as
allow inspection and public reporting
by the MS4 operator.
<2> Industrial materials and activities
no! requiring storm resistant shelter. To
qualify for this exclusion, storm resist-
ant shelter is not required for:
(i) Drums, barrels, tanks, and similar
containers that are tightly sealed, pro-
vided those containers are not deterio-
rated and do not leak ("Sealed" means
banded or otherwise secured and with-
out operational taps or valves):
(ii) Adequately maintained vehicles
used in material handling; and
(iii) Final products, other than prod-
ucts that would be mobilized in storm
water discharge (e.g.. rock salt).
(3) Limitations, (i) Storm water dis-
charges from construction activities
identified in paragraphs (b)(14)(x) and
(b)(15) are not eligible for this condi-
tional exclusion.
(ii) This conditional exclusion from
the requirement for an NPDES permit
is available on a facility-wide basis
only, not for individual outfalls. If a fa-
cility has some discharges of storm
water that would otherwise be "no ex-
posure" discharges, individual permit
requirements should be adjusted ac-
cordingly.
(iii) If circumstances change and in-
dustrial materials or activities become
exposed to rain. snow, snow melt, and;
192
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Environmental Protection Agency
§122.26
or runoff, the conditions for this exclu-
sion no longer apply. In such cases, the
discharge becomes subject to enforce-
ment for un-permitted discharge. Any
conditionally exempt, discharger who
anticipates changes in circumstances
should apply for and obtain permit au-
thorization prior to the change of cir-
cumstances.
(iv) Notwithstanding the provisions
of this paragraph, the NPDES permit-
ting authority retains the authority to
require permit authorization (and deny
this exclusion) upon making a deter-
mination that the discharge causes.
has a reasonable potential to cause, or
contributes to an instream excursion
above an applicable water quality
standard, including designated uses.
(4) Certification. The no exposure cer-
tification must require the submission
of the following information, at a min-
imum, to aid the NPDES permitting
authority in determining if the facility
qualifies for the no exposure exclusion:
The legal name, address and phone
number of the discharger (see
§122.21 of this section. I un-
derstand that I am obligated to submit
a no exposure certification form once
every five years to the NPDES permit-
ting authority and. if requested, to the
operator of the local MS4 into which
this facility discharges (where applica-
ble). I understand that I must allow the
NPDES permitting authority, or M84
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 un-
derstand that I must obtain coverage
under an NPDES permit prior to any
point source discharge of storm water
from the facility. I certify under pen-
alty 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 sub-
mitted. Based upon my inquiry of the
person or persons who manage the sys-
tem, or those persons directly involved
in gathering the information, the infor-
mation submitted is to the best of my
193
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§122.27
40 CFR Ch. I (7-1-04 Edition)
knowledge and belief true, accurate
and complete. I am aware there are sig-
nificant penalties for submitting false
information, including the possibility
of fine and imprisonment for knowing
violations."
[55 FR 48063, Nov. 16. 1990. as amended at 56
FR 12100, Mar. 21, 1991: 56 FR 56554. Nov. 5,
1991; 57 FR 11412, Apr. 2. 1992: 57 FR 60447.
Dec. 18. 1992: 60 FR 17956, Apr. 7. 1995: 60 FR
19464, Apr. 18. 1995: 60 FR 40235. Aug. 1. 1995:
64 FR 68838. Dec. 8. 1999: 65 FR 30907. May 15.
2000; 68 FR 11329. Mar. 10. 2003: 69 FR 18803.
Apr. 9. 2004]
S 122.27 Silvicultural activities (appli-
cable to State NPDES programs, see
8 123.25).
(a) Permit requirement. Silvicultural
point sources, as defined in this sec-
tion, as point sources subject to the
NPDES permit program.
(b) Definitions. (1) Silvicultural point
source means any discernible, confined
and discrete conveyance related to
rock crushing, gravel washing, log
sorting, or log storage facilities which
are operated in connection with Sil-
vicultural activities and from which
pollutants are discharged into waters
of the United States. The term does
not include non-point source Silvicul-
tural activities such as nursery oper-
ations, site preparation, reforestation
and subsequent cultural treatment.
thinning, prescribed burning, pest and
fire control, harvesting operations, sur-
face drainage, or road construction and
maintenance from which there is nat-
ural runoff. However, some of these ac-
tivities (such as stream crossing for
roads) may involve point source dis-
charges of dredged or fill material
which may require a CWA section 404
permit (See 33 CPR 209.120 and part
233).
(2) Rock crushing and gravel was fling
facilities means facilities which process
crushed and broken stone, gravel, and
riprap (See 40 CPR part 436. subpart B.
including the effluent limitations
guidelines).
(3) Log sorting and log storage facilities
means facilities whose discharges re-
sult from the holding of unprocessed
wood, for example, logs or roundwood
with bark or after removal of bark held
in self-contained bodies of water (mill
ponds or log ponds) or stored on land
where water is applied intentionally on
the logs (wet decking). (See 40 CFR
part 429. subpart I. including the efflu-
ent limitations guidelines).
$ 122.28 General permits (applicable to
State NPDES programs, see
S 123.25).
(a) Coverage. The Director may issue
a general permit in accordance with
the following:
(1) Area. The general permit shall be
written to cover one or more categories
or subcategories of discharges or sludge
use or disposal practices or facilities
described in the permit under para-
graph ta)(2)(ii) of this section, except
those covered by individual permits.
within a geographic area. The area
should correspond to existing geo-
graphic or political boundaries such as:
(i) Designated planning areas under
sections 208 and 303 of CWA:
(ii) Sewer districts or sewer authori-
ties:
(iii) City, county, or State political
boundaries:
(ivi State highway systems:
(v) Standard metropolitan statistical
areas as defined by the Office of Man-
agement and Budget:
(vi) Urbanized areas as designated by
the Bureau of the Census according- to
criteria in 30 FR 15202 (May 1. 1974): or
(vii) Any other appropriate division
or combination of boundaries.
(2) Sources. The general permit may
be written to regulate one or more cat-
egories or subcategories of discharges
or sludge use or disposal practices or
facilities, within the area described in
paragraph (a)(l) of this section, where
the sources within a covered sub-
category of discharges are either:
(i) Storm water point sources: or (ii)
One or more categories or subcat-
egories 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" with-
in 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:
194
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Environmental Protection Agency
§122.28
(C) Require the same effluent limita-
tions, operating conditions, or stand-
ards for sewage sludge use or disposal:
(D) Require the same or similar mon-
itoring: and (E) In the opinion of the
Director, are more appropriately con-
trolled under a general permit than
under individual permits.
(3) Water quality-based limits. Where
sources within a specific category or
subcategory of dischargers are subject
to water quality-based limits imposed
pursuant to §122.44. the sources in that
specific category or sutacategory shall
be subject to the same water quality-
based effluent limitations.
(4) Other requirements, (i) The general
permit must clearly identify the appli-
cable conditions for each category or
subcategory of dischargers or treat-
ment works treating domestic sewage
covered by the permit.
(ii) The general permit may exclude
specified sources or areas from cov-
erage.
(b) Administration. <1) In general. Gen-
eral permits may be issued, modified.
revoked and reissued, or terminated in
accordance with applicable require-
ments of part 124 of this chapter or cor-
responding State regulations. Special
procedures for issuance are found at
§123.44 of this chapter for States.
(2) Authorization to discharge, or au-
thorization to engage in sludge use and
disposal practices, (i) Except as provided
in paragraphs (b)(2)(v) and (b)(2)(vi) of
this section, dischargers (or treatment
works treating domestic sewage) seek-
ing coverage under a general permit
shall submit to the Director a written
notice of intent to be covered by the
general permit. A discharger (or treat-
ment works treating domestic sewage)
who fails to submit a notice of intent
in accordance with the terms of the
permit is not authorized to discharge,
(or in the case of sludge disposal per-
mit, to engage in a sludge use or dis-
posal practice), under the terms of the
general permit unless the general per-
mit, in accordance with paragraph
(b)(2)(v) of this section, contains a pro-
vision that a notice of intent is not re-
quired or the Director notifies a dis-
charger (or treatment works treating
domestic sewage) that it is covered by
a general permit in accordance with
paragraph (b)(2)(vi) of this section. A
complete and timely, notice of intent
(NOT), to be covered in accordance with
general permit requirements, fulfills
the requirements for permit applica-
tions for purposes of §§122.6. 122.21 and
122.26.
(ii) The contents of the notice of in-
tent shall be specified in the general
permit and shall require the submis-
sion of information necessary for ade-
quate program implementation, includ-
ing at a minimum, the legal name and
address of the owner or operator, the
facility name and address, type of fa-
cility or discharges, and the receiving
stream(s). General permits for storm
water discharges associated with indus-
trial activity from inactive mining, in-
active oil and gas operations, or inac-
tive landfills occurring on Federal
lands where an operator cannot be
identified may contain alternative no-
tice of intent requirements. All notices
of intent shall be signed in accordance
with §122.22. Notices of intent for cov-
erage under a general permit for con-
centrated animal feeding operations
must include the information specified
in §122.21(iHI), including a topographic
map.
(iii) General permits shall specify the
deadlines for .-submitting notices of in-
tent 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 ac-
cordance 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 per-
mit 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 per-
mit, or upon receipt of notification of
inclusion by the Director. Coverage
may be terminated or revoked in ac-
cordance 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
195
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§122.28
40CFRCh. I (7-1-04 Edition)
industrial facilities, and storm water
discharges associated with industrial
activity, may. at the discretion of the
Director, be authorized to discharge
under a general permit without sub-
mitting a notice of intent where the
Director finds that a notice of intent
requirement would be inappropriate. In
making such a finding, the Director
shall consider: the type of discharge:
the expected nature of the discharge:
the potential for toxic and conven-
tional pollutants in the discharges: the
expected volume of the discharges:
other means of identifying discharges
covered by the permit; and the esti-
mated number of discharges to be cov-
ered by the permit. The Director shall
provide in the public notice of the gen-
eral permit the reasons for not requir-
ing a notice of intent.
(vi) The Director may notify a dis-
charger (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 in-
dividual permit under paragraph
(b)(3Xiii) of this section.
(3) Requiring an individual permit, (i)
The Director may require any dis-
charger authorized by a general permit
to apply for and obtain an individual
NPDES permit. Any interested person
may petition the Director to take ac-
tion under this paragraph. Cases where
an individual NPDES permit may be
required include the following:
(A) The discharger or "treatment
works treating domestic sewage" is not
in compliance with the conditions of
the general NPDES permit;
(B) A change has occurred in the
availability of demonstrated tech-
nology 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 applica-
ble to such point sources is approved;
(E) Circumstances have changed
since the time of the request to be cov-
ered so that the discharger is no longer
appropriately controlled under the gen-
eral permit, or either a temporary or
permanent reduction or elimination of
the authorized discharge is necessary:
(Fi Standards for sewage sludge use
or disposal have been promulgated for
the sludge use and disposal practice
covered by the general NPDES permit;
or
(G) The discharge*s) is a significant
contributor of pollutants. In making
this determination, the Director may
consider the following factors:
(1) The location of the discharge with
respect to waters of the United States;
(2) The size of the discharge:
(3) The quantity and nature of the
pollutants discharged to waters of the
United States: and
(4) Other relevant factors:
(ii) For EPA issued general permits
only, the Regional Administrator may
require any owner or operator author-
ized by a general permit to apply for an
individual NPDES permit as provided
in paragraph (b)(3Mi) of this section.
only if the owner or operator has been
notified in writing that a permit appli-
cation is required. This notice shall in-
clude a brief statement of the reasons
for this decision, an application form, a
statement setting a time for the owner
or operator to file the application, and
a statement that on the effective date
of the individual NPDES permit the
general permit as it applies to the indi-
vidual permittee shall automatically
terminate. The Director may grant ad-
ditional time upon request of the appli-
cant.
(iii) Any owner or operator author-
ized by a general permit may request
to be excluded from the coverage of the
general permit by applying for an indi-
vidual permit. The owner or operator
shall submit an application under
§122.21. with reasons supporting the re-
quest, to the Director no later than 90
days after the publication by EPA of
the general permit in the FEDERAL
REGISTER or the publication by a State
in accordance with applicable State
law. The request shall be processed
under part 124 or applicable State pro-
cedures. The request shall be granted
by issuing of any individual permit if
196
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Environmental Protection Agency
§122.29
the reasons cited by the owner or oper-
ator are adequate to support the re-
quest.
(iv) When an individual NPDES per-
mit is issued to an owner or operator'
otherwise subject to a general NPDES
permit, the applicability of the general
permit to the individual NPDES per-
mittee is automatically terminated on
the effective date of the individual per-
mit.
(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 per-
mit, the general permit shall apply to
the source.
(c) Offshore oil and gas facilities (Not-
applicable to State programs). (1) The
Regional Administrator shall, except
as provided below, issue general per-
mits covering discharges from offshore
oil and gas exploration and production
facilities within the Region's jurisdic-
tion. Where the offshore area includes
areas, such as areas of biological con-
cern, for which separate permit condi-
tions are required, the Regional Ad-
ministrator may issue separate general
permits, individual permits, or both.
The reason for separate general per-
mits or individual permits shall be set
forth in the appropriate fact sheets or
statements of basis. Any statement of
basis or fact sheet for a draft permit
shall include the Regional Administra-
tor's tentative determination as to
whether the permit applies to "new
sources." "new dischargers." or existing
sources and the reasons for this deter-
mination, and the Regional Adminis-
trator's proposals as to areas of bio-
logical concern subject either to sepa-
rate individual or general permits. For
Federally leased lands, the general per-
mit area should generally be no less ex-
tensive than the lease sale area defined
by the Department of the Interior.
(2) Any interested person, including
any prospective permittee, may peti-
tion the Regional Administrator to
issue a general permit. Unless the Re-
gional Administrator determines under
paragraph (c)(l) 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 envi-
ronmental 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 De-
partment 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)U> (A)
through (G).
(Clean Water Act (33 U.S.C. 1251 ft tsey.). Sale
Drinking Water Act. (42 U.S.C. 300f i't net].).
Clean Air Act (42 U.S.C. 7401 ct seq.\. Re-
source Conservation and Recovery Act (42
U.S.C. 6901 ft setj.n
[48 FR 14153. Apr. 1. 1983. as amended at 48
FR 39619. Sept. 1. 1983; 49 FR 38048. Sept, 26.
1984: 50 FR 6940. Feb. 19, 1985: 54 FR 18782.
May 2. 1989: 55 FR 48072. Nov. 16. 1990: 57 PR
11412 and 11413. Apr. 2. 1992: 64 FR 68841. Dec.
8. 1999: 65 FR 30908. May 15. 2000: 68 FR 7268.
Feb. 12. 2003]
§ 122.29 New sources and new dis-
chargers.
(a) Definitions, fl) New source and new
discharger are defined in §122.2. [See
Note 2.]
(2) Source, means any building, struc-
ture, facility, or installation from
which there is or may be a discharge of
pollutants.
(3) Existing source means any source
which is not a new source or a new dis-
charger.
(4) Site is defined in §122.2:
(5) Facilities or equipment means build-
ings, structures, process or production
equipment or machinery which form a
permanent part of the new source and
which will be used in its operation, if
these facilities or equipment are of
such value as to represent a substan-
tial commitment to construct. It ex-
cludes facilities or equipment used in
connection with feasibility, engineer-
ing, and design studies regarding the
source or water pollution treatment for
the source.
197
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§122.29
40 CFR Ch. I (7-1-04 Edition)
(b) Criteria for new source, determina-
tion. (T) Except as otherwise provided
in an applicable new source perform-
ance standard, a source is a "new
source" if it meets the definition of
"new source" in § 122.2, and
(i) It is constructed at a site at which
no other source is located; or
(ii) It totally replaces the process or
production equipment that causes the
discharge of pollutants at an existing
source; or
(iii) Its processes are substantially
independent of an existing source at
the same site. In determining whether
these processes are substantially inde-
pendent, the Director shall consider
such factors as the extent to which the
new facility is integrated with the ex-
isting 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 require-
ments of paragraphs (b)(l) (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 dis-
charger. 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 in-
stallation meeting the criteria of para-
graph (ta)(l) (ii) or (iii) of this section
but otherwise alters, replaces, or adds
to existing process or production equip-
ment.
(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 in-
stallation of facilities or equipment: or
(B) Significant site preparation work
including clearing, excavation or re-
moval 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 contrac-
tual obligation for the purchase of fa-
cilities or equipment which are in-
tended 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 engineer-
ing, and design studies do not con-
stitute a contractual obligation under
the paragraph.
(c) Requirement for an environmental
impact statement. (1) The issuance of an
NPDES permit to new source:
(i) By EPA may be a major Federal
action significantly affecting the qual-
ity of the human environment within
the meaning of the National Environ-
mental Policy Act of 1969 (NEPA), 33
U.S.C. 4321 et seq. and is subject to the
environmental review provisions of
NEPA as set out in 40 CFR part 6. sub-
part F. EPA will determine whether an
Environmental Impact Statement
(EIS) is required under §122.21(1) (spe-
cial provisions for applications from
new sources) and 40 CFR part 6, subpart
F:
(ii) By an NPDES approved State is
not a Federal action and therefore does
not require EPA to conduct an environ-
mental review.
(2) An EIS prepared under this para-
graph 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 rec-
ommend 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 ac-
tion and a review of the recommenda-
tions contained in the EIS or finding of
no significant impact.
(d) Effect of compliance with new
source performance standards. (The pro-
visions of this paragraph do not apply
to existing sources which modify their
pollution control facilities or construct
198
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Environmental Protection Agency
§122.30
new pollution control facilities and
achieve performance standards, but
which are neither new sources or new
dischargers or otherwise do not meet
the requirements of this paragraph.)
(1) Except as provided in paragraph
(d)(2) of this section, any new dis-
charger, 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 sec-
tion 301(b)(2) of CWA for the soonest
ending of the following periods:
(i) Ten years from the date that con-
struction is completed:
(ii) Ten years from the date the
source begins to discharge process or
other nonconstruction related waste-
water; or
(iii) The period of depreciation or
amortization of the facility for the pur-
poses of section 167 or 169 (or both) of
the Internal Revenue Code of 1954.
(2) The protection from more strin-
gent standards of performance afforded
by paragraph (d)(l) of this section does
not apply to:
(i) Additional or more stringent per-
mit conditions which are not tech-
nology 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 sub-
stances which are not controlled by
new source performance standards.
This includes permit conditions con-
trolling pollutants other than those
identified as toxic pollutants or haz-
ardous substances when control of
these pollutants has been specifically
identified as the method to control the
toxic pollutants or hazardous sub-
stances.
(3) When an NPDES permit issued to
a source with a "protection period"
under paragraph (d)(l) 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 require-
ments of section 301 and any other then
applicable requirements of CWA imme-
diately upon the expiration of the pro-
tection period. No additional period for
achieving compliance with these re-
quirements 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 com-
menced discharge after August 13, 1979.
or a recommencing discharger shall in-
stall and have in operating condition,
and shall "start-up" all pollution con-
trol equipment required to meet the
conditions of its permits before begin-
ning 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
-------
§122,31
40 CFR Ch, 1 (7-1-04 Edition)
Elimination System (NPDES) Pro-
gram, 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 sev-
eral ways including by changing nat-
ural hydrologic patterns and by ele-
vating pollutant concentrations and
loadings. Storm water runoff may con-
tain or mobilize high levels of contami-
nants, such as sediment, suspended sol-
ids, nutrients, heavy metals, patho-
gens, toxins, oxygen-demanding sub-
stances, and floatables.
(d) EPA strongly encourages partner-
ships and the watershed approach as
the management framework for effi-
ciently, effectively, and consistently
protecting and restoring aquatic eco-
systems and protecting public health.
[64 PR 68842. Dec. 8. 1999J
§ 122.31 As a Tribe, what is my role
under the NPDES storm water pro-
gram?
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 res-
ervation as well as other Indian coun-
try, generally.);
(b) Be classified as an owner of a reg-
ulated 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 reserva-
tions as appropriate. If you operate a
separate storm sewer system that
meets the definition of a regulated
small MS4, you are subject to the re-
quirements 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 pur-
poses of this part.); or
(c) Be a discharger of storm water as-
sociated with industrial activity or
small construction activity under
§§122.26, in which case
you must meet the applicable require-
ments. Within Indian country, the
NPDES permitting authority is gen-
erally EPA. unless you are authorized
to administer the NPDES program.
[64 FR 68842. Dec. 8. 1999J
§ 122.32 As an operator of a small MS4,
am I regulated under the NPDES
storm water program?
(a) Unless you qualify for a waiver
under paragraph (c) of this section, you
are regulated if you operate a small
MS4. including but not limited to sys-
tems 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
-------
Environmental Protection Agency
§122.33
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 is i
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 allo-
cations that are part of an EPA ap-
proved 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.. in-
cluding small streams, tributaries.
lakes, and ponds, that receive a. dis-
charge from your MS4:
(2) For all such waters, the permit-
ting 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 con-
cern:
(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 sol-
ids, turbidity or siltation). pathogens.
oil and grease, and any pollutant that
has been identified as a cause of im-
pairment of any water body that will
receive a discharge from your MS4: and
(4) The permitting authority has de-
termined 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 habi-
tat and biological impacts.
[64 FR 68842. Dec. 8. 1999]
$ 122.33 If I am an operator of a regu-
lated small MS4, how do I apply for
an NPDES permit and when do I
have to apply?
(a) If you operate a regulated small
MS4 under §122.32. you must seek cov-
erage under a NPDES permit issued by
your NPDES permitting authority. If
you are located in an NPDES author-
ized State. Tribe, or Territory, then
that State. Tribe, or Territory is your
NPDES permitting authority. Other-
wise, your NPDES permitting author-
ity us the EPA Regional Office.
(!» You must seek authorization to
discharge under a general or individual
NPDES permit, as follows:
(1) If your NPDES permitting author-
ity has issued a general permit applica-
ble to your discharge and you are seek-
ing coverage under the general permit.
you must submit a Notice of Intent
(NOD 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 per-
mit will explain any other steps nec-
essary to obtain permit authorization.
(2)(i) If you are seeking authorization
to discharge under an individual per-
mit and wish to implement a program
under §122.34. you must submit an ap-
plication to your NPDES permitting
authority that includes the informa-
tion required under §§122.21(f) and
122.34(d). an estimate of square mileage
served by your small MS4, and any ad-
ditional information that your NPDES
permitting authority requests. A storm
sewer map that satisfies the require-
ment 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 per-
mit and wish to implement a program
that is different from the program
under §122.34, you will need to comply
with the permit application require-
ments of §122.26(d). You must submit
both Parts of the application require-
ments in §§122.26(d)(l) and (2) by March
10. 2003. You do not need to submit the
information required by
§§122.26 and (d)(2) regarding
201
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§122.34
40 CFR Ch. I (7-1-04 Edition)
your legal authority, unless you intend
for the permit writer to take such in-
formation into account when devel-
oping your other permit conditions.
(iii) If allowed by your NPDBS per-
mitting 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-permit-
tees 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 per-
mit 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-per-
mittee, you will be responsible for
compliance with the permit's condi-
tions applicable to your jurisdiction. If
you choose this option you will need to
comply with the permit application re-
quirements of §122.26, rather than the
requirements of §122.34. You do not
need to comply with the specific appli-
cation requirements of §122.26(d)(l)(iii)
and (iv) and (d)(2)(iii) (discharge char-
acterization). You may satisfy the re-
quirements in §122.26 (dXlKv) and
(d)(2)(iv) (identification of a manage-
ment 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 ex-
isting 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 activi-
ties in your MS4, and detail the re-
sources available to you to accomplish
the plan.
(c) If you operate a regulated small
MS4:
(1) Designated under §122.32(a)(l). you
must apply for coverage under an
NPDBS permit, or apply for a modifica-
tion 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 modifica-
tion of an existing NPDES permit
under paragraph (b)(3) of this section.
within 180 days of notice, unless the
NPDES permitting authority grants a
later date.
[64 FR 68843. Dec. 8. 1999]
§ 122.34 As an operator of a regulated
small MS4, what will my NPDES
MS4 storm water permit require?
(a) Your NPDES MS4 permit will re-
quire at a minimum that you develop.
implement, and enforce a storm water
management program designed to re-
duce the discharge of pollutants from
your MS4 to the maximum extent prac-
ticable (MBP). to protect water qual-
ity, 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 imple-
mentation of best management prac-
tices (BMPs) are generally the most ap-
propriate form of effluent limitations
when designed to satisfy technology re-
quirements (including reductions of
pollutants to the maximum extent
practicable) and to protect water qual-
ity. Implementation of best manage-
ment practices consistent with the pro-
visions of the storm water manage-
ment program required pursuant to
this section and the provisions of the
permit required pursuant to §122.33
constitutes compliance with the stand-
ard of reducing pollutants to the "max-
imum extent practicable." Your
NPDES permitting authority will
specify a time period of up to 5 years
from the date of permit issuance for
you to develop and implement your
program.
(b) Minimum control measures—(1) Pub-
lic education and outreach on storm water
impacts, (i) You must implement a pub-
lic education program to distribute
educational materials to the commu-
nity or conduct equivalent outreach
activities about the impacts of storm
202
-------
Environmental Protection Agency
§122.34
water discharges on water bodies and
the steps that the public can take to
reduce pollutants in storm water run-
off.
(ii) Guidance: You may use storm
water educational materials provided
by your State, Tribe. EPA. environ-
mental, public interest or trade organi-
zations, or other MS4s. The public edu-
cation program should inform individ-
uals and households about the steps
they can take to reduce storm water
pollution, such as ensuring proper sep-
tic system maintenance, ensuring the
proper use and disposal of landscape
and garden chemicals including fer-
tilizers and pesticides, protecting and
restoring riparian vegetation, and
properly disposing of used motor oil or
household hazardous wastes. EPA rec-
ommends that the program inform in-
dividuals and groups how to become in-
volved in local stream and beach res-
toration activities as well as activities
that are coordinated by youth service
and conservation corps or other citizen
groups. EPA recommends that the pub-
lic education program be tailored.
using a. mix of locally appropriate
strategies, to target specific audiences
and communities. Examples of strate-
gies include distributing brochures or
fact sheets, sponsoring speaking en-
gagements before community groups.
providing public service announce-
ments, implementing educational pro-
grams 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 institu-
tional entities likely to have signifi-
cant storm water impacts. For exam-
ple, providing information to res-
taurants on the impact of grease clog-
ging 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, particu-
larly minority and disadvantaged com-
munities, as well as any special con-
cerns relating to children.
(2) Public involvement participation. U.)
You must, at a minimum, comply with
State. Tribal and local public notice
requirements when implementing a
public involvement participation pro-
gram.
(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 pub-
lic to participate in program develop-
ment and implementation include serv-
ing as citizen representatives on a local
storm water management panel, at-
tending public hearings, working as
citizen volunteers to educate other in-
dividuals about the program, assisting
in program coordination with other
pre-existing programs, or participating
in volunteer monitoring efforts. (Citi-
zens should obtain approval where nec-
essary for lawful access to monitoring
sites.)
(3) Illicit discharge detection and elimi-
nation, (ii You must develop, imple-
ment and enforce a program to detect
and eliminate illicit discharges (as de-
fined at §122.26ib)(2)) into your small
MS4.
(ii) You must:
(A) Develop, if not already com-
pleted, 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 dis-
charges 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 en-
forcement 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, busi-
nesses, and the general public of haz-
ards associated with illegal discharges
and improper disposal of waste.
Ciii) You need address the following-
categories of non-storm water dis-
charges or flows (i.e.. illicit discharges)
only if you identify them as significant
contributors of pollutants to your
small MS4: water line flushing, land-
scape irrigation, diverted stream flows.
203
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§122.34
40 CFR Ch. I (7-1-04 Edition)
rising ground waters, uncontaminated
ground water infiltration (as defined at
40 CFR 35,2005(20)), uncontaminated
pumped ground water, discharges from
potable water sources, foundation
drains, air conditioning condensation.
irrigation water, springs, water from
crawl space pumps, footing drains.
lawn watering, individual residential
car washing, flows from riparian habi-
tats and wetlands, dechlorinated swim-
ming pool discharges, and street wash
water (discharges or flows from fire
fighting activities are excluded from
the effective prohibition against non-
storm water and need only be ad-
dressed where they are identified as
significant sources of pollutants to wa-
ters of the United States).
(iv) Guidance: EPA recommends that
the plan to detect and address illicit
discharges include the following four
components: procedures for locating
priority areas likely to have illicit dis-
charges: procedures for tracing the
source of an illicit discharge: proce-
dures for removing the source of the
discharge; and procedures for program
evaluation and assessment. EPA rec-
ommends 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 ac-
tions may include storm drain sten-
ciling, a program to promote, pub-
licize, and facilitate public reporting of
illicit connections or discharges, and
distribution of outreach materials.
(4) Construction site storm water runoff
control, (i) You must develop, imple-
ment, and enforce a program to reduce
pollutants in any storm water runoff to
your small MS4 from construction ac-
tivities that result in a land disturb-
ance of greater than or equal to one
acre. Reduction of storm water dis-
charges from construction activity dis-
turbing less than one acre must be in-
cluded in your program if that con-
struction activity is part of a larger
common plan of development or sale
that would disturb one acre or more. If
the NPDES permitting authority
waives requirements for storm water
discharges associated with small con-
struction activity in accordance with
§122.26(b)(15)(i), you are not required to
develop, implement, and/or enforce a
program to reduce pollutant discharges
from such sites.
(ii) Your program must include the
development and implementation of. at
a minimum:
(A) An ordinance or other regulatory
mechanism to require erosion and sedi-
ment controls, as well as sanctions to
ensure compliance, to the extent allow-
able under State. Tribal, or local law:
(B) Requirements for construction
site operators to implement appro-
priate 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 po-
tential water quality impacts:
(E) Procedures for receipt and consid-
eration 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-mon-
etary penalties, fines, bonding require-
ments and/or permit denials for non-
compliance. EPA recommends that
procedures for site plan review include
the review of individual pre-construc-
tion site plans to ensure consistency
with local sediment and erosion con-
trol requirements. Procedures for site
inspections and enforcement of control
measures could include steps to iden-
tify priority sites for inspection and
enforcement based on the nature of the
construction activity, topography, and
the characteristics of soils and receiv-
ing 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 ju-
risdiction that discharge into your sys-
tem. See §122.44(s) (NPDES permitting
authorities' option to incorporate
qualifying State. Tribal and local ero-
sion and sediment control programs
into NPDES permits for storm water
discharges from construction sites).
204
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Environmental Protection Agency
§122.34
Also see §122.35(b) (The NPDES permit-
ting' authority may recognize that an-
other government entity, including the
permitting authority, may be respon-
sible for implementing' one or more of
the minimum measures on your be-
half. *
(5) Post-construction storm tfuti'r man-
agement in ncic development and raleicl-
opincnt.
ii) You must develop, implement, and
enforce a program to address storm
water runoff from new development
and redevelopment projects that dis-
turb greater than or equal to one acre.
including projects less than one acre
that, are part of a larger common plan
of development or sa.le. that discharge
into your small MS4. Your program
must ensure that controls are in place
that would prevent or minimize water
quality impacts.
(ii) You must:
(A) Develop and implement M.rate-
gies which include ,-. combination of
structural and or non-structural best
management practices iBMPs) appro-
priate for your community:
iBi Use an ordinance or other tegu
iatory mechanism to address post-con-
struction runoff from new development
and redevelopment projects to the ex-
tent allowable under State. Tribal or
local law: and
uch as minimization of percent imper-
vious area after development and mini-
mization of directly connected imper-
vious areas. Structural BMPs include:
storage practices such as wet. ponds
and extended-detention outlet struc-
tures: filtration practices such as
Brassed swales, sand filters and filter
strips: and infiltration practices such
as infiltration basins and infiltration
trenches. HP A recommends that you
'•nsure the appropriate implementation
of the structural BMPs by considering
some or all of the following: pre-con-
struction review of BMP designs: in-
spections during construction to verify
BMPs are built, as designed: post-con-
struction inspection and maintenance
of BMPs; and penalty provisions for the
noncompliance with design, construc-
tion or operation and maintenance,
Storm water technologies are con-
stantly being improved, and EPA rec-
ommends that your requirements be
205
-------
§122.34
40CFRCh. I (7-1-04 Edition)
responsive to these changes, develop-
ments or improvements in control
technologies.
(6) Pollution prevention/good house-
keeping for municipal operations, (i) You
must develop and implement an oper-
ation and maintenance program that
includes a training component and has
the ultimate goal of preventing or re-
ducing pollutant runoff from municipal
operations. Using training materials
that are available from EPA. your
State, Tribe, or other organizations,
your program must include employee
training to prevent and reduce storm
water pollution from activities such as
park and open space maintenance, fleet
and building maintenance, new con-
struction and land disturbances, and
storm water system maintenance.
(ii> Guidance: EPA recommends that.
at a minimum, you consider the fol-
lowing in developing your program:
maintenance activities, maintenance
schedules, and long-term inspection
procedures for structural and non-
structural storm water controls to re-
duce floatables and other pollutants
discharged from your separate storm
sewers; controls for reducing or elimi-
nating 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 stor-
age locations and snow disposal areas
operated by you, and waste transfer
stations; procedures for properly dis-
posing of waste removed from the sepa-
rate storm sewers and areas listed
above (such as dredge spoil, accumu-
lated 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 ad-
ditional water quality protection de-
vices or practices. Operation and main-
tenance should be an integral compo-
nent of all storm water management
programs. This measure is intended to
improve the efficiency of these pro-
grams and require new programs where
necessary. Properly developed and im-
plemented operation and maintenance
programs reduce the risk of water qual-
ity problems.
(c) If an existing qualifying local pro-
gram requires you to implement one or
more of the minimum control meas-
ures of paragraph (b) of this section.
the NPDES permitting authority may
include conditions in your NPDES per-
mit that direct you to follow that
qualifying program's requirements
rather than the requirements of para-
graph (b) of this section. A qualifying
local program is a local, State or Trib-
al municipal storm water management
program that imposes, at a minimum.
the relevant requirements of paragraph
(b) of this section.
(d)(l) In your permit application (ei-
ther 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 para-
graphs (bul) through (b)(6) of this sec-
tion:
(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 respon-
sible for implementing or coordinating
your storm water management pro-
gram.
(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 min-
imum control measures in paragraphs
(b)(3) through (b)(6) of this section un-
less, prior to submitting your NOI,
EPA or your State or Tribe has pro-
vided 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 de-
signed 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 con-
trol measures.
206
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Environmental Protection Agency
§122.35
(e)(l) You must comply with any
more stringent effluent limitations in
your permit, including permit require-
ments that modify, or are in addition
to, the minimum control measures
based on an approved total maximum
daily load (TMDL) or equivalent anal-
ysis. The permitting authority may in-
clude such more stringent limitations
based on a TMDL or equivalent anal-
ysis that determines such limitations
are needed to protect water quality.
(2) Guidance: EPA strongly rec-
ommends 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 af-
fected small MS4. except where an ap-
proved TMDL or equivalent analysis
provides adequate information to de-
velop more specific measures to pro-
tect water quality.
(f) You must comply with other ap-
plicable NPDES permit requirements,
standards and conditions established in
the individual or general permit, devel-
oped consistent with the provisions of
§§122.41 through 122.49. as appropriate.
(g) Evaluation and assessment—(1)
Evaluation. You must evaluate program
compliance, the appropriateness of
your identified best management prac-
tices, and progress towards achieving
your identified measurable goals.
NOTE TO PARAGRAPH (OKI): The NPDES
permitting' authority may determine moni-
toring' requirements for you in accordance
with State'Tribal monitoring plans appro-
priate to your watershed. Participation in a
group monitoring program is encouraged.
(2) Re.cordkeeping. You must keep
records required by the NPDES permit
for at least 3 years. You must submit
your records to the NPDES permitting
authority only when specifically asked
to do so. You must make your records,
including a description of your storm
water management program, available
to the public at reasonable times dur-
ing regular business hours (see §122.7
for confidentiality provision). (You
may assess a reasonable charge for
copying. You may require a member of
the public to provide advance notice.)
(3) Reporting. Unless you are relying
on another entity to satisfy your
NPDES permit obligations under
§122.35(a), you must submit annual re-
ports to the NPDES permitting author-
ity for your first permit term. For sub-
sequent permit terms, you must sub-
mit reports in year two and four unless
the NPDES permitting authority re-
quires more frequent reports. Your re-
port must include:
fi) The status of compliance with per-
mit conditions, an assessment of the
appropriateness of your identified best
management practices and progress to-
wards achieving your identified meas-
urable goals for each of the minimum
control measures;
(ii) Results of information collected
and analyzed, including monitoring
data, if any. during the reporting pe-
riod:
(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 an-
other governmental entity to satisfy
some of your permit obligations (if ap-
plicable).
[64 FR 68843. Dec. 8. 1999]
§ 122.35 As an operator of a regulated
small MS4, may I share the respon-
sibility to implement the minimum
control measures with other enti-
ties?
(a) You may rely on another entity
to satisfy your NPDES permit obliga-
tions to implement a minimum control
measure if:
(1) The other entity, in fact, imple-
ments 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 imple-
ment the control measure on your be-
half. In the reports you must submit
under §122.34(^X3), you must also speci-
fy that, you rely on another entity to
satisfy some of your permit obliga-
tions. 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
207
-------
§122.36
40CFRCh. I (7-1-04 Edition)
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
(or component thereof). Therefore,
EPA encourages you to enter into a le-
gally binding agreement with that en-
tity if you want to minimize any un-
certainty about compliance with your
permit.
(b) In some cases, the NPDES permit-
ting 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 imple-
menting one or more of the minimum
control measures for your small MS4 or
that the permitting authority itself is
responsible. Where the permitting au-
thority does so. you are not required to
include such minimum control meas-
ure(s) in your storm water manage-
ment program. (For example, if a State
or Tribe is subject to an NPDES permit
that requires it to administer a pro-
gram to control construction site run-
off at the State or Tribal level and that
program satisfies all of the require-
ments of §122.34(b)(4), you could avoid
responsibility for the construction
measure, but would be responsible for
the remaining minimum control meas-
ures.) Your permit may be reopened
and modified to include the require-
ment to implement a minimum control
measure if the entity fails to imple-
ment it.
[64 FB 68846, Dec. 8. 1999]
§ 122.36 As an operator of a regulated
small MS4, what happens if I don't
comply with the application or per-
mit requirements in §§ 122.33
through 122.35?
NPDES permits are federally en-
forceable. 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 ap-
plicable State, Tribal, or local law.
Compliance with a permit issued pursu-
ant 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-per-
mittee under an individual permit or
under a general permit by means of a
joint Notice of Intent you remain sub-
ject to the enforcement actions and
penalties for the failure to comply with
the terms of the permit in your juris-
diction except as set forth in §122.35(b).
164 PR 68847. Dec. 8. 1999J
§122.37 Will the small MS4 storm
water program regulations at
SU22.32 through 122.36 and §123.35
of this chapter change in the fu-
ture?
EPA will evaluate the small MS4 reg-
ulations at §§122.32 through 122.36 and
§123.35 of this chapter after December
10. 2012 and make any necessary revi-
sions. (EPA intends to conduct an en-
hanced 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 CBMPs). as well
as other relevant information sources.)
[64 FR 68847. Dec. 8. 1999]
Subpart C—Permit Conditions
§ 122.41 Conditions applicable to all
permits (applicable to State pro-
grams, see § 123.25).
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 per-
mit.
(a) Duty to comply. The permittee
must comply with all conditions of this
permit. Any permit noncompliance
constitutes a violation of the Clean
Water Act and is grounds for enforce-
ment action; for permit termination,
revocation and reissuance. or modifica-
tion; or denial of a permit renewal ap-
plication.
208
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Environmental Protection Agency
§122.41
(li The permittee shall comply with
effluent standards or prohibitions es-
lablished under section 307fa) of the
Clean Water Act for toxic pollutants
and with standards for sewage sludge
use or disposal established under sec-
tion 405(d> of the CWA within the time
provided in the regulations that estab-
lish these standards or prohibitions or
standards for sewage sludge use or dis-
posal, even if the permit has noi, yet
been modified to incorporate the re-
quirement.
(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 limita-
tion 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 ex-
ceed $25.000 per day for each violation.
The Clean W7ater Act provides that any
person who negligently violates sections
301. 302. 306. 307. 308. 318. or 405 of the
Act. or any condition or limitation im-
plementing' any of such sections in a
permit issued under section 402 of the
Act. or any requirement imposed in a
pretreatment program approved under
section 402(a)(3) or 402(b)(8) of the Act.
is subject to criminal penalties of $2.500
to $25.000 per day of violation, or im-
prisonment of not more than 1 year, or
both. In the case of a second or subse-
quent conviction for a negligent viola-
tion, a person shall be subject to crimi-
nal penalties of not more than $50.000
per day of violation, or by imprison-
ment of not more than 2 years, or both.
Any person who knowingly violates
such sections, or such conditions or
limitations is subject to criminal pen-
alties of $5,000 to $50.000 per day of vio-
lation, or imprisonment for not more
than 3 years, or both. In the case of a
second or subsequent conviction for a
knowing violation, a person shall be
subject to criminal penalties of not
more than $100,000 per day of violation.
or imprisonment of not more than 6
years, or both. Any person who know-
ingly violates section 301, 302, 303. 306,
307, 308, 318 or 405 of the Act, or any
permit condition or limitation imple-
menting any of such sections in a per-
mit issued under section 402 of the Act,
and who knows at that time that he
thereby places another person in immi-
nent danger of death or serious bodily
injury, shall, upon conviction, be sub-
ject to a fine of not more than S250.000
or imprisonment of not more than 15
years, or both. In the case of a second
or subsequent conviction for a knowing
endangernu'iit violation, a person shall
be subject to a fine of not more than
SoOO.OOO or by imprisonment of not.
more than 30 years, or both. An organi-
zation, as defined in section
309(c)(3)(B)(iii» of the CWA. shall, upon
conviction of violating the imminent
danger provision, be subject to a fine of
not more than $1.000.000 and can be
fined up to $2.000.000 for second or sub-
sequent convictions.
(3) Any person may be assessed an ad-
ministrative penalty by the Adminis-
trator for violating section 301. 302. 306.
307. 308. 318 or 405 of this Act. or any
permit condition or limitation imple-
menting any of such sections in a per-
mit 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 pen-
alty not to exceed $125,000.
(b) Duty to reapply. If the permittee
wishes to continue an activity regu-
lated by this permit after the expira-
tion date of this permit, the permittee
must apply for and obtain a new per-
mit.
(c) Need to halt or reduce activity not a
defense. It shall not be a defense for a
permittee in an enforcement action
that it would have been necessary to
halt or reduce the permitted activity
in order to maintain compliance with
the conditions of this permit.
(d) Duty to mitigate. The permittee
shall take all reasonable steps to mini-
mize or prevent any discharge or
sludge use or disposal in violation of
this permit which has a reasonable
likelihood of adversely affecting
human health or the environment.
(e) Proper operation and maintenance.
The permittee shall at all times prop-
erly operate and maintain all facilities
209
-------
§122.41
40 CFR Ch. I (7-1-04 Edition)
and systems of treatment and control
(and related appurtenances) which are
installed or used by the permittee to
achieve compliance with the conditions
of this permit. Proper operation and
maintenance also includes adequate
laboratory controls and appropriate
quality assurance procedures. This pro-
vision requires the operation of back-
up or auxiliary facilities or similar sys-
tems which are installed by a per-
mittee only when the operation is nec-
essary to achieve compliance with the
conditions of the permit.
(f) Permit actions. This permit may be
modified, revoked and reissued, or ter-
minated for cause. The filing of a re-
quest by the permittee for a permit
modification, revocation and
reissuance. or termination, or a notifi-
cation of planned changes or antici-
pated noncompliance does not stay any
permit condition.
(g) Property rights. This permit does
not convey any property rights of any
sort, or any exclusive privilege.
(h) Duty to provide information. The
permittee shall furnish to the Director.
within a reasonable time, any informa-
tion which the Director may request to
determine whether cause exists for
modifying, revoking and reissuing, or
terminating this permit or to deter-
mine compliance with this permit. The
permittee shall also furnish to the Di-
rector upon request, copies of records
required to be kept by this permit.
(i) Inspection and entry. The per-
mittee shall allow the Director, or an
authorized representative (including an
authorized contractor acting as a rep-
resentative of the Administrator), upon
presentation of credentials and other
documents as may be required by law,
to:
(1) Enter upon the permittee's prem-
ises where a regulated facility or activ-
ity is located or conducted, or where
records must be kept under the condi-
tions of this permit;
(2) Have access to and copy, at rea-
sonable times, any records that must
be kept under the conditions of this
permit;
(3) Inspect at reasonable times any
facilities, equipment (including moni-
toring- and control equipment), prac-
tices, or operations regulated or re-
quired under this permit; and
(4) Sample or monitor at reasonable
times, for the purposes of assuring per-
mit compliance or as otherwise author-
ized by the Clean Water Act, any sub-
stances or parameters at any location.
(j) Monitoring and records. (1) Samples
and measurements taken for the pur-
pose of monitoring shall be representa-
tive of the monitored activity.
(2) Except for records of monitoring
information required by this permit re-
lated 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 mainte-
nance records and all original strip
chart recordings for continuous moni-
toring 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 appli-
cation. This period may be extended by
request of the Director at any time.
(3) Records of monitoring informa-
tion shall include:
(i) The date, exact place, and time of
sampling or measurements:
-------
Environmental Protection Agency
§122.41
first conviction of such person under
this paragraph, punishment is a fine of
not more than $20,000 per day of viola-
tion, or by imprisonment of not more
than 4 years, or both.
(k) Signatory requirement. (1) All ap-
plications, reports, or information sub-
mitted to the Director shall be signed
and certified. (See §122,22)
(2) The CWA provides that any person
who knowingly makes any false state-
ment, representation, or certification
in any record or other document sub-
mitted or required to be maintained
under this permit, including' moni-
toring' reports or reports of compliance
or non-compliance shall, upon convic-
tion, be punished by a fine of not more
than $10.000 per violation, or by impris-
onment for not more than 6 months per
violation, or by both.
(1) Reporting requirements. (1) Planned
changes. The permittee shall give no-
tice to the Director as soon as possible
of any planned physical alterations or
additions to the permitted facility. No-
tice is required only when:
(i) The alteration or addition to a
permitted facility may meet one of the
criteria for determining' whether a fa-
cility is a new source in §122.29(b): or
(ii) The alteration or addition could
significantly change the nature or in-
crease the quantity of pollutants dis-
charged. This notification applies to
pollutants which are subject neither to
effluent limitations in the permit, nor
to notification requirements under
§122.42(a)(l).
(iii! The alteration or addition re-
sults in a significant change in the per-
mittee's sludge use or disposal prac-
tices, and such alteration, addition, or
change may justify the application of
permit conditions that are different
from or absent in the existing permit.
including notification of additional use
or disposal sites not reported during
the permit application process or not
reported pursuant to an approved land
application plan:
(2) Anticipated noncotnpUancc. The
permittee shall give advance notice to
the Director of any planned changes in
the permitted facility or activity
which may result in noncompliance
with permit requirements.
(3) Transfers. This permit is not
transferable to any person except after
notice to the Director. The Director
may require modification or revocation
and reissuance of the permit to change
the name of the permittee and incor-
porate such other requirements as may
be necessary under the Clean Water
Act. (See §122.61: in some cases, modi-
fication or revocation and reissuance is
mandatory. >
(4) Monitoring reports. Monitoring re-
sults shall be reported at the intervals
specified elsewhere in this permit.
(i) Monitoring results must be re-
ported on a Discharge Monitoring Re-
port
-------
§122.41
40 CFR Ch. I (7-1-04 Edition)
the noncompliance has not been cor-
rected, the anticipated time it is ex-
pected to continue: and steps taken or
planned to reduce, eliminate, and pre-
vent reoccurrence of the noncompli-
ance.
(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 ef-
fluent limitation in the permit.
(C) Violation of a maximum daily
discharge limitation for any of the pol-
lutants listed by the Director in the
permit to be reported within 24 hours.
(See§122.44(g).)
(ill) The Director may waive the
written report on a case-by-case basis
for reports under paragraph d)(6)(ii) of
this section if the oral report has been
received within 24 hours.
(7) Other noncompliance. The per-
mittee shall report all instances of
noncompliance not reported under
paragraphs (1) (4), (5). and (6) of this
section, at the time monitoring reports
are submitted. The reports shall con-
tain the information listed in para-
graph (1)(6) of this section.
(8) Other information. Where the per-
mittee becomes aware that it failed to
submit any relevant facts in a permit
application, or submitted incorrect in-
formation in a permit application or in
any report to the Director, it shall
promptly submit such facts or informa-
tion.
(m) Bypass—(1) Definitions, (i) Bypass
means the intentional diversion of
waste streams from any portion of a
treatment facility.
(ii) Severe property damage means sub-
stantial physical damage to property.
damage to the treatment facilities
which causes them to become inoper-
able, or substantial and permanent loss
of natural resources which can reason-
ably be expected to occur in the ab-
sence of a bypass. Severe property
damage does not mean economic loss
caused by delays in production.
(2) Bypass not exceeding Imitations.
The permittee may allow any bypass to
occur which does not cause effluent
limitations to be exceeded, but only if
it also is for essential maintenance to
assure efficient operation. These by-
passes are not subject to the provisions
of paragraphs (m)(3) and (m)(4) of this
section.
(3) Xotice—(i) Anticipated bypass. If
the permittee knows in advance of the
need for a bypass, it shall submit prior
notice, if possible at least ten days be-
fore the date of the bypass.
(iii Unanticipated bypass. The per-
mittee shall submit notice of an unan-
ticipated bypass as required in para-
graph (1)(6) of this section (24-hour no-
tice).
(4s Prohibition of bypass, (i) Bypass is
prohibited, and the Director may take
enforcement action against a per-
mittee for bypass, unless:
(A) Bypass was unavoidable to pre-
vent loss of life, personal injury, or se-
vere property damage:
(B) There were no feasible alter-
natives to the bypass, such as the use
of auxiliary treatment facilities, reten-
tion of untreated wastes, or mainte-
nance during normal periods of equip-
ment downtime. This condition is not
satisfied if adequate back-up equip-
ment should have been installed in the
exercise of reasonable engineering
judgment to prevent a bypass which oc-
curred during normal periods of equip-
ment downtime or preventive mainte-
nance: and
(C) The permittee submitted notices
as required under paragraph (m)(3) of
this section.
(ii) The Director may approve an an-
ticipated bypass, after considering its
adverse effects, if the Director deter-
mines that it will meet the three con-
ditions listed above in paragraph
(m>(4)(i> of this section.
(n> Upset—(1) Definition. Upset means
an exceptional incident in which there
is unintentional and temporary non-
compliance with technology based per-
mit effluent limitations because of fac-
tors beyond the reasonable control of
the permittee. An upset does not in-
clude noncompliance to the extent
caused by operational error, improp-
erly designed treatment facilities, in-
adequate treatment facilities, lack of
preventive maintenance, or careless or
improper operation.
(2) Effect of an upset. An upset con-
stitutes an affirmative defense to an
action brought for noncompliance with
212
-------
Environmental Protection Agency
§ 122.42
such technology based permit effluent
limitations if the requirements of para-
graph (n)(3) of this section are met. No
determination made during adminis-
trative review of claims that non-
compliance was caused by upset, and
before an action for noncomplianee is
final administrative action subject to
judicial review.
CAt Condition* ;ic< c.v.van/ for a dt'in-
onstrafiorj of itpsi't, A permittee who
wishes to establish the affirmative de-
fense of upset shall demonstrate.
throueh properly signed, contempora-
neous operating' losjs. or other relevant
evidence that:
(1) An upset occurred anil that the
permittee can identify :he causetsi of
the upset:
(ii) The permitted facility was at the
time being1 properly operated: and
(Hi) The permittee submitted >>utice
of the. upset as required in paragraph
(B> of this section (24 hoar no-
tice ).
(iv) The permittee complied with any
remedial measures reciuired under
paragraph id) of this section,
(-1) B'd'dcri of pro--!. In any enforce-
ment- proceeding' the permittee .seeking
to establish the occurrence of an upset
has the burden of proof
iClean Water Act '33 t'.S.C'. 1251 <'/ ,s<-y.>. Safc
Drinking Water Act i-U t'.s.C. 3001' t-< v'e/.i.
Clean Air Act i-12 V ^ (' 7101 ii V. Re-
source Conservation ,uul Ref-overy Art ri"2
U.fcj.C. 6901 et At'Q.n
[18 FR 14153, Apr. 1. 198:1. as aiuftulcd at 18
FR 39620. .Sept. *1. 198;}: 19 FH 38049. Sept. 26.
1984: SO FR 4514. Jan. 31. 1985: 50 FR 69-10 Feb.
19. 1985: 5-1 PR 255. Jan 4. 1989: -">! FK 18783.
May 2. 1989; 65 FK 30908. May 15. 2000]
§ 122.42 Additional conditions appli-
cable to specified categories of
NPDES permits (applicable to State
NPDES programs, see S 123.25).
The following conditions, in addition
to those set forth in §122.41, apply to
all NPDES permit,- within the cat-
egories specified below:
(a) Existing manufacturing, commercial.
mining, and silricuUural discharger*. In
addition to the reporting requirements
under §122.41(1). all existing' manufac-
turing, commercial, mining, and sil-
vicultural dischargers must notify the
Director as soon as they know or have
reason to believe:
(1) That any activity has occurred or
will occur which would result in the
discharge, on a routine or frequent
basis, of any toxic pollutant which is
not limited in the permit, if that dis-
charge, will exceed the highest- of the
following' "notification levels":
ii) One hundred microg'rams per liter
< 100 usD:
(ii) Two hundred microg'rams per
liter (200 LI a 1> for acrolein and acrylo-
nitrile; five hundred mierog'rams per
liter iftOO n tf 1) for 2.4-dinitrophenol and
for 2-methyl-4.6-dinitrophenol: and one
milligram per liter (1 mg'n for anti-
mony:
uii) Five -51 times the maximum, con-
c'-ntratior. \vilue reported for that pol-
lutant in the permit- application in ac-
cordance with § r22.21(g')(7>: or
(ivi The level established by the Di-
rector in ac- ordance with §122.44(fs,
i2) That any activity has occurred or
will occur which would result: in any
siiscliarge. on a non-routine or infre-
quent basis, of .1 toxic pollutant which
is not limiti--il in the permit, if that dis-
r ha rye will exceed the hig'hest of the
following "fiiitifK-aiion levels":
(i) Five handled microtrrams per lifer
i-"-!)0 a H 1):
(iii One mtiihii'am per liter (1 mir ! i
fur antimony:
iiii) Ten flfr limes, the maximum
i-iincentratinn value reported for that
pollutant in the permit application in
accordance with § 122.2K"'x7;>,
(ivt The level established by the Di~
lector in accordance with §122.44' those pollutants:
and
(2) Any substantial change in the vol-
ume 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 informa-
tion on (ii the quality and quantity of
effluent introduced into the POTW. and
di) any anticipated impact of the
213
-------
§122,42
40 CFR Ch. I (7-1-04 Edition)
change on the quantity or quality of ef-
fluent to he discharged from the
POTW.
(c) Municipal separate storm xcirur sys-
tems. The operator of a large or me-
dium municipal separate storm sewer
system or a municipal separate storm
sewer that has been designated by the
Director under §122.26(a)(l)(v) of this
part must submit an annual report by
the anniversary of the date of the
issuance of the permit for such system.
The report shall include:
(1) The status of implementing the
components of the storm water man-
agement 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 §122.26sd)(2)(iii> of this part: and
(3) Revisions, if necessary, to the as-
sessment of controls and the fiscal
analysis reported in the permit appli-
cation under §122.26
-------
Environmental Protection Agency
§122.43
i A/ Ail applkftbk- words ident:!iPd
Srarrumnt paragraph rp'ulMixi of this
section:
iR5 In addition, all CAFOs subject- to
10 CFR part, 413 must comply with
record keeping requirements an speci-
fied in §412.37(b) and tci and §412.47(b>
and so).
(ii) A copy of the CAFO's site-specific
nutrient management, plan must be
maintained on site and made available
to the Director upon request.
(3) acquirements relating to transfer of
manure or process iiKistewatrr to other
persons. Prior to transferring manure.
litter or process wastewater to other
persons. Large CAFOs must provide the
recipient of the manure, litter or proc-
ess wastewater with the most current
nutrient analysis. The analysis pro-
vided must be consistent with the re-
quirements of 40 CFR part 412. Large
CAFOs must retain for five years
records of the date, recipient name and
address, and approximate amount of
manure, litter or process wastewater
transferred to another person,
<4) Annual reporting requirements for
CAFOs. The permittee must submit an
annual report to the Director. The an-
nual report must include:
(i) The number and type of animals.
whether in open confinement or housed
under roof (beef cattle, broilers, layers.
swine weighing 55 pounds or more,
swine weighing less than 55 pounds.
mature dairy cows, dairy heifers, veal
calves, sheep and lambs, horses, ducks.
turkeys, other);
(ii) Estimated amount of total ma-
nure, litter and process wastewater
generated by the CAPO in the previous
12 months (tons/gallon.?*;
(iiii Estimated amount of total ma-
nure, litter and process wastewater
transferred to other person by the
CAPO in the previous 12 months i tons/
gallons);
(iv) Total number of acres for land
application covered by the nutrient
management plan developed in accord-
ance with paragraph '--
i p.rred in * he previous 12 months, in-
cluding1 date. Lime, and approximate
volume; and
(vii) A statement indicating whether
the current version of the CAFO's nu-
trient management, plan was developed
or approved by a certified nutrient
management planner.
|48 FR 11153 Apr, 1. 1983. as amended at 49
PR 38049 Sept, 26. 1984: 50 PR 4514, Jan. 31.
1985: 55 FR 48073. Nov. 16. 1990: 57 FR 60448.
Dec. 18. 1992: 68 FR 7268, Pel). 12. 20031
$ 122.43 Establishing permit conditions
(applicable to State programs, see
§123.25).
fa) 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 v/ith
all applicable requirements of CWA and
regulations. These shall include condi-
tions under §§122.46 (duration of per-
mits). 122.47(a) (schedules of compli-
ance), 122.48 (monitoring), and for EPA
permits only 122.47(b) (alternates
schedule of compliance) and 122,49 (con-
siderations under Federal law).
(b)(l> For a State issued permit, an
applicable requirement is a State stat-
utory or regulatory requirement which
takes effect prior to final administra-
tive disposition of a permit. For a per-
mit issued by BJPA. an applicable re-
quirement is a statutory or regulatory
requirement (including any interim
final regulation) which takes effect
prior to the issuance of the permit.
riection 124.14 (reopening" of comment
period) provides a means for reopening
EPA permit proceedings at the discre-
tion of the Director where new require-
ments become effective during the per-
mitting process and are of sufficient
magnitude to make additional pro-
ceedings desirable. For State and EPA
administered programs, an applicable
requirement is also any requirement
which takes effect prior to the modi-
fication 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 modi-
fied or revoked and reissued permits.
215
203-159 D-8
-------
§122.44
40 CFR Ch. ! (7-1-04 Edition)
shall incorporate each of the applicable
requirements referenced in §§122.44 and
122.45.
(c) Incorporation. All permit condi-
tions shall be incorporated either ex-
pressly or by reference. If incorporated
by reference, a specific citation to the
applicable regulations or requirements
must be given in the permit.
[48 FR 14153. Apr. 1. 1983, as amended at 65
FR 30908, May 15. 2000)
§ 122.44 Establishing limitations,
standards, and other permit condi-
tions (applicable to State NPDES
programs, see § 123.25).
In addition to the conditions estab-
lished under §122.43. each NPDES
permit shall include conditions meet-
ing the following requirements when
applicable.
(a)(l) Technology-based effluent limita-
tions and standards based on: effluent
limitations and standards promulgated
under section 301 of the CWA, or new
source performance standards promul-
gated under section 306 of CWA, on
case-by-case effluent limitations deter-
mined under section 402(a)(l) of CWA,
or a combination of the three, in ac-
cordance with §125.3 of this chapter.
For new sources or new dischargers,
these technology based limitations and
standards are subject to the provisions
of §122,29(d) (protection period).
(2) Monitoring waivers for certain
guideline-listed pollutants.
(i) The Director may authorize a dis-
charger subject to technology-based ef-
fluent limitations guidelines and
standards in an NPDES permit to fore-
go sampling of a pollutant found at 40
CPR Subchapter N of this chapter if
the discharger has demonstrated
through sampling and other technical
factors that the pollutant is not
present in the discharge or is present
only at background levels from intake
water and without any increase in the
pollutant due to activities of the dis-
charger.
(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 re-
issued permit or modification of a re-
issued permit. The request must dem-
onstrate through sampling or other
technical information, including' infor-
mation generated during an earlier per-
mit 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 dis-
charger.
I'ivj 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.
(vi This provision does not supersede
certification processes and require-
ments already established in existing
effluent limitations guidelines and
standards.
(bid) Other effluent limitations and
standards under sections 301, 302. 303,
307, 318 and 405 of CWA. If any applica-
ble toxic effluent standard or prohibi-
tion (including any schedule of compli-
ance specified in such effluent standard
or prohibition) is promulgated under
section 307(a) of CWA for a toxic pollut-
ant and that standard or prohibition is
more stringent than any limitation on
the pollutant in the permit, the Direc-
tor shall institute proceedings under
these regulations to modify or revoke
and reissue the permit to conform to
the toxic effluent standard or prohibi-
tion. See also §122.d(a).
(2) Standards for sewage sludge use or
disposal under section 405(d) of the CWA
unless those standards have been in-
cluded in a permit issued under the ap-
propriate provisions of subtitle C of the
Solid Waste Disposal Act, Part C of
Safe Drinking Water Act. the Marine
Protection. Research, and Sanctuaries
Act of 1972. or the Clean Air Act, or
under State permit programs approved
by the Administrator. When there are
no applicable standards for sewage
sludge use or disposal, the permit may
include requirements developed on a
case-by-case basis to protect public
health and the environment from any
adverse effects which may occur from
toxic pollutants in sewage sludge. If
any applicable standard for sewage
sludge use or disposal is promulgated
under section 405(d) of the CWA and
that standard is more stringent than
any limitation on the pollutant or
216
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Environmental Protection Agency
§122.44
practice in the permit, the Director
may initiate proceedings under these
regulations to modify or revoke and re-
issue the permit to conform to the
standard for sewage sludge use or dis-
posal ,
(3i Requirements applicable to cool-
ing water intake structures at new fa-
cilities under section 316(b) of the
CWA, in accordance with part 125. sub-
part I, of this chapter.
(c) Reopener clause: For any permit
issued to a treatment works treating
domestic sewage (including' "sludge-
only facilities"), the Director shall in-
clude a reopener clause to incorporate
any applicable standard for sewage
sludge use or disposal promulgated
under section 405
-------
§122.44
40 CFR Ch. 1 (7-1-04 Edition)
(A) Establish effluent limits using a
calculated numeric water quality cri-
terion for the pollutant which the per-
mitting authority demonstrates will
attain and maintain applicable nar-
rative water quality criteria and will
fully protect the designated use. Such
a criterion may be derived using a pro-
posed State criterion, or an explicit
State policy or regulation interpreting1
its narrative water quality criterion,
supplemented with other relevant in-
formation which may include: EPA's
Water Quality Standards Handbook.
October 1983, risk assessment data, ex-
posure data, information about the pol-
lutant from the Pood and Drug Admin-
istration, and current EPA criteria
documents; or
(B) Establish effluent limits on a
case-by-case basis, using EPA's water
quality criteria, published under sec-
tion 304(a) of the CWA. supplemented
where necessary by other relevant in-
formation; or
(C) Establish effluent limitations on
an indicator parameter for the pollut-
ant of concern, provided;
(I) The permit identifies which pol-
lutants are intended to be controlled
by the use of the effluent limitation;
(21 The fact sheet required by §124.56
sets forth the basis for the limit, in-
cluding" a finding that compliance with
the effluent limit on the indicator pa-
rameter will result in controls on the
pollutant of concern which are suffi-
cient to attain and maintain applicable
water quality standards;
(3) The permit requires all effluent
and ambient monitoring necessary to
show that during the term of the per-
mit the limit on the indicator param-
eter continues to attain and maintain
applicable water quality standards; and
(4) The permit contains a reopener
clause allowing the permitting author-
ity to modify or revoke and reissue the
permit if the limits on the indicator
parameter no longer attain and main-
tain applicable water quality stand-
ards.
(vii) When developing water quality-
based effluent limits under this para-
graph the permitting authority shall
ensure that:
(A) The level of water quality to be
achieved by limits on point sources es-
tablished under this paragraph is de-
rived from, and complies with all appli-
cable water quality standards; and
(B) Effluent limits developed to pro-
tect a narrative water quality cri-
terion, a numeric water quality cri-
terion, 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 juris-
diction or an appropriate State board
or agency, EPA shall notify the State
that the Agency will deem certifi-
cation 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 condi-
tions in the permit that may be nec-
essary to meet EPA's obligation under
section 301(b)(l)(C) of the CWA;
(4) Conform to applicable water qual-
ity requirements under sect-ion 401
-------
Environmental Protection Agency
§ 122,44
Policy Act, 42 U.S.C. 4321 et seq. and
section 511 of the CWA, when EPA is
the permit issuing authority. (See
§122,29(0).
(e) Technology-based controls for toxic
pollutants. Limitations established
under paragraphs (a), (b). or (d) of this
section, to control pollutants meeting
the criteria listed in paragraph (e)d) of
this section. Limitations will be estab-
lished in accordance with paragraph
(e)(2) of this section. An explanation of
the development of these limitations
shall be included in the fact sheet,
under §124.56(b).
(f) Notification level. A "notification
level" which exceeds the notification
level of §122.42(a)(6>(ii)(C> (24-hour reporting)
shall be listed in the permit. This list
shall include any toxic pollutant or
hazardous substance, or any pollutant
specifically identified as the method to
control a toxic pollutant or hazardous
substance.
(h) Durations for permits, as set forth
in §122.46.
(i) Monitoring requirements. In addi-
tion to §122/18. the following moni-
toring' requirements:
(It To assure compliance with permit,
limitations, requirements to monitor:
(i) The mass (or other measurement
specified in the permit) for each pollut-
ant limited in the permit:
(ii) The volume of effluent discharged
from each outfall;
(iiii Other measurements as appro-
priate including pollutants in internal
waste streams under §122.45(1): pollut-
ants in intake water for net limita-
tions under §122.45(f): frequency, rate
of discharge, etc., for noncontinuous
discharges under §122.45(6): pollutants
subject to notification requirements
under §122.42(a): and pollutants in sew-
age sludge or other monitoring as spec-
ified in 40 CFR part 503; or as deter-
mined to be necessary on a case-by-
case basis pursuant to section 405
of the CWA.
(iv) According to test procedures ap-
proved under 40 CPR part 136 for the
analyses of pollutants having approved
methods under that part, and accord-
ing to a test procedure specified in the
permit for pollutants with no approved
methods.
(2) Except as provided in paragraphs
d){4) and a)s5) of this section, require-
ments to report, monitoring results
shall be established on a ease-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 prac-
tices, requirements to monitor and re-
port results shall be established on a
case-by-case basis with a frequency de-
pendent on the nature and effect of the
sewage sludge use or disposal practice:
minimally this shall be as specified in
10 CFR part 503 (where applicable), but,
in no case IPSS than once a year.
(3) Requirements to report, moni-
toring results for storm water dis-
charges associated with industrial ac-
tivity which are subject to an effluent
limitation guideline shall be estab-
lished 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.
219
-------
§122,44
40 CFR Ch, i (7-1-04 Edition)
(4) Requirements to report moni-
toring results for storm water dis-
charges associated with industrial ac-
tivity (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 na-
ture and effect of the discharge. At a
minimum, a permit for such a dis-
charge must require:
(i) The discharger to conduct an an-
nual inspection of the facility site to
identify areas contributing to a storm
water discharge associated with indus-
trial activity and evaluate whether
measures to reduce pollutant loadings
identified in a storm water pollution
prevention plan are adequate and prop-
erly implemented in accordance with
the terms of the permit or whether ad-
ditional control measures are needed;
(ii) The discharger to maintain for a
period of three years a record summa-
rizing the results of the inspection and
a certification that the facility is in
compliance with the plan and the per-
mit, 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 dis-
charges associated with industrial ac-
tivity from inactive mining operations
may. where annual inspections are im-
practicable, require certification once
every three years by a Registered Pro-
fessional Engineer that the facility is
in compliance with the permit, or al-
ternative 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 non-
compliance not reported under
§122.41(1) (1), (4). (5). and (6) at least an-
nually.
(j) Pretreatment program for POTWs.
Requirements for POTWs to:
(1) Identify, in terms of character and
volume of pollutants. &ny significant
indirect dischargers 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
CPR 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 require-
ments of 40 CFR part 403.
(ii) Provide a written technical eval-
uation of the need to revise local limits
under 40 CFR 403.5(0(1). following per-
mit 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 nec-
essary to assure compliance with Sec-
tion 405 of the CWA.
(k) Beat management practices (BMPs)
to control or abate the discharge of
pollutants when:
(1) Authorized under section 304(e) of
the CWA for the control of toxic pollut-
ants 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 nec-
essary to achieve effluent limitations
and standards or to carry out the pur-
poses and intent of the CWA.
NOTE TO PARAGRAPH (Kj<4): Additional tech-
nical information on BMPs and the elements
of BMPa is contained in the following- docu-
ments: Guidance Manual for Developing- Best
Management Practices (BMPs), October 1993,
EPA No. 833 B-93-OQ4, NT1S No. PB 94-178324.
ERIC No. W498); Storm Water Management
for Construction Activities: Developing- Pol-
lution Prevention Plans and Best Manage-
ment Practices. September 1992. EPA No. 832-
R-92-005, NTIS No. PB 92-235951, EKIC No.
N482K Storm Water Management for Con-
struction 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 Indus-
trial Activities. Developing- Pollution Pre-
vention Plans and Best Management Prac-
tices, September 1992: EPA 832.-R-92-006,
NTIS No. PB 92-235969. ERIC No. N477; Storm
Water Management for Industrial Activities,
Developing Pollution Prevention Plane and
Best Management Practices: Summary Guid-
ance. EPA 833'R-92-Q02, NTIS No. PB 94-
133782: ERIC No. W492. Copies of those docu-
ments (or directions on how to obtain them)
can be obtained by contacting either the Of-
fice of Water Resource Center (using- the
EPA document number as a reference) at
220
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Environmental Protection Agency
§ 122.44
(202) 260-7786: or the Educational Resources
Information Center (ERIC) (using the ERIC
number as a reference) at (800) 276-0462, Up-
dates of these documents or additional BMP
documents may also be available. A list of
EPA BMP guidance documents is available
on the OWM Home Page at hftp:
www.epa.gov/owjn. In addition. States may
have BMP guidance documents.
These EPA guidance documents are
listed here only for informational pur-
poses: they are not binding and EPA
does not intend that these guidance
documents have any mandatory, regu-
latory effect by virtue of their listing
in this note.
(1) Reissued permits, (I) Except as pro-
vided in paragraph (1)(2> of this section
when a permit is renewed or reissued,
interim effluent limitations, standards
or conditions must be at least as strin-
gent as the final effluent limitations,
standards, or conditions in the pre-
vious permit (unless the circumstances
on which the previous permit was
based have materially and substan-
tially changed since the time the per-
mit was issued and would constitute
cause for permit modification or rev-
ocation and reissuance under §122.62.)
(2) In the case of effluent limitations
established on the basis of Section
402(a)(lKB) of the CWA. a permit may
not be renewed, reissued, or modified
on the basis of effluent guidelines pro-
mulgated under section 304(b) subse-
quent to the original issuance of such
permit, to contain effluent limitations
which are less stringent than the com-
parable effluent limitations in the pre-
vious permit.
(1) Exceptions—A permit with respect
to which paragraph sl)(2) of this section
applies may be renewed, reissued, or
modified to contain a less stringent ef-
fluent limitation applicable to a pol-
lutant, if—
(A) Material and substantial alter-
ations or additions to the permitted fa-
cility occurred after permit issuance
which justify the application of a less
stringent effluent limitation:
(B)(J) Information is available which
was not available at the time of permit
issuance (other than revised regula-
tions, guidance, or test methods) and
which would have justified the applica-
tion of a less stringent effluent limita-
tion at the time of permit issuance: or
(2) The Administrator determines
that technical mistakes or mistaken
interpretations of law were made in
issuing the permit under section
402(a)(lMb>:
(CS A less stringent effluent limita-
tion is necessary because of events over
which the permittee has no control and
for which there is no reasonably avail-
able remedy:
(D) The permittee has received a per-
mit modification under section 301(c),
301(g). 301ih). 301(1). 301(k). 301in). or
316
-------
§ 122.45
40 CFR Ch. ! (7-1-04 Edition)
any user, to impose conditions on one
or more users, to issue separate per-
mits, or to require separate applica-
tions, and the basis for that decision,
shall be stated in the fact sheet for the
draft permit for the treatment works.
(n) Grants. Any conditions imposed in
grants made by the Administrator to
POTWs under sections 201 and 204 of
CWA which are reasonably necessary
for the achievement of effluent limita-
tions under section 301 of CWA.
(o) Sewage sludge. Requirements
under section 405 of CWA governing' the
disposal of sewag-e sludge from publicly
owned treatment works or any other
treatment works treating1 domestic
sewage for any use for which regula-
tions have been established, in accord-
ance with any applicable regulations.
(p) Coast Guard. When a permit is
issued to a facility that may operate at
certain times as a means of transpor-
tation over water, a condition that the
discharge shall comply with any appli-
cable regulations promulgated by the
Secretary of the department in which
the Coast Guard is operating, that es-
tablish specifications for safe transpor-
tation, handling, carriage, and storage
of pollutants.
(q) Navigation. Any conditions that
the Secretary of the Army considers
necessary to ensure that navigation
and anchorage will not be substantially
impaired, in accordance with §124.59 of
this chapter.
Requirements for construction
site operators to implement appro-
priate 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 imple-
ment a storm water pollution preven-
tion plan. (A storm water pollution
prevention plan includes site descrip-
tions, descriptions of appropriate con-
trol measures, copies of approved
State. Tribal or local requirements.
maintenance procedures, inspection
procedures, and identification of non-
storm water discharges): and
-------
Environmental Protection Agency
§122.45
ami prohibitions shall be established
for each outfall or discharge point of
the permitted facility, except as other-
wise provided under §122.44( A)
of this section:
(1) The permit shall require the per-
mittee to notify the Director at least
two business days prior to a month in
which the permittee expects to operate
at a level higher than the lowest pro-
auction K-vt-i identified in the permit.
The notice shall specify the antici-
pated level and the period during which
She permittee expects to opera to at the
alternate level. If the notice covers
more than one month, the notice shall
specify the reasons for the anticipated
production level increase. New notice
of discharge at alternate levels is re-
quired to cover a period or production
level not covered by prior notice or. if
during two consecutive- months other-
wise covered by a notice, the produc-
tion level at the permitted facility
does not in fact meet the higher level
designated in the notice.
(2! The permittee shall comply with
the limitations, standards, or prohibi-
: ions that correspond to the lowest
level of production specified in the per-
mit, unless the permittee has notified
the Director under paragraph
-------
§122.45
40 CFR Ch. I (7-1-04 Edition)
(I) Maximum daily and average
monthly discharge limitations for all
dischargers other than publicly owned
treatment works: and
(2) Average weekly and average
monthly discharge limitations for
POTWs.
(e) Non-continuuus discharges. Dis-
charges which are not continuous, as
defined in §122.2. shall be particularly
described and limited, considering the
following factors, as appropriate:
(1) Frequency (for example, a batch
discharge shall not. occur more than
once every 3 weeks):
(2) Total mass (for example, not to
exceed 100 kilograms of zinc and 200
kilograms of chromium per batch dis-
charge):
(3) Maximum rate of discharge of pol-
lutants during the discharge (for exam-
ple, not to exceed 2 kilograms of zinc
per minute): and
(4) Prohibition or limitation of speci-
fied pollutants by mass, concentration,
or other appropriate measure (for ex-
ample, shall not contain at any time
more than 0.1 mg/1 zinc or more than
250 grams (V.t kilogram) of zinc in any
discharge).
(f) Mass limitations. (1) All pollutants
limited in permits shall have limita-
tions, standards or prohibitions ex-
pressed in terms of mass except:
(i) For pH, temperature, radiation, or
other pollutants which cannot appro-
priately 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 limita-
tions 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 cer-
tain 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 per-
mittee to comply with both limita-
tions.
(g) Pollutants in intake water. (1) Upon
request of the discharger, technology-
based effluent limitations or standards
shall be adjusted to reflect credit for
pollutants in the discharger's intake
water if:
(it The applicable effluent limita-
tions arid standards contained in 40
CFR snbchapter 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 wa-
ters.
(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 constitu-
ents of the generic measure in the in-
take water or unless appropriate addi-
tional 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 applica-
ble 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 in-
take 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 envi-
ronmental degradation will result.
(5) This section does not apply to the
discharge of raw water clarifier sludge
generated from the treatment of intake
water.
(h) Internal waste streams. (1) When
permit effluent limitations or stand-
ards imposed at the point of discharge
are impractical or infeasible. effluent
limitations or standards for discharges
of pollutants may be imposed on inter-
nal waste streams before mixing with
other waste streams or cooling water
streams. In those instances, the moni-
toring required by §122.48 shall also be
applied to the internal waste streams.
224
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Environmental Protection Agency
§ 122.47
(2) Limits on internal waste streams
will be Imposed only when the fact
sheet, under §124.56 sets forth the ex-
ceptional circumstances which make
such limitations necessary, such as
when the final discharge point is inac-
cessible (for example, under 10 meters
of water), the wastes at the point of
discharge are so diluted as to make
monitoring' impracticable, or the inter-
ferences among pollutants at the point
of discharge would make detection or
analysis impracticable.
it) Disposal of pollutants into trclln.
into POTWs or by land application. Per-
mit limitations and standards shall be
calculated as provided in §122.50.
[48 FR 14153. Apr. 1, 1983. as amended at 49
PR 38049, Sept. 26. 1984: 50 FR 4514. Jan. 3.1.
1985: 54 FR 258. Jan. 4. 1989: 54 FR 18784. May
2, 1989: 65 FR 30909. May 15. 2000J
§ 122.46 Duration of permits (applica-
ble to State programs, see §123,25),
(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 per-
mit 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 30l(b)(2) (A). (C). and
(B), if the permit includes effluent lim-
itations to meet the requirements of
section 301(b)(2) (A). (C). (13). (E> and
iFi. whether or riot applicable effluent-
limitations guidelines have been pro-
mulgated or approved.
(e) A determination that- a particular
discharger fails within a given indus-
trial category for purposes of setting a
permit expiration date under para-
graph (d) of this section is not conclu-
sive 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 in-
clusion at the time that a permit based
on that determination is formulated.
[48 FR 14153. Apr. 1, 1983. as amended at 49
FR 31842. AUJZ-. 8. 1984: 50 PR t>940. Feb. 19.
1985. 00 FR 33931, June 29. 1995]
5122.47 Schedules of compliance.
(a) Gentral (applicable to State pro-
grams, see §123.25). The permit may.
when appropriate, specify a schedule of
compliance leading to compliance with
CWA and regulations.
(1) Time for compliance. Any schedules
of compliance under this section shall
require compliance as soon as possible.
but not later than the applicable statu-
tory deadline under the CWA.
(2) The first NPDES permit issued to
a new source or a new discharger shall
contain a schedule of compliance only
when necessary to allow a reasonable
opportunity to attain compliance with
requirements issued or revised after
commencement of construction but
less than three years before commence-
ment of the relevant discharge. For re-
commencing 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 recommence-
ment of discharge.
(3) Interim dates. Except, as provided
in paragraph (bMl)lii) of this section, if
a permit establishes a schedule of com-
pliance which exceeds 1 year from the
date of permit issuance, the schedule
shall set forth interim requirements
and the dates for their achievement,
(i) The time between interim dates
r-hall 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.
lit) If the time necessary for comple-
tion of any interim requirement (such
as the construction of a control facil-
ity) is more than 1 year and is not
readily divisible into stages for com-
pletion, the permit shall specify in-
terim dates for the submission of re-
ports of progress toward completion of
the interim requirements and Indicate
A projected completion date,
NOTK; Examples of interim requirements
uiciude: (a) Submit a complete Step 1 con-
struction grant i.for POTWsc (b) let a con-
tract for construction of required facilities:
u-> commence construction of required facili-
'ies: ((J) complete construction oi required
facilities,
<4) Reporting. The permit shall be
written to require that no later than 14
225
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§122.48
40 CFR Ch. 1 (7-1-04 Edition)
days following each interim date and
the final date of compliance, the per-
mittee shall notify the Director in
writing of its compliance or non-
compliance with the interim or final
requirements, or submit progress re-
ports if paragraph (anSXii) is applica-
ble.
(b) Alternative schedules of compliance.
An NPDES permit applicant or per-
mittee may cease conducting regulated
activities (by terminating' of direct dis-
charge for NPDES sources) rather than
continuing to operate and meet permit
requirements as follows:
(1) If the permittee decides to cease
conducting regulated activities at a
given time within the term of a permit
which has already been issued:
(i) The permit may be modified to
contain a new or additional schedule
leading to timely cessation of activi-
ties; or
Cii) The permittee shall cease con-
ducting 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 per-
mit shall contain a schedule leading to
termination which will ensure timely
compliance with applicable require-
ments 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 sched-
ules as follows:
(i) Both schedules shall contain an
identical interim deadline requiring a
final decision on whether to cease con-
ducting regulated activities no later
than a date which ensures sufficient
time to comply with applicable re-
quirements in a timely manner if the
decision is to continue conducting reg-
ulated activities:
-------
Environmental Protection Agency
§122.50
of particular permit conditions or re-
quires the denial of a permit, those re-
quirements also must be followed,
fa) The Wild and Scenic Rivers Act, 16
U.S.C. 1273 et seq. section 7 of the Act
prohibits the Regional Administrator
from assisting by license or otherwise
the construction of any water re-
sources project that would have a di-
rect- adverse effect on the values for
which a national wild and scenic river
was established.
(bj The National Historic I'mserrution
Act of 1966, 16 U.S.C. 470 et seq. section
106 of the Act and implementing regu-
lations (36 CFR part 800} require the
Regional Administrator, before issuing
a license, to adopt measures when fea-
sible to mitigate potential adverse ef-
fects of the licensed activity and prop-
erties listed or eligible for listing in
the National Register of Historic
Places. The Act's requirements are to
be implemented in cooperation with
State Historic Preservation Officers
and upon notice to, and when appro-
priate, in consultation with the Advi-
sory Council on Historic Preservation.
(c) The Endangered Species Act, 16
U.S.C. 1531 et seq. section 7 of the Act
and implementing regulations (50 CFR
part 402) require the Regional Adminis-
trator to ensure, in consultation with
the Secretary of the Interior or Com-
merce, that any action authorized by
EPA is not likely to jeopardize the con-
tinued existence of any endangered or
threatened species or adversely affect
its critical habitat.
(dj The Coastal Zone. Management Act,
16 U.S.C. 1451 et seq, section 307nj> of
the Act and implementing regulations
(15 CFR part 930) prohibit EPA from
issuing a permit for an activity affect-
ing land or water use in the coastal
zone until the applicant certifies that
the proposed activity complies with
the State Coastal Zone Management
program, and the State or its des-
ignated agency concurs with tht- cer-
tification (or the Secretary of Com-
merce overrides the State's rionconcur-
rence),
(e) The Fish and Wildlife Coordination
Act, 16 U.S.C. 661 et seq., requires that
the Regional Administrator, before
issuing a permit proposing or author-
izing the impoundment (with certain
exemptions), diversion, or other con-
trol or modification of any body of
water, consult with the appropriate
State agency exercising jurisdiction
over wildlife resources to conserve
those resources.
(f) Executive orders, [Reserved]
(g) The National Environmental Pol-
icy Act. 42 U.S.C. 4321 et seq.. may re-
quire preparation of an Environmental
Impact Statement and consideration of
EIS~related permit conditions (other
than effluent limitations) as provided
in § 122.29ic).
'Clean Water Act <33 U.S.C, 1251 c.l seq.). Safe
Drinking Water Act (42 U.S.C. 3001' et seq.},
Clean Air Art 1-42 L'.S.C. 7401 et .«•£/.(, Re-
source Conservation and Recovery Act (42
U.S.C. 6901 rt seq.)}
|« FK 14153. Apr. I. 1983, as Amended at 48
FR 39620. Sept. 1. 1983: 49 FR 38050, Sept, 26,
1984!
§ 122,30 Disposal of pollutants into
wells, into publicly owned treat-
ment works or by land application
(applicable to State NPDES pro-
grams, see § 123.25).
(a) When part of a discharger's proc-
ess wastewater is not being discharged
into waters of the United States or
', ontig'uous 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, appli-
cable effluent standards and limita-
tions 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 cal-
culated by one of the following meth-
ods:
(1) If none of the waste from a par-
t icular process is discharged into wa-
ters of the United States, and effluent
limitations guidelines provide separate
allocation for wastes from that proc-
ess, all allocations for the process shall
be eliminated from calculation of per-
mit effluent limitations or standards.
(2) In all cases other than those de-
scribed in paragraph (a Hi) of'this sec-
tion, effluent limitations shall be ad-
justed by multiplying the effluent limi-
tation derived by applying effluent
limitation guidelines to the total waste
stream by the amount of wastewater
flow to be treated and discharged into
221
-------
§122,61
40 CFR Ch. i (7-1-04 Edition)
waters of the United States, and divid-
ing the result by the total wastewater
flow. Effluent limitations and stand-
ards so calculated may be further ad-
justed under part 125. subpart D to
make them more or less stringent, if
discharges to wells, publicly owned
treatment works, or by land applica-
tion change the character or treat-
ability of the pollutants being dis-
charged to receiving waters. This
method may be algebraically expressed
as:
T
where P is tlie permit effluent limitation. E
is the limitation derived by applying' effluent
guidelines to the total wasteatream, N is the
wastewater flow to be treated and discharged
to waters of the United States, and T is the
total wastewater flow.
ib) Paragraph (a) of this section does
not apply to the extent that promul-
gated effluent limitations guidelines:
(1) Control concentrations of pollut-
ants discharged but not mass; or
(2) Specify a different specific tech-
nique for adjusting effluent limitations
to account for well injection, land ap-
plication, 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.
[48 PE 14153, Apr. 1, 1983, as amended at 49
FR 38050. Sept. 26, 1984]
Subpart D— Transfer, Modification,
Revocation and Reissuanee,
and Termination of Permits
§ 122,61 Transfer of permits (applica-
ble to State programs, see § 123.25).
(a) Transfers by modification. Except
as provided in paragraph (b) of this sec-
tion, a permit may be transferred by
the permittee to a new owner or oper-
ator only if the permit has been modi-
fied or revoked and reissued (under
§122.62(b)(2)), or a minor modification
made (under §122.83(d)), to identify the
new permittee and incorporate such
other requirements as may be nec-
essary under CWA,
(b) Automatic transfers. As an alter-
native to transfers tinder paragraph (a)
of this section, any XPDES permit may
be automatically transferred to a new
permittee if:
(1) The current permittee notifies the
Director at least 30 days in advance of
the proposed transfer date in paragraph
(b)(2) of this section;
(2) The notice includes a written
agreement between the existing and
new permittees containing a specific
date for transfer of permit responsi-
bility, coverage, and liability between
them; and
(3) The Director does not notify the
existing permittee and the proposed
new permittee of Ms or her intent to
modify or revoke and reissue the per-
mit. A modification under this sub-
paragraph may also be a minor modi-
fication under §122.63. If this notice is
not received, the transfer is effective
011 the date specified in the agreement
mentioned in paragraph (b)(2) of this
section.
S 122.62 Modification or revocation
and reissuance of permits (applica-
ble to State programs, see § 123.25).
When the Director receives any infor-
mation (for example, inspects the facil-
ity, receives information submitted by
the permittee as required in the permit
(see §122.41), receives a request for
modification or revocation and
reissuance under fiiM.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 per-
mit accordingly, subject to the limita-
tions of §124.5
-------
Environmental Protection Agency
§122.62
public review. Otherwise, a draft per-
mit must be prepared and other proce-
dures in part 124 (or procedures of an
approved State program) followed,
(a) Causes for modification. The fol-
lowing are causes for modification but
not revocation and reissuance of per-
mits except when the permittee re-
quests or agrees.
(1) Alterations. There are material and
substantial alterations or additions to
the permitted facility or activity (in-
cluding a change or changes in the per-
mittee's sludge use or disposal prac-
tice) which occurred after permit
issuance which justify the application
of permit conditions that are different
or absent in the existing permit.
NOTK: Certain rec-onst.ruction activities
may cause the new source provisions of
§122,29 to be applicable,
(2) Information. The Director has re-
ceived new information. Permits may
be modified during their terms for this
cause only if the information was not,
available at the time of permit
Issuance (other than revised regula-
tions, guidance, or test methods) and
would have justified the application of
different permit conditions at the time
of issuance. For NPDES general per-
mits (§122.28) this cause includes any
information indicating that cumu-
lative effects on the environment are
unacceptable. For new source or new
discharger NPDES permits §§122.21.
122,29), this cause shall include any sig-
nificant information derived from ef-
fluent testing required under
§122,21(k)(5)(vi) or §122.21 (minor modifica-
tions) and paragraph (ait 14) of this sec-
tion (NPDES innovative technology),
{5> When the permittee has filed a re-
quest for a variance under CWA section
301(0. 301(g). 301(h), 30I(i). 301(k>. or
316(a) or for "fundamentally different
factors" within the time specified in
§122.21 or §125.27(a),
(6) 307(a) toxics, When required to in-
corporate an applicable 307(a) toxic ef-
fluent standard or prohibition (see
§122.44(b)).
(7) Reopencr. When requii'ed by the
' reopener" conditions in a permit,
which are established in the permit
under § 122.44!b) (for CWA toxic effluent;
limitations and standards for sewage
sludge use or disposal, see also
§122.44(c>) or 40 CFR §403.10(e>
(pretreatment program).
229
-------
§122.63
40 CFR Ch. I (7-1-04 Edition)
(8)(i) Net limits. Upon request of a per-
mittee who qualifies for effluent limi-
tations on a net basis under §122.45(g).
fii) When a discharger is no longer el-
igible for net. limitations, as provided
in§122.45(g)(l)(ii).
(9) Pretreatment. As necessary under
40 CFR 403.8(e) (compliance schedule
for development of pretreatment pro-
gram).
(10) Failure to notify. Upon failure of
an approved State to notify, as re-
quired "by section 402(b)(3). another
State whose waters may be affected by
a discharge from the approved State,
(11) Non-limited pollutants. When the
level of discharge of any pollutant
which is not limited in the permit ex-
ceeds the level which can be achieved
by the technology-based treatment re-
quirements appropriate to the per-
mittee under §125.3(c).
(12) Notification levels. To establish a
"notification level" as provided, in
§122.44(f).
(13) Compliance schedules. To modify a
schedule of compliance to reflect the
time lost during construction of an in-
novative or alternative facility, in the
case of a POTW which has received a
grant under section 202(a)(3) of CWA for
100% of the costs to modify or replace
facilities constructed with a grant for
innovative and alternative wastewater
technology under section 202(a)(2). In
no case shall the compliance schedule
be modified to extend beyond an appli-
cable CWA statutory deadline for com-
pliance.
(14) For a small MS4. to include an
effluent limitation requiring imple-
mentation of a minimum control meas-
ure or measures as specified in
§122.34(b) when:
(i) The permit does not include such
measure! s) based upon the determina-
tion that another entity was respon-
sible for implementation of the re-
quirement(s): and
(ii) The other entity fails to imple-
ment rneasure(s) that satisfy the re-
quirement(s).
(15) To correct technical mistakes,
such as errors in calculation, or mis-
taken interpretations of law made in
determining permit conditions,
(16) When the discharger has in-
stalled the treatment technology con-
sidered by the permit writer in setting
effluent limitations imposed under sec-
tion 402(a)(l) of the CWA and has prop-
erly operated and maintained the fa-
cilities but nevertheless has been un-
able to achieve those effluent limita-
tions, In this case, the limitations in
the modified permit may reflect the
level of pollutant control actually
achieved (but shall not be less strin-
gent than required by a subsequently
promulgated effluent limitations
guideline).
(17) [Reserved]
(18) Land application plans. When re-
quired by a permit condition to incor-
porate a land application plan for bene-
ficial reuse of sewage sludge, to revise
an existing land application plan, or to
add a land application plan.
(b) Causes for modification or revoca-
tion and reissuance. The following are
causes to modify or, alternatively, re-
voke and reissue a permit:
(1) Cause exists for termination
under §122.64, and the Director deter-
mines that modification or revocation
and reissuance is appropriate.
(2) The Director has received notifi-
cation (as required in the permit, see
§122.41(1x3)) of a proposed transfer of
the permit. A permit also may be modi-
fied to reflect a transfer after the effec-
tive date of an automatic transfer
(§122.61(b)> but will not be revoked and
reissued after the effective date of the
transfer except upon th« request of the
new permittee.
[48 FR 14153, Apr. 1. 1983. as amended at 49
FR 25981. June 25. 1984; 49 FR 37009, Sept. 29.
1984: 49 FR 38050, Sept. 26. 1984: 50 FR 4514,
Jan. 31, 1985: 51 FR 20431, June 4, 1986: 51 FR
26993, July 28. 1986: 54 FR 256, 258. Jan. 4, 1989:
54 FR 18784, May 2. 1989: 60 FR 33931. June 29,
1995: 84 FR 68847, Dec. 8. 1999: 65 FR 30909,
May 15, 2000]
§ 122.63 Minor modifications of per-
mits.
Upon the consent of the permittee,
the Director may modify a permit to
make the corrections or allowances for
changes in the permitted activity list-
ed in this section, without following
the procedures of part 124. Any permit
modification not processed as a minor
modification under this section must
be made for cause and with part 124
draft permit and public notice as re-
quired in §122.62. Minor modifications
may only:
230
-------
Environmental Protection Agency
Pt, 122, App. A
(a) Correct typographical errors:
(b) Require more frequent monitoring
or reporting by the permittee:
t'c.t Change an interim compliance
date in a schedule of compliance, pro-
vided the new date is not more than 120
days after the date specified in the ex-
isting permit and does not interfere
with attainment of the final compli-
ance 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 nec-
essary, provided that a written agree-
ment containing a specific dale for
transfer of permit, responsibility, cov-
erage, and liability between the cur-
rent and new permittees lias been sub-
mitted to the Director.
(exl) Change the construction sched-
ule for a discharger which is a new
source. No such change shall affect a
discharger's obligation to have all pol-
lution 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 ter-
minated and does not, result in dis-
charge of pollutants from other out-
falls except in accordance with permit
limits.
(f) [Reserved]
(gi Incorporate conditions of a POTW
pretreatment program that, has been
approved in accordance with the proce-
dures in 40 CFB 403.11
-------
Pt. 122, App. C
40 CFR Ch. I (7-1-04 Edition)
section 301
-------
Environmental Protection Agency
Pt. 122, App. D
TABLE I— TESTING REQUIREMENTS FOR OR-
GANIC Toxic POLLUTANTS BY INDUSTRIAL
CATEGORY FOR EXISTING DISCHARGERS —
Continued
;jA pentachlorophenol
10 A phenol
11A 2.4.6-t.fu;hlorophcnol
GC/MS Fraction'
Industrial category
: Volatile
-f—• ••
Acid
Printing and Pub- i - i
•sshing '- :i -' \ '' '*
Pulp and Paper Mills '• -' •• ! '•"
Rubber Processing ..-. ~- ;
Soap and Detergent
Manufacturing "- : '-
Steam Eleclric Power , i
Plants ' -' i 'J *
Textile Mills ', :i I " ' •' -
Timber Products J '•
Processing ; i " ;
1 The toxic poilutants in each traction are listed in Taots il.
2 Testing required
TABLE II-ORGANIC Toxic POI.MTANTS IN
EACH OF FOUR FKArTioxs IN AXALY.-OM w
GA> CHROMATOGKAJ'ii.Y MASS Sj-'BCTKi i-^Cni'V
(GS MS)
IV
2V
3V
5V
6V
7V
8V
9V
10V
11V
12V
14V
15V
16V
17V
18V
19V
20V
21V
22V
23V
24V
25V
26V
27V
28V
29V
31V
1A
2A
3A
4A
5A
6A
7A
8A
acrolein
acrylonitrlle
benzene
Hromoform
carbon tetrachloride
chlorobenzene
chlorodibromometliaiie
chloroethane
2-chloroethyl vinyl ether
chlorolorrn
dichlorohromomethane
Ll-dichloroethane
1.2-dichloroethane
1 .l-dichloroethylene
1.2-dichloropropane
1.3-dichloropropylene
ethylbenzene
methyl bromide
methyl chloride
methylene chloride
1.1.2.2-tetrachloroethane
tetrachloroetliylene
toluene
1.2-trans-dichloroethylene
1.1,1-trichloroethane
1.1,2-trtchloroet-hane
crichloroethylene
vinyl chloride
2-chlorophenol
2.4-dichlorophenol
2.4-dimethylphenol
4,6-dinitro-o-cresol
2.4-dinltrophenol
2-nitrophenol
4-nit.rophenol
p-ehloro-m-eresol
;B
2B
3B
IB
5B
6B
7B
3B
9B
LOB
LIB
12B
13B
11B
15B
16B
17B
18B
19B
20B
21B
22B
23B
24B
25B
26B
27B
28B
29B
30B
31B
32B
33 B
34B
35B
36B
37B
38B
39B
4GB
41B
42B
43B
44B
15B
46B
IP
2P
3P
•IP
5P
6P
7P
8P
9P
10P
UP
12P
13P
acenaphUieiif
acena phthylene
anthraoKne
bensiduiK
benzo: a lant'hnu'eiK-1
benzoi a ipyrnne
3.4-beiizofluorantht'ne
benzsi s'hi tperylene
benzoi k >fluoranthene
biaf 2-ehloroethoxy tmethane
bis(2-cliloroethyl let-her
bis(2-chloroisopropyl tether
bis (2-ethylhfxyl (phthalate
4-bromopheuyl phenyl ether
butylbenzyl phthalate
2-chloronaphthalene
4-chloi'opheiiyl phenyl ^ther
chrysene
dibenzo(a.bianv.hilat.ien*r
1.2-dichlorobenzene
1.3-dkiiiorobeii2enr-
1,4-dirhlorobenzene
3.3'-dich)orobenzidine
diethyl phthalafe
dimethyl phthalate
di-ii-buty] phthalate
2.4-dinitro toluene
2,6-dinit rotolucne
iii-n-oi",yl phthalate
1.2-diphenylhydrazin;» i.as azoV>enzenei
fluroranthene
Huorene
hexachlorobenzene
hexachlorobutacliene
hexachiorocyclopentadiene
hexachioroe thane
iudenod.2.3-cdipyi-ene
isophorone
napthalene
nitrobenzene
N-nitroHodioie.thylamine
N-nitrosodi-ti-propylamiiie
N-nitrosodiphenylamir.e
phenanthrenp
pyrene
l,2,4-tnch!orobenzene
r'.'tticidcs
alclrin
aipha-BHC
beta-BHC
Kanima-BHC
delta-BHO
chlordane
4.4'-DDT
4,4'-DDE
4.4'-DDD
dieldriri
alpha-end os tili'an
beta-endosulfan
endosulf:in sulfate
233
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Pi 122, App. D
40 CFR Ch. I (7-1-04 Edition)
14P endrin
15P endrin aldehyde
16P heptaehlor
17P heptachlor epoxide
18P PCB-1242
19P PCB-1254
20P PCB-1221
21P PCB-1232
22P PCB-1248
23P PCB-1260
24P PCB-1016
25P toxaphene
TABLE III—OTHER Toxic POLLUTANTS i MET-
ALS AND CYAXIDE) AND TOTAL PHKXOI.S
Antimony, Total
Arsenic. Total
Beryllium. Total
Cadmium, Total
Chromium, Total
Copper. Total
Lead, Total
Mercury, Total
Nickel, Total
Selenium, Total
Silver, Total
Thallium. Total
Zinc, Total
Cyanide, Total
Phenols, Total
TABLE IV—CONVENTIONAL AND NOXCX>.NVKX-
TIOKAL POLLUTANTS REQUIRED To BE TKKT-
ED BY EXISTING DISCHARGER;-, IP EX:'ECTED
TO BE PRESENT
Bromide
Chlorine. Total Residual
Color
Fecal Coliform
Fluoride
Nitrate-Nitrite
Nitrogen. Total Organic
Oil and Grease
Phosphorus, Total
Radi oac ti vi ty
Sulfate
Sulfide
Sulfite
Surfactants
Aluminum, Total
Barium. Total
Boron. Total
Cobalt, Total
Iron, Total
Magnesium, Total
Molybdenum, Total
Manganese. Total
Tin. Total
Titanium. Total
TABLE V—Toxic POIJ.VTAXTS AND H.XX.AHWH'S
SUBSTANCES REQUIRED To BE IDENTIFIED nv
EXISTING DISCHARGERS IF EXPKCTMI) To BK
PHESKKT
Toxic Pollutants
Asbestos
Hazcirdous Substances
Acetaldehyde
Allyl alcohol
Allyl chloride
Amy! acetate
Aniline
Benzonitrile
Benzyl chloride
Butyl acetate
Butylamine
Captan
Carbaryl
Carbofuran
Carbon disulfide
Chlorpyrifos
Coumaphos
Cresol
Crotonaldehyde
Cyclohexane
2,4-D (2.4-Dichlorophenoxy acetic acid)
Diazinon
Dicamba
Dichlobenil
Dichlone
2,2-Dichloropropionic acid
Dichlorvos
Diethyl amine
Dimethyl amine
Dintrobenzene
Diquat
Disulfoton
Diuron
Bpichlorohydrin
Ethion
Ethylene diamine
Ethylene di bromide
Formaldehyde
Furfural
Guthion
Isoprene
Isopropanolamine Dodecylbenzenesulfonate
Kelthane
Kepone
Malathion
Mercaptodimethur
MethoxychJor
Methyl mercaptan
Methyl methacrylat*
Methyl pai'athion
Mevinphos
Mexacarbate
Monoethyl amine
Monomethyl a.mine
Naled
Napthenic acid
Kitrotoluene
Para t hi on
Phenolsulfanate
Phosgene
Propartrtte
Propylene oxide
Pyi'ethrins
Quinoline
Re.sorcinol
Strontium
Strychnine
Styrene
2.4,5-T (2.4.5-Trichlorophenoxy acetic acid)
TDE (Tetrachlorodiphenylethanei
234
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Environmental Protection Agency
2.-1.5-TP [2-i2.15-Trichlorophenoxy) pro-
panoic acid]
Tnchlarofan
Triethanolamine dode.e-ylbenzenpsulfon.it-'1
Trietliylamiiie
Tri met hy lam ine-
Uranium
Vanadium
Vinyl acetate
Xylene
Xylenol
Zirconium
[Note 1: The Environmental Protection
Ag'encv has suspended the requirements of
§122.2Iitt'S(7KiiKA) and Table I of Appendix D
a.s they apply to certain industrial cat-
egories. The suspensions ar« as follows:
"a. At 46 FR 2046. Jan. B. 19B1. the Environ-
mental Protection Agency suspended until
further notice §122,2i(g KTKiinA) as it, applies
to coal mines.
b. At. -16 FR 22585. Apr. 20, 1981. the Environ-
mental Protection AK'euc.y suspended until
further notice (;122,2l!g'}(7)(ii)iA) and the cor-
responding portions of Item V-C of the
NPl.'ES application Form 2c as they apply
to:
1. Testing and reporting' for all four or-
ganic fractions in the Greise Mills Sub-
cat v-gury of the Textile Mills industry (Sub-
part C—Low water us^ processing of '10 CFR
par' 410), and testing' and reporting lor the
pesticide fraction in ail other subcatt'Hortes
of this industrial catetror.v.
2 Testing and reporting for the voUrile.
base neutral and pesticide fractions in tht
Base and Precious Metals Sube.iteg'ory of the
Ore Mining and Dressing industry (subpart B
of 40 CFR part 4-lOi. and testing' and reporting'
for all four fractions in all other subcut-
eg'ories of this industrial category.
3. Testing and reporting' for all four GO MS
fi-actions ;.n the Porcelain Enameling' indus-
try.
c. At 46 FR 35090. July 1, 1981. the Environ-
mental Protection Agency suspended until
further notice §]22.21(g')(7xii)(A) and the cor-
responding portions of Item V-C of ihe
NPDE/S application Form 2c as they apply
to:
1. Testing' and reporting: for the pesticide
fraction in the Tall Oil Rosin Subcates'ory
tsubpart D) and Rosin-Based Derivatives
Subcatetrory (subpart F; of the Gum and
Wood Chemicals industry (40 CFR pan 454).
and testing and reporting for the pesticide
and base aetaral fractions in all other sub-
categories of this industrial category.
2. Testing and reporting for the pesticide
fraction in the Leather Tanning and Fin-
1 shiny. Paint and fnk Formulation, and Pho-
tographic Supplies industrial categories-;.
3. Testing and reporting for the acid, base
neutral and pesticide fractions in the Petro-
leum Refining industrial category.
i. Testing and reporting for the pesticide
fraction in the Papergrade Sulfite s-'ubcat-
Pt. 122, App. D
cK'orles (snhparts J and I!) of the Pulp and
Paper industry <-10 CFR part 130); testing and
: eportiag for the base neutral and pesticide
iractions in the following subcateg'ories:
Deink isabptirt Qj. Dissolving Kraft < subpart
F). and Paperboard from Waste Paper i sub-
pit rt E): testing' and reporting' for the vola-
tile, base neutral and pesticide fractions in
the following subcateg'ories, BCT Bleached
Kraft (subpart Hi. Semi-Chemical isubparus
B and C). and NoriintegTated-Fine Papers
' subpart Ri: and testing and reporting for the
.uric!, base neutral and pesticide fractions in
the following sui.cate.aories: Fine Bleached
Kraft (sut'ipart 1:, Dissolving Suiiite Pulp
• subpart Ki. G-ioundwooil-Fine Papers (sub-
part Oi. Market Bleached Kraft (subpart Gi.
Tissue from Wastepaper isubpavt T'.. and
Xonintegratt-d-Tissue Papers ;subpart Si.
5. Testing and reporting for the base-neu-
tral fraction in the Once-Through Cooling
Water. Fly Ash and Bottom Ash Transport
Water- process wastestreains of the Steam
sjlpctric Pt.wer Plant, industrial category.
This ttfvisiiMi continues these suspension."-.!*
For the duration of the suspensions, there-
!:-re. Table 1 Affectively reads.
TABLE I—TESTING REQUIREMENTS FOR OR-
GANIC Toxic POLLUTANTS BY INDUSTRY CAT-
EGORY
Pes-
Adhesiviis and sealants
AJutTiinum forfiHig
4uto and other lauridrieh .
Battery manufaclnnng . .
Coal mining
Coil coating ...
Copper forming
Bectnc and elective
compounds
f:!ectroplating
Explosives manufaotunrig
Foundries
Gum and *vood ial; sub-
parts except D and F) .
Subpart D—!a!> o^ rosfn
Subpaft F—rosn-bssed
derivatives
Inorganic chemicals manu-
facturing ... . . ..
Iron and steei manufac-
turing
Leather tanning and fin
ishing
Mechanical products man-
ufacturing .
Nonferrous metals rncinu-
fsc*unng ...
C!re mining (appi'es to the
base aid precious fpet-
als/Subpart Bi
"Editorial Not-?: The words "Thih revision"
refer Lo the document published at 48 FR
141.53. Apr. 1. 1983.
235
-------
Pt. 122, App, E
TABLE I—TESTING REQUIREMENTS FOR OR-
GANIC Toxic POLLUTANTS BY INDUSTRY CAT-
EGORY—Continued
GC.'MS fractionl
industry category
Organic chemicals manu-
facturing
Paint and ink formulation ,.
Pesticides
Petroleum refining
Pharmaceutical prepara-
tions
Photographic equipment
and supplies
Plaslic and synthetic mate-
rials manufacturing
Piastic processing
Porcelain enameling
Printing and publishing
Pulp and paperDoard ;
mills—see footnote3
Rubber processing
Soap and detergent manu-
facturing
Steam electric power
plants -
Textile mills (Subpart C—
Greige Mills are exempt
train this table)
Timber products proc-
essing
' Testing required.
Vola-
tile
C)
n
C1)
Neu-
tral
Pes-
ticide
C)
40 CFR Ch. I (7-1-04 Edition)
•-The pollutants in each fraction are listed in Item V-C
-" Pulp and Paperboard Mills:
' GS/MS tractions
Suboart •' _ Base/ .'
J VOA Acid . neu-
i '• tral
Pes-
ticides
, D
' E
F
G
_ H
• J
K
L
M
N
O
P __
Q
. P
-S
T : n -.('•)' :' I (
u ^.^ : n n i _n [
° Must lest.
* Do not last unless "reason to believe" it is discharged
•-Subparls are defined in 40 CFP Part 430.
148 FR 14153, Apr. 1. 1983, as amended at 49
FR 38050, Sept. 26. 1981: 60 FR 6940. Feb. 19.
1985)
APPKMDIX E TO PART 122— RAINFALL ZONE* OF THE UNITED STATKH
Not Shown: Alaska (Zone 7t: Hawaii (Zone 7r. 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).
236
-------
Environmental Protection Agency
Pt. 122, App, G
i."i>i,'f(.<'' Methodology lor Analysis of Detention Basins (ur Cyiitrol •:>( Urlmu Runoff Quality.
prepared for U.S. Environmental Protection Aeency. Oiiici-: of Wjuer. Nonpoint Souice Divi-
si on. \Vashinglon. DC, 158ft.
[55 PR 48073. Nov. 16. 1990]
FKNDix P TO PART 122- INCUR-
PORATKI) FLACKS WITH POPULATION'S
GHKATER THAN 250.000 ACCORDING
TO THE 1990 DKC'KN'XiAL CKNM/S BY
THE BKHKAT OF THI: CKX.ST.H
State
Alabama
Arizona
California
Colorado
District of Columbia..
Fiorda
Georgia
Illinois
Indiana
Kansas
Kentucky
Louisiana
Maryland
Massachusetts
Michigan
Minnesota . . , .
Missouri
Nebraska
New Jersey
New Mexico ...
Naw York
North Carolina
Ohio
CMahoma
Oregon
Pennsylvania .
Tennessee . . ..
Texas
Virginia
Washington
Wisconsin
inoorpo'ated Plact
. Birmingham.
. • Phoenix.
Tucson
Long Beach
Los Argeles
. Oakland.
•• Sacramento.
' San Diego.
San Francisco.
San Jose
Denver.
. Jacksonville.
; Miami.
Tampa.
. • Atlanta
. : Chicago.
'• Indianapolis
. ; Wichita.
. i Louisville.
. New Orleans
. . Baltimore.
; Boston.
. , Detroit.
. i Minneapolis.
St Paul.
• Kansas City
; St. Louis.
. Omaha.
; Newark.
. j Albuquerque.
. ! Buffalo.
I Bronx Borough
! Brooklyn Borough.
' Manhattan Borough
; Queens Borough
i Slaten island Borough.
j Charlotte.
. ' Cincinnati.
; Cleveland.
Columbus.
Toledo.
' Oklahoma City.
I Tulsa.
. ! Portland.
. j Philadelphia
Pittsburgh
Memphis
[ Nashviile.-'Davidson.
. : Austin.
I Dailas.
! E! Paso.
' Fort Worth
; Houston
- San Antonic.
Non'olk.
! Virginia Beach.
1 Seattle.
;')-! FK 68U--57. Dec. 8, 1999. aB ymenuecl it* 67
V'Pv 17152. July 17. 2002!
APPKXIHX O TO PART l2U--I\(.'un-
!'ttH,ATr,i) I'l.AC'KS WlTf! P(>l'l'j.ATI(iX^
Gui-..-\T!-:(-; THAX 100.000 Err LKSS
THAN 250.000 ACOOHDIXG TO IHK 1990
DKC/KXNI.AI, CKNsrs BY THK BI/KVA'
Alabama
Alaska .
Arizona .
Colorado
Connecticut .
Florida
Georgia
Idaho .
Illinois
Indiana
Mobile.
Anchooge.
Mesa
Little Rock
Anaheim.
' BaKersfieid.
Berkeley.
Chula Vista
Concord.
El Monte.
Escondido
Fremont.
Fresno
Fullertor.
Garden Grove.
Gtendaie.
Hayward
Huntington Beacii.
Inglewood.
Irvine.
Modesto.
Moreno VaHey.
Oceanside
Ontario.
Orange.
Aurora.
Colorado Springs
Lakewood.
i Pueblo,
I Bridgeport.
': Hartford,
New Haven-
Stamford,
• Waterbury.
i Fort Lauderdale.
! Hialeah,
i Hollywood
: Orlando,
31. PeEeisburg
Tallahassee.
Columbus
Macun
i Savannah
: Boise City
Peoria.
Rocktord
Fort Wayne
Gary
South Sertd.
Cedar Rapids.
Davenport.
237
-------
Pt. 122, App. H
40 CFR Ch. I (7-1-04 Edition)
Massachusetts
Michigan
Mississippi ..
Missouri . ...
Nebraska ..
Nevada
New Jersey
New York
North Carolina
Oregon
Pennsylvania ..
Rhode Island ,
Soulh Carolina
Tennessee
Texas
Utah ....
Virginia
Washington
Wisconsin
Des Meines,
Kansas City.
TopeKa.
• Lexington Favett
j Baton Rouge,
| Shrevepon
Springfield.
Worcester
Ann Arbor.
! flint.
] Grand Rapids
I Lansing.
Livonia.
Sterling Heights
I Warren.
I Jackson.
! Independence
Springfield.
Lincoln.
I Las Vegas
; Reno,
\ Elizabeth.
Jersey City.
Paferson.
I Albany.
I Rochester
j Syracuse.
'. Yonkers.
Durham.
; Greensboro.
! Raleigh.
Winston-Salem.
Akror.
Dayton.
Youngstown.
Eugene.
Allentown
Erie.
Proyidence.
Coiumbia.
Chattanooga.
Knoxviile.
i Abilene.
| Amaniio
' Arlington.
, Beaumont.
i Corpus Christ!.
GarianG.
Irving.
Laredo.
LuDbock.
Mesquue.
Pasadena.
Piano.
Waco.
1 Salt Lake City.
: Alexandria.
; Chesapeake.
i Hampton.
J Newport News.
I Portsmouth
I Richmond.
• PoanoKe.
' Spokane.
Taeoma.
Madison.
t'KNhix H TO PAKT 122—Cor.vnr.s
v.Ti'H UNiNC'oju'ouATKri UHBAMZKD
AKKA.- WITH A POPIT.ATIOX OF
250.000 OK MORE ACCORDING TO THE
1990 DF.CKXXiAL CKXHl'H BY THE Bl"-
HKAT OF THE
State
California
Delaware . .. . , .......
Florida . , ,-.. ..........
Georgia . ,
Hawaii
Marvfand
Uninoo
CG"ntv • P°ra'en ur"
u * i banized pop-
; ulation
Los Angeles , 886 780
Sacramento 594.889
San Diego • 250,414
Newcastle '• 298.996
Dade • 1,014.504
DeKalb 448.686
Honolulu1 114
506
Anne Arundel 344. 65^
Baltimore ,,,,...,, i 527,593
Texas
Utah
Virginia
Washington
Montgomery •. 599,028
Prince George's ! 494,369
Harris 72Q.206
Salt Lake 270. 98S
Fairfax ; 760
730
King | 520,468
'County was previously listed in this appendix, however,
population dropped to Below 250,000 in the 1990 Census.
[64 FR 68848, Deo. 8, 19991
APPENDIX I TO PART 122—COCNTIES
WITH UNINCORPORATED URBANIZED
AREAS GREATER THAN 100.000. BUT
LESS THAN 250,000 ACCORDING TO
THE 1990 DECENNIAL CENSUS BY THE
BrUKAL" OF THE CENSUS
[64 PR 68848. Dec. 8, 19991
State
....
Alabama ....
Arizona
California , .....
Colorado
Florida
Georgia
Kentucky
Louisiana
Unincor-
roiintv porated ur-
uounty baoized pop-
ulation
i
Jefferson ' 78,608
Pima 162.202
Alameda 115,082
Contra Costa 131,082
Kern : 128,503
Orange : 223.081
Riverside . 166,509
San Bernardino : 1S2.202
Arapahoe 103.248
Broward • 142,329
Escambia i 167.463
Hillsborough | 398,593
Lee i 102,337
Manatee ; 123.828
Orange : 378,611
Palm Beach ' 360,553
Paso 148,907
Pinellas ; 255,772
Polk '-• 121,528
Sarasota ; 172,600
Seminole 127,873
Clayton 133,237
Cobb 322.595
Fulton I 127,776
Gwinneft j 237,305
Richmond ! 126.476
Jefferson 239.430
East Baton Rouge .. 102,539
Parish 331.307
238
-------
Environmental Protection Agency
Pf. 122, App. J
State
Maryand
North Carolina
Nevada
Oregon
South Carolina
Virginia
Washington .
° County was
I
i County
i Jefferson Parish
j Howard
i Cumberland
I Clark
| Multnomah '
| Washington
: Greenville
flichland
. . . ; Arlington
• Chesterfield
j Henrico
i Prince William
| Pierce ...
j Snohomisn
Unincor-
porated ur-
banized pop-
157.972
146.827
327,618
52,923
116.687
147.464
130.589
170.936
174.488
201.367
157.131
258,530
157.2)8
previously listed in this appendix: however.
population dropped to below 100,000 in the f990 Census.
164 FR 68849, Dec. 8, 1999]
APPENDIX J TO PART 122—NPDES PKH-
MIT TESTING REQUIREMENTS FOR
PUBLICLY Owxro TREATMENT
WORKS (§i22.2K.m
TABLE 1A— EFFU-F.NT PARAMETERS FOH ALL
POTWS
Biochemical oxygen demand (BOD -5 or
CBOD-5)
Fecal coliform
Design Flow Rate
pH
Temperature
Total suspended solids
TABLK i—EFFT.THNT PARAMETER!-: KOK ALT.
POTWS WITH A Fi.o\v EQUAL TO OK GREAT-
ER THAX 0.1 MGD
Ammonia (as N)
Chlorine (total residual. TRC)
Dissolved oxyg-en
Nitrate-'Nitrlte
Kjeldahl nitrogen
Oil and grease
Phosphorus
Total dissolved solids
TABLE 2—EFFLUENT PARAMETERS FOR
SELF.CTED POTWS
Hardness
Metals (total recoverable/, cyanide and total
•phcnts'is
Antimony
Arsenic
Beryllium
Cadmium
Chromium
Copper
Lead
Mercury
Nickel
Selenium
Silver
Thallium
Zinc
Cyanide
Total phenolic compounds
Volatile organic compound?
Aerolein
Acrylonitrile
Benzene
Bromoforrn
Carbon tetrachloride
Chlorobeniwne
C'hlorodibroaiome thane
Chloroe thane
2-chloroethylvinvi ether
Chloroform
Uichlorobromomet.hsJ.ne
1.1-dichloi'oe thane
1 .2-dic-hloroethane
Trans-1.2-diohloroethylene
1 .1-dic'hloroethylene
1.2-diohloi'opropane
1 .3-dichloropi'opvlene
Ethylbenzene
Methyl bromide
Methyl chloride
Methyleue chloride
1.1, 2,2- tetrachloroe thane
Tetrachloroethylene
Toluene
l.l.l-trichloi-oe thane
1.1.2-trichloi'oethane
Trich.loroethj'lene
Vinyl chloride
Acid-extruotalili*. compounds
P-chloro-m-creso
2-chlorophenol
2.4-dichlorophennl
2. 4-dimethyl phenol
•1,6-dinitro-o-cresol
2.4-diiiitrophenol
2-nitrophenol
4-nitrophenol
Pentachlorophenol
Phenol
2.4,6- trichlorophenol
Base-neutral compounds
Acenaphthene
Acenaphthylene
Anthracene
Benzidine
Benzol a !antlirac:ene
Benzo(a)pyrene
3.4 benzofluovanthene
Benzo(ghi)perylene
Benzo(k)iluoranth.ene
Bis (2-chloroethoxyi methane
Bis (2-chloroet.hyl) ether
Bis (2-chloroisopropyl) ether
Bis (2-ethylhexyl) phthalate
4-bromophPnyl phenyl ether
Butyl benzj'l phthalate
2-chloronaphthalene
4-chlorophen.vl phenyl ether
Di-n-butyl phthalate
Di-n-octyl phthalate
Dibenzo(,a.h (anthracene
1,2-dichlorobenzene
239
-------
Pt. 123
40 CFR Ch. 1 (7-1-04 Edition)
1.3-dichlorobenzene
1.4-dichlorobenzene
3.3-dicmorotoenzidine
Diethyl phthalate
Dimethyl phthalate
2,4-dinitrotoluene
2.6-dinitrotoluene
1,2-diphenylhydrazine
Fluoranthene
Bluorene
Bexachlorobenzene
Hexachlorobutadiene
Hexacalorocyelo-pentadieiie
Hexaehloroethane
Indeno(,l,2,3-cd)pyrene
Isophorone
Naphthalene
Nitrobenzene
N-nitrosodi-n-propylamine
N-nitrosodimetnylamine
N-nitrosodiphenylamine
Phenanthrene
Pyrene
1.2.4,-triohlorobenzene
[65 PR 42469, Aug. 4,
PART 123—STATE PROGRAM
REQUIREMENTS
Subpart A—General
Sec.
123.1 Purpose and scope.
123.2 Definitions.
123,3 Coordination with other programs.
Subpart B—State Program Submissions
123.21 Elements of a program submission.
123.22 Program description.
123.23 Attorney General's statement.
123.24 Memorandum of Agreement with the
Regional Administrator.
123.25 Requirements for permitting,
123.26 Requirements for compliance evalua-
tion programs,
123.27 Requirements for enforcement au-
thority,
123.28 Control of disposal of pollutants into
wells.
123.29 Prohibition.
123.30 Judicial review of approval or denial
of permits.
123.31 Requirements for eligibility of Indian
Tribes.
123.32 Request by an Indian Tribe for a de-
termination of eligibility.
123.33 Procedures for processing an Indian
Tribe's application.
123.34 Provisions for Tribal criminal en-
forcement authority.
123.35 As the NPDES Permitting Authority
for regulated small MS4s. what is my
role?
123.36 Establishment, of technical standards
for concentrated animal feeding' oper-
ations.
Subpart C—Transfer of Information and
Permit Review
123.41 Sharing of information.
123,42 Receipt and use of Federal informa-
tion.
123.43 Transmission of information to EPA.
123,44 EPA review of and objections to
State permits,
123.45 Noncompliance and program report-
ing by the Director.
123.46 Individual control strategies.
Subpart D—Program Approval, Revision,
and Withdrawal
123,61 Approval process.
123.62 Procedures for revision of State pro-
grams.
123.63 Criteria for withdrawal of State pro-
grams.
128.64 Procedures for withdrawal of State
programs.
AUTHORITY: Clean Water Act. 33 U.S.C. 1251
L'l HCij.
SOURCE: 48 PR 14178, Apr. 1, 1983, unless
otherwise noted.
Subpart A—General
§ 123.1 Purpose and scope.
(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 Adminis-
trator under sections 318, 402. and 405(a)
(National Pollutant Discharge Elimi-
nation 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 pro-
grams) of the CWA. The requirements
that a State sewage sludge manage-
ment program must meet for approval
by the Administrator under section
405(f) are set out at 40 CFR part 501.
(b) These regulations are promul-
gated under the authority of sections
304d), 101(e), 405. and 518(e) of the CWA,
and implement the requirements of
those sections.
-------
Environmental Protection Agency
§123.1
State NPDES program will not be ap-
proved by the Administrator under sec-
tion 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)(H Upon approval of a State pro-
gram, 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 arrange-
ments have been made with the State
in the Memorandum of Agreement for
the State to assume responsibility for
these permits Retention of jurisdic-
tion shall include the processing of any
permit appeals, modification requests.
or variance requests; the conduct, of in-
spections, and the receipt and review of
self-monitoring reports. If any permit
appeal, modification request or vari-
ance request is not finally resolved
when the federally issued permit ex-
pires, EPA may, with the consent of
the State, retain jurisdiction until the
matter is resolved.
(2) The procedures outlined in the
preceding paragraph
-------
§123.2
40 CFR Ch.! (7-1-04 Edition)
treatment works, these permits are not
NPDES permits.
[48 PR 14178. Apr. 1. 1983. as amended at 54
FR 256, Jan, 4. 1989; 54 FR 18784. May 2. 1989:
58 PR 67981. Dec. 22, 1993; 59 FR 64343. Dec. 14,
1994; 63 FR 45122. Aug. 24. 1998]
8 123.2 Definitions.
The definitions in part 122 apply to
all subparts of this part,
[63 PR 45122, Aug. 24.
§ 123.3 Coordination with other pro-
grams.
Issuance of State permits under this
part may be coordinated with issuance
of RCBAr UIC, NPDES. and 404 permits
whether they are controlled by the
State. EPA. or the Corps of Engineers.
See §124.4.
Subpart B—State Program
Submissions
§ 123,21 Elements of a program sub-
mission.
(a) Any State that seeks to admin-
ister a program under this part shall
submit to the Administrator at least
three copies of a program submission.
The submission shall contain the fol-
lowing:
(1) A letter from the Governor of the
State (or in the case of an Indian Tribe
in accordance with §123.33(b). the Trib-
al authority exercising' powers substan-
tially similar to those of a State Gov-
ernor) requesting program approval;
(2) A complete program description.
as required by §123.22, describing how
the State intends to carry out its re-
sponsibilities under this part;
(3) An Attorney General's statement
as required "by §123.23;
(4) A Memorandum of Agreement
with the Regional Administrator as re-
quired by § 123.24;
(5) Copies of all applicable State stat-
utes and regulations, including those
governing State administrative proce-
dures;
(b)
-------
Environmental Protection Agency
§123,23
dedicated to administering the Feder-
ally required portion of the program.
(1) A description of the State agency
staff who will carry out the State pro-
gram, including the number, occupa-
tions, and general duties of the em-
ployees. The State need not submit
complete job descriptions for every em-
ployee carrying out the State program.
12) 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 (bxl) of
this section, cost of administrative
support, and cost of technical support.
(3) An itemization of the sources- and
amounts of funding-, including an esti-
mate 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 sec-
tion, identifying' any restrictions or
limitations upon this funding'.
that the laws of the State, or an inter--
state compact, provide adequate au-
thority to carry out the program de-
scribed under §123.22 and to meet the
requirements of this part. This state-
ment shall include citations to the spe-
cific statutes, administrative regula-
tions, and, where appropriate, judicial
decisions which demonstrate adequate
authority. State statutes and regula-
tions cited by the State Attorney Gen-
era) 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 pro-
gram is approved. To qualify as "inde-
pendent legal counsel" the attorney
•signing" the statement, required by this
section must have full authority to
independently represent- the State
agency in -court on ail matters per-
taining to the state program.
NOTK. EPA will supply States ivuh an At-
torney General's statement, format on re-
quest.
(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.
(ci The Attorney General's statement
shall certify that the State has ade-
quate lea:a' authority to issue and en-
force general permits if the State seeks
to implement the general permit pro-
gram under §122.28.
(48 FR 14178, Apr. 1. 1983. as amended at 58
PR 67981. TJer 22 i'»3!
243
-------
§123.24
40 CFR Ch. I (7-1-04 Edition)
§ 123.24 Memorandum of Agreement
with the Regional Administrator.
(a.) Any State that seeks to admin-
ister 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 ad-
ministration and enforcement of the
State's regulatory program. The Ad-
ministrator shall not approve any
Memorandum of Agreement which con-
tains provisions which restrict KPA's
statutory oversight responsibility.
(b) The Memorandum of Agreement
shall include the following;
(l)(i) Provisions for the prompt trans-
fer from EPA to the State of pending
permit applications and any other in-
formation relevant to program oper-
ation not already in the possession of
the State Director (e.g., support files
for permit issuance, compliance re-
ports, 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 Fed-
eral government, a procedure may be
established to transfer responsibility
for these permits.
NOTE: For example. EPA and the State and
the permittee could agree that the State
would issue a permit(s) identical to the out-
standing' Federal permit whiuh would simul-
taneously be terminated.
lii) Where a State has been author-
ized by EPA to issue permits in accord-
ance with §123.23(b) on the Federal In-
dian 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 pro-
gram operation not alivady in the pos-
session 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 Admin-
istrator for review, comment and.
where applicable, objection.
(3) Provisions specifying the fre-
quency and content of reports, docu-
ments 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 en-
forcement of the approved program.
State reports may be combined with
grant reports where appropriate. These
procedures shall implement the re-
quirements of §123,43,
(4) Provisions on the State's compli-
ance monitoring and enforcement pro-
gram, 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 in-
spection. 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 activi-
ties which require permits from both
EPA and the State under different pro-
grams. (See §124.4.)
NOTE: To promote efficiency and to avoid
duplication and inconsistency. States are en-
couraged to enter into joint processing'
agreements with EPA for permit issuance.
Likewise, States are encouraged (but not re-
quired) to consider steps to coordinate or
consolidate their own permit programs and
activities.
(6) Provisions for modification of the
Memorandum of Agreement in accord-
ance with this part.
ic) The Memorandum of Agreement.
the annual program grant and the
State/KPA Agreement should be con-
sistent. If the State/EPA Agreement
indicates that a change is needed in the
Memorandum of Agreement, the Mem-
orandum of Agreement may be amend-
ed through the procedures set forth in
this part. The State/EPA Agreement
may not override the Memorandum of
Agreement.
244
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Environmental Protection Agency
§123,25
NoTi:: Detailed prog-nun priori ties am! «pe-
'rific arrangements for EPA support of tlw
State program will change and are therefore
wore appropriately negotiated in the s on-
text- of annual agreements rather than i:i the
MOA. However, it may still be appropriate to
specify in the MOA the basis foe such de-
tailed agreements. K.K.. a provision in. the
MOA specifying- that EPA will select facili-
ties in the State for inspection annual!" a.s
part oi' the State EPA agreement.
(d) The Memorandum of Agreement
shall also specify the extent to which
EPA will waive its right to review, ob-
ject to. or comment upon State-issuer!
permits under sect-ion 402(d)(3>. Whenever a waiver is granted
under paragraph (d) of this section, the
Memorandum of Agreement shall con-
tain:
(1) A statement that the Regional
Administrator retains the right to ter-
minate 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
! 58 FR 14178. Apr. 1. l!h>3: 50 FR 6941. Feb. 13.
ifi«5. as ameudeJ at 51 FK 18784. May 2. 19B9:
:,8 FK 67981 !)fc J2, 11B3; 63 PR 45122. Aug. 24.
1998;
§ 123,25 Requirements for permitting,
sa'i All .State Programs under this
i>art must have legal authority to im-
plement each of the following provi-
sions and muse hi1 administered in con-
t'ormance with each, except that States
are not precluded from omitting or
modifying any provisions to impose
more stringent; requirements:
(1)§ 122.4-'•( Prohibitions):
(2)§122.5ia.) and (b)—(Effect of per-
mit):
(,3)§122.7(b) and ic)—(Confidential in-
formation):
(4)§122,21 • (Applicable permit condi-
tions) (Indian Tribes can satisfy en-
forcement authority requirements
under §123.34);
(13)§122.42—(Conditions applicable to
specified categories of permits);
i: 14) § 122.43 -(Establishing permit
conditions):
(15) § 122.44--( Establishing NPDES
permit conditions);
(16)§ 122.45 -(Calculating' permit con-
ditions);
(17) §122.46—(Duration):
(18)§ 122.47- -(Schedules of compli-
ance):
(19) § 122.48- - (Monitoring require-
ments):
(20)§122.50-(Disposal into wells);
(21)§ 122.61—(Permit transfer):
(22) § 122.62—(Permit modification):
(23) § 122.64 (Permit termination):
245
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§123.2S
40 CFR Cix I (7-1-04 EdiHon)
(25>§124,5 ;ai. «;•>. i. and •. 0
f i cation of permits i:
(26)§12-16 (as. (ci. id), and . (d). and it>>--( Public-
notice):
(29)§124,11—(Public comments and re-
quests for healings);
(30)§124.12(a)—(Public hearing's): and
(31)§124.17 (a) and H- requirement
nior" lenient us a Tradeoff for making an-
C'ttoer reQulrtmwit more t-'friiiM'en': tor exam-
ple, iiy requiring that public liearin.*s be held
prior to issuing' any permit while reducing
the amount of advance notice oi such a heur-
inx.
Ss.at'..- programs may, if they have adequate
iet'aJ authority, implement any of the provi-
sions of parts 122 and 124. See. for example.
§i22.5(d) (continuation of permits! and §124.4
i consolidation of permit processing,1.
For example, a State may impose more
stringent requirements in an NPDES pro-
gram by omitting1 the upset provision of
§122.41 or by requiring1 more prompt notice of
aii upset.
(b) State NPDES programs shall have
an approved continuing planning proc-
ess under 40 CPR 130.5 and shall assure
that the approved planning process is
at all times consistent with the CWA.
cc) State NPDES programs shall en-
sure that any board or body which ap-
proves all or portions of permits shall
not include as a member any person
who receives, or has during the pre-
vious 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 para-
graph:
(i) Board or body includes any indi-
vidual, including the Director, who has
cr shares authority to approve all or
portions of permits either in the first
instance, as modified or reissued, or on
appeal.
(ii) Significant portion of income means
10 percent or more of gross personal in-
come for a calendar year, except that it
means 50 percent or more of gross per-
sonal income for a calendar year if the
recipient is over 60 years of age and is
receiving that portion under retire-
ment, pension, or similar arrangement.
(iii) Permit holders or applicants for a
permit does not include any department
or agency of a State government, such
as a Department of Parks or a Depart-
ment of Fish and Wildlife.
(iv) Income includes retirement bene-
fits, consultant fees, and stock divi-
dends.
(2) For the purposes of paragraph
-------
Environmental Protection Agency
§123,26
Vfii niems I'OI VYhii'h me rt:ci:>Vnt dOi'S
,i(/i c;:-ow the Klcntiiv of the ['>r!:;:.i:\
-curcr-i of Hiconv,
1 18 >H i )]'.'•!. Anr. !. ia«3; :>M PR t.-U'. }>>••;• if).
lyR5: ;'.() b'H 7912. i'eh. .JT. l;!i;fi. ah ,irr;i-':i:i",i at
VI FH JM78I. May 2. 198»: -i.r; FR 48075 N--". !t>.
1990. ;•'•;; FH 9411. Pel- !9. l'J'13: 5R l-'K «iT981.
De-,-. i;'J. 19l«: 60 FH IfiSBfi. Mar. 23. Wo: '•"! FR
|:>I22. AUK J-l. !9U«: 6-1 PR 4J370. Ant;, -i I&99;
«4 FR '3H84y. Dee. «. IOSW: G;> KK 30909. .\;.iv 15.
2000: («: FK 3!i8. Per IS. 1M)1 i
S 123.26 Requirements for compliance
evaluation programs.
(a i State programs shall have pi ore-
(iui'os for receipt, evaluation, return.ion
asK( investigation for possible en!i>rce-
metil of all notice.-; and report.-, re-
quireil of permittees and other I'pyu-
lat,ed persons land ftu investigation for
possible enforcement, of failure- TO sub-
mit, these notices and reports:.
(bi Htate programs shall have inspr-c-
t.ion and surveiilanoe procedures to cle-
termine. independent of information
supplied by regulated persons, compli-
ance or noncomplianee with applii.-ablo
program requireme-nls. The State shall
maintain'
(I) A program which it> capabie of
making comprehensive surveys of all
facilities and activities subject to the
State Director's authority to identify
persons subject to regulation woo have
failed to comply with permit applica-
tion or other prouram requirements.
Any compilation, index or invem.ory of
such facilities and activities shall be
made available to the Regional Admin-
istrator upon request,;
i2) A program for periodic inspections
of the facilities and activities subject-
to regulation, These inspections .shall
be conducted in a manner designed to:
(ii Determine compliance or non-
compliance with issued permit 'condi-
tions and other program requirements:
tiii Verify the accuracy of informa-
tion submitted by permittees and other
regulated persons in reporting forms
and other forms supplying monitoring'
data; and
!iiii- Verify the adequacy of sampling.
monitoring, and other methods used by
permittees and other regulated persons
to develop that information:
(3» A program for investigating infor-
mation obtained regarding violations
•1: Fl OC;-:;;;l'x s !O] i'.'-Ct:i\ illg a'id eli-
• string p; uiu _ •,-<_.nsKic-i'ati-jr) oi ;v;h.>]-rn,i-
' ';;: siihmi'u-il b\ the Public about viu-
;.itic.-!is. P-.ibii; "iTurl in reporting vio-
!.t.tion>. sh.ti! he enc()L!)-aued. a-id tlu-
.Si-aie Dii'ti'tor .-.hail make available in
formation on reportii'iu1 procedure's.
id The .staie Director and State off;-
i ••!'» enga-Mfd in compliance evaluation
>hall have authurity to enter any site
i.-r premise.-, subiect to regulatioti or in
which records it-levant to program op-
eration are kept in order to copy anv
records inspect, monitor or otherwise
iuv-estigatt- compliance with the Stair
program including compliance with
permit conditions and other progiam
requirements. .-States whose law re-
quires a search warrant- before entry
conform with this requirement.
id i Invest >.;?arory inspections shall be
Conducted, samples shall he taken and
.•ither information, shali be gathered in
a manner (e.g.. using proper ''chain of
custody" piocedures) that will produce
evidence admissible in an enforcement
proceeding or in court,
tei State NPDKH compliance evalua-
i ton programs shall have procedures
and ability for:
ill Maintaining a comprehensive; in-
ventory of all sources covered by
NPDES permits and a schedule of re-
ports required to be submitted by per-
mittees to t-he State ag'eney:
(2i Initial screening (i.e.. pre-enforce-
ment evaluation) of all permit or
urant-related compliance information
to identify violations, and to establish
priorities for further substantive tech-
nical evaluation:
(3) When warranted, conducting a
substantive technical evaluation fol-
lowing the initial screening' of all per-
mit or grant-related compliance infor-
mation to determine the appropriate
agency response:
<4i Maiiitainins a management infor-
mation sysfetr which supports the
compliance evaluation activities of
this part: and
(5) Inspecttnt; the facilities of all
major dischargers at least annually.
j-18 FR 14tTR. Api 1. 1983. as amended at 54
FR 18785. Mav 2 1989: 63 FR 45122. Aua\ 24,
19981
247
203-159 D-9
-------
§123.27
40CFRCh. I (7-1-04 Edition)
§ 12.'l.27 Requirements for enforcement
authority.
(a) Any State agency administering a
program shall have available the fol-
lowing remedies for violations of .State
program requirements:
(1) To restrain immediately and ef-
fectively any person by order or by auit
in State court from engaging in any
unauthorized activity which is endan-
gering or causing' damage to public
health or the environment:
NOTE; This paragraph f.aKlt requires that,
States have a mechanism (e.g.. an adminis-
trative 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 ju-
risdiction to enjoin any threatened or
continuing' violation of any program
requirement, including permit condi-
tions, without the necessity of a prior
revocation of the permit:
(3) To assess or sue to recover in
court civil penalties and to seek crimi-
nal remedies, including' fines, as fol-
lows:
(i) Civil penalties shall be recover-
able for the violation of any NPDES
permit condition: any NPDES filing re-
quirement; any duty to allow or carry
out inspection, entry or monitoring ac-
tivities: 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 vio-
lation.
(ii) Criminal fines shall be recover-
able 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 as-
sessable in at least the amount of
$10,000 a day for each violation,
NOTE: States which provide the criminal
remedies based on "criminal negligence."
"gross negligence" or strict liability satisfy
the requirement of paragraph ia,i(3Kii! of thin
section,
(in) Criminal fines shall be recover-
able against any person who knowingly
makes any false statement, representa-
tion or certification in any NPDES
form, in any notice or report required
by an NPDES permit, or who know-
ingly renders inaccurate any moni-
toring device or method required to be
maintained by the Director. These
fines shall be recoverable in at least
the amount, of So.000 I'or each instance
of violation.
XDTK: 111 maay States the .State Director
will bt> represented in State court.B by the
State Attorney General or other appropriate
legal officer. Although the State Director
need not appear in court actions he or she
rthonld have power to request that any of the
above actions be brought.
(bxl) The maximum civil penalty or
criminal fine (as provided in paragraph
tax3) of this section) shall be assess-
able 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
-------
Environmental Protection Agency
§123.30
aggrieved by the unauthorized activity, or
both; and
Procedures for the administrative assess-
ment, of penalties by the Director.
Id) Any State administering a pro-
gram shall provide for public participa-
tion in the State enforcement process
by providing either:
(1) Authority which allows interven-
tion as of right in any civil or adminis-
trative action to obtain remedies speci-
fied in paragraphs (a)(l). (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 sub-
mitted pursuant to the procedures
specified in §123.26
-------
§123.31
40 CFR Ch. i (7-1-04 Edition)
§ 123.31 Requirements for eligibility of
Indian Tribes.
(a) Consistent, with section 518
-------
Environmental Protection Agency
§123.35
(3) A description of the entity (or en-
tities) 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 responsi-
bility for establishing and admin-
istering: an NPDES permit, program (in-
cluding a description of the relation-
ship 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 ad-
ministrative and technical expertise.
The plan must address how the Tribe
will obtain the funds to acquire the ad-
ministrative 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 re-
quested by the Regional Adminis-
trator.
§ 123.33 Procedures for processing an
Indian Tribe's application.
ia) The Regional Administrator shall
process an application of an Indian
Tribe submitted pursuant to §123,32 in
a tamely manner. He shall promptly
notify the Indian Tribe of receipt of the
application.
ib) The Regional Administrator shall
follow the procedures described in 40
CPR part 123. subpart D in processing a
Tribe's request to assume the NPDES
program.
[58 PR 67982. Dee. 22. 1993. as amended You must comply with the re-
quirements foi all NPDES permitting
authorities under Parts 122. 123. 124.
and 125 of this chapter. (This section is
meant only to supplement those re-
quirements and discuss specific issues
related to the small MSI storm water
program.)
(b) You must develop a process, as
well as criteria, to designate small
MS4s other than those described in
§ 122.32ta)d i of this chapter, as regu-
lated small MS4s to be covered under
the NPDES storm water discharge con-
trol program. This process must in-
clude the authority to designate a
small MS-1 waived under paragraph ids
of this section if circumstances change,
EPA may make designations under this
section if a State or Tribe fails to com-
ply with the requirements listed in this
paragraph. In making designations of
small MS4s. you must:
{lid) Develop criteria to evaluate
whether a storm water discharge re-
sults in or has the potential to result
in exceedaiices of water quality stand-
ards, including impairment of des-
ignated uses, or other significant water
quality impacts, including habitat and
biological impacts.
-------
§123.35
40 CFR Ch. 1 (7-1-04 Edition)
recommends a balanced consideration
of the following designation criteria on
a watershed or other local basis: dis-
charge to sensitive waters, high growth
or growth potential, high population
density, contiguity to an urbanized
area, significant contributor of pollut-
ants to waters of the United States.
and ineffective protection of water
quality by other programs:
(2) Apply such criteria, at a min-
imum, to any small MS4 located out-
side of an urbanized area serving a ju-
risdiction 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 devel-
oped 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 pollut-
ant loadings of a physically inter-
connected municipal separate storm
sewer that is regulated by the NPDES
storm water program.
(c) You must make a final determina-
tion within 180 days from receipt of a
petition under §122.26(1') of this chapter
(or analogous State or Tribal law). If
you do not do so within that time pe-
riod. EPA may make a determination
on the petition.
(d) You must issue permits con-
sistent 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(aKD of this chapter, under the
following' circumstances:
i.i} 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 fol-
lowing criteria have been met;
(i) Its discharges are not contributing
substantially to the pollutant loading's
of a physically interconnected regu-
lated MS4 (see paragraph Guidance: To help determine
other significant water quality im-
pacts. EPA recommends a balanced
consideration of the following criteria
on a watershed or other local basis: dis-
charge to sensitive waters, high growth
or growth potential, high population or
commercial density, significant con-
tributor of pollutants to waters of the
United States, and ineffective protec-
tion of water quality by other pro-
grams.
(3) You may phase in permit coverage
for small MSte serving jurisdictions
252
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Environmental Protection Agency
§123.35
with a population under 10.000 on a
schedule consistent with a State water-
shed permitting- approach. Under Lhis
approach, you must- develop and imple-
ment 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 re-
quired to have coverage under an
NPDRS permit by no later than March
8. 2007. Your schedule for phasing in
permit, coverage for small MS4s must
be approved by the Regional Adminis-
trator no later than December 10. 2001.
<4) If you choose to phase in permit
coverage for small MS4s in jurisdic-
tions with a population under 10.000. in
accordance with paragraph ( or ith<2) of this sec-
tion, for each eligible MS4 by Decem-
ber 9. 2002.
(6) You must periodic-ally review any
waivers granted in accordance with
paragraph of this chap-
ter.)
(g) If yen 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 imple-
mentation of municipal storm water
management, programs to implement
the minimum measures specified in
§122.34(tai 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. Regard-
less of whether a menu of BMPs has
been developed by EPA. EPA encour-
ages State and Tribal permitting au-
thorities to develop a menu of BMPs
that, is Appropriate for local conditions.
KPA also intends to provide guidance
on developing BMPs and measurable
Hoals and modify, update, and supple-
ment such guidance based on the as-
sessments of the NPDES MS4 storm
water program and research to be con-
ducted over the next thirteen years.
(hul) You must incorporate any addi-
tional measures necessary to ensure ef-
fective implementation of your State
or Tribal storm water program for reg-
ulated small MB4s.
(2> Guidance: BPA recommends con-
sideration of the following-;
(i'i You are encouraged to use a gen-
eral permit for regulated small MS4s:
sii) To the extent that your State or
Tribe administers a. dedicated funding
-source, you should play an active role
in providing financial assistance to op-
•-rafors of regulated small MR4s:
(iii) You should support local pro-
grams by providing technical and pro-
uTammatic assistance, conducting re-
-earch projects, performing watershed
monitoring, and providing adequate
legal authority at the local level:
(ivi You are encouraged to coordinate
and utilize the data collected under
several programs including water qual-
ity management programs. TMDL pro-
grams, and water quality monitoring
programs;
(v) Where appropriate, you may rec-
ognize existing responsibilities among
253
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§123.36
40 CFR Ch. 1 (7-1-04 Edition)
governmental entities for the control
measures In an NPDES small MS4 per-
mit (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 in-
tends to develop a model form for this
purpose.
164 FR 68850. Dec. 8. 1999]
SI 23.36 Establishment of technical
standards for concentrated animal
feeding operations.
If the State has not already estab-
lished technical standards for nutrient
management that are consistent with
40 CFR 412.4(0(2). the Director shall es-
tablish such standards by the date
specified in §123.62(e).
[68 FR 7269. Felx 12. 2003!
Subpart C—Transfer of Information
and Permit Review
§ 123.41 Sharing of information,
(a) Any information obtained or used
in the administration of a State pro-
gram shall be available to EPA upon
request without restriction. If the in-
formation 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 ac-
cordance 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.
EPA shall furnish to States with ap-
proved programs information sub-
mitted to EPA under a claim of con-
fidentiality, which the State needs to
implement its approved program, sub-
ject to the conditions in 40 CFR part 2.
S 123.42 Receipt and use of Federal in-
formation.
Upon approving a State permit pro-
gram. EPA will send to the State agen-
cy 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 man-
ner as the State Director and the Re-
gional Administrator agree:
(a) Prompt transmission to the State-
Director from the Regional Adminis-
trator of copies of any pending permit
applications or any other relevant in-
formation 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.
fb> 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 re-
ceives information sufficient to correct
the deficiency.
[48 FR H17B. Apr. 1. 1983. as amended at 63
FR 45122. AUR\ 24. 1998]
§ 123.43 Transmission of information
to EPA.
(a) Bach State agency administering
a permit program shall transmit to the
Regional Administrator copies of per-
mit program forms and any other rel-
evant information to the extent and in
the manner agreed to by the State Di-
rector a.nd Regional Administrator in
the Memorandum of Agreement and
not inconsistent with this part. Pro-
posed permits shall be prepared by
State agencies unless agreement to the
contrary has been reached under
§123.44(j). The Memorandum of Agree-
ment shall provide for the following:
(l! Prompt transmission to the Re-
gional Administrator of a copy of all
complete permit applications received
by the State Director, except, those for
254
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environmental Protectors Agency
§123.44
wind' pc'-mit. re.i-
inn!!3! ;; 123.2-Hdi. T!-
KPA H i'l'i copies t.i'
Vo: '.vhich permi1..
i'2i Prompt transmission to the Hf-
i-ional Administrator of notice of every
action taken by th.t- State agency re.-
latf'd to t-he consideration of any pei-
mit application or general permi'. in-
cluding a copy of each proposed or
draft permit and i mirmi ion ;in;i
d-aifl permi! :i:tve i.TC.ti present---.! ;'ii !.: "
hfdrii'ii; or :.;', vr^ii:^' yuisnari; to the
Public not h tc
ft!) Any rs'a:>- i-ei'mit pi-ograai sha'i
kt>ep such i ..••:.ivC.-. and submit to the
Adrmnist! \\-.-.\ .--\>.\. h infortnuMon as the
Admiuist) ,.u-: may reasonably requii>-
to HSct-rtf-1 n whether the .St.at*-* pro-
gram conu.
-------
§123.44
40 CFR Ch. I (7-1-04 Edition)
;2) Within 90 days following receipt, of
a proposed permit to wliich he or she
has objected under paragraph (bid) of
this section, or iu the case of general
permits within 90 days after receipt of
the proposed general permit, the Re-
gional Administrator shall set forth in
writing1 and transmit, to the State Di-
rector:
(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 (including1 the effluent limi-
tations and conditions which the per-
mit would include if it were issued by
the Regional Administrator.)
NOTK: Paragraphs (a) and cb> of this sec-
tion, in effect, modify any existing agree-
ment between EPA and the State which pro-
vides less than 90 days for EPA to supply the
specific grounds for an objection. However.
when an agreement, provides for an EPA re-
view period of less than 90 days. EPA must
file a general objection, in accordance with
paragraph (bKl) of this section within the
time specified in the agreement. This gen-
eral objection must be followed by a specific
objection within the 90-day period. This
modification to MOA's allows EPA to pro-
vide detailed information concerning accept-
able permit conditions, as required by sec-
tion 402(d> of CWA. To avoid possible confu-
sion, MOA's should be changed to reflect this
arrangement.
(c) The Regional Administrator's ob-
jection to the issuance of a proposed
permit must be based upon one or more
of the following grounds:
(I) The permit fails to apply, or to
ensure compliance with, any applicable
requirement of this part;
NOTE: For example, the Regional Adminis-
trator may object to a permit not requiring'
the achievement of required effluent limita-
tions by applicable statutory deadlines.
(2) In the case of a proposed permit
for which notification to the Admin-
istrator is required under section
402cb)(5) of CWA. the written rec-
ommendations of an affected State
have not been accepted by the permit-
ting State and the Regional Adminis-
trator finds the reasons for rejecting
the recommendations are inadequate:
(3) The procedures followed in con-
nection with formulation of the pro-
posed permit failed in a material re-
spect to comply with procedures re-
quired by CWA or by regulations there-
under or by the Memorandum of Agree-
(4) Any finding1 made by the State Di-
icctor in connection with the proposed
permit misinterprets CWA or any
miidelines or regulations under CWA.
or misapplies them to the facts;
(51 Any provisions of the proposed
permit relating to the maintenance of
records, reporting, monitoring1, sam-
pling, or the provision of any other in-
formation by the permittee are inad-
equate, in the judgment of the Re-
gional Administrator, to assure com-
pliance with permit conditions, includ-
ing 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 efflu-
ent standards and limitations or stand-
ards for sewage sludge use and disposal
under sections 301, 302. 306. 307. 318, 403.
and 405 of CWA have not yet been pro-
mulgated by the Agency, the proposed
permit, in the judgment of the Re-
gional Administrator, fails to carry out
the provisions of CWA or of any regula-
tions issued under CWA; the provisions
of this paragraph apply to determina-
tions made pursuant to §125.3(0(2) in
the absence of applicable guidelines, to
best management practices under sec-
tion 304
-------
Environmental Protection Agency
§123.44
(c) of this section, the Regional Admin-
istrator:
<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 Re-
gional Administrator the complete
record of the permit proceedings before
the State, or any portions of the record
that tlie Regional Administrator deter-
mines are necessary for review. If this
request is made within 30 days of re-
ceipt 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 in-
terim objection to the issuance of" the
permit, and the full period of time
specified in the Memorandum of Agree-
ment for the Regional Administrator's
review will recommence when the Re-
gional 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 Memo-
randum of Agreement, afford to inter-
ested persons an opportunity to com-
ment 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 hear-
ing be held by the Regional Adminis-
trator on the objection. A public hear-
ing in accordance with the procedures
of §124.12 (c) and (tl> of this chapter (or.
in the case of a sewage sludge manage-
ment program. §501.15(d)(7) of this
chapter) will be held, and public notice
provided in accordance with §124.10 of
this chapter, of this section shall be eon-
ducted by the Regional Administrator.
and. at the Regional Administrator's
discretion, with the assistance :if an
EPA panel designated by the Regional
Administrator, in an orderly and expe-
ditious 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)(l) Ii no public hearing is held
under paragraph tes of this section and
the State does not resubmit a permit
revised to meet the Regional Adminis-
trator's objection within 90 days of re-
ceipt of the objection, the Regional Ad-
ministrator may issue the permit in
accordance with parts 121. 122 and 124
of this chapter and any other guide-
lines and requirements of CWA.
(2) If a public hearing is held under
paragraph te) of this section, the Re-
gional Administrator does not with-
draw the objection, and the estate 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 Administra-
tor's notification under paragraph (g)
of this section, the Regional Adminis-
trator may issue the permit in accord-
ance 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 Agree-
ment 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 trans-
mitted to the Regional Administrator
for review in accordance with this sec-
tion unless the State proposes to issue
a permit which differs from the draft
permit reviewed b,v the Regional Ad-
ministrator, the Regional Adminis-
trator has objected to the draft permit,
or there is significant public comment.
H8 FR 14178. Apr. 1. 1983. as amended at 54
FR 18785. May 2. 1989: 54 FR 23896. June 2.
1989: 60 FR 15386. Mar 23, 1995: 63 FR 15122,
Aug. 24. 1998: 65 FR 30910. May 15. 2000]
257
-------
§123.45
40 CFR Cfl. 1 (7-1-04 Edition)
§ 123.45 Noncompliance and program
reporting by the Director.
The Director shall prepare quarterly.
semi-annual, and annual reports as de-
tailed below. When the State is the per-
mit-issuing1 authority, the State Direc-
tor shall submit all reports required
under this section to the Regional Ad-
ministrator, 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) Quarterly reportn. The Director
shall submit/ quarterly narrative re-
ports for major permittees as follows:
(1) Format. The report shall use the
following format:
(i! Provide a separate list of major
NPDES permittees which shall be sub-
categorized as non-POTWs. POTWs.
and Federal permittees.
(ii) Alphabetize each list by per-
mittee name. When two or more per-
mittees have the same name, the per-
mittee with the lowest permit number
shall be entered first.
(iii) For each permittee on the list.
include the following information In
the following order:
(At 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.. (iiuA) thru
(iiiMG)S which describes the reason for
reporting the violation on the quar-
terly report.
(C) The date(s). and a brief descrip-
tion of the action(s) taken by the Di-
rector to ensure compliance.
(D) The status of the instance!s) of
noncompliance and the date non-
compliance was resolved.
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 speci-
fied in an enforcement order or a. per-
mit.
(C) Violations of permit effluent lim-
its that exceed the Appendix A "Cri-
teria 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 re-
port, pretreatment report, or a Dis-
charge Monitoring Report within 30
days from the due date specified in an
enforcement order or a permit.
tiii) Category 11 noncompliance. Cat-
egory II noncompliance includes viola-
tions of permit conditions which the
Agency believes to be of substantial
258
-------
Environmental Protection Agency
§123,45
concern and may not meet the Cat-
egory I criteria. The following are in-
stances of noncompliance which must
be reported as Category II noncompli-
ance unless the same violation meets
the criteria tor Category I noncompli-
ance:
(A) di Violation of a permit limit;
{2} An unauthorized bypass;
(3) An unperniitled discharge: or
(4) A pass-through of pollutants
which causes or has the potential to
cause a water quality problem (e.g..
fish kills, oil sheens) or health prob-
lems (e.g., beach closings, fishing bans.
or other restrictions of beneficial usesi.
(Bt Failure of an approved POTW to
implement its approved pret-reatment
program adequately including failure
to enforce industrial pretreatment re-
quirements on industrial users as re-
quired in the approved program.
CC) Violations of any compliance
schedule milestones (except those mile-
stones 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 pro-
vide reports (other than those reports
listed in paragraph ia)(2)iii)(D) of this
section) within 30 days from the due
date specified in an enforcement, order
or a permit.
(E) Instances when the required re-
ports 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.
CP) Violations of narrative require-
ments (e.g.. requirements to develop
Spill Prevention Control and Counter-
measure Plans and requirements to im-
plement 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) Semi-annual statistical summary re-
port. Summary information shall be
provided twice a year on the number of
major permittees with two or more vio-
lations of the same monthly average
permit limitation in a six month pe-
riod, including those otherwise re-
ported, under paragraph (a) of this sec-
tion. This report shall be submitted at,
the same time, according to the Fed-
eral fiscal year calendar, as the first
and third quarter QNCRs.
(c) Annual reports for NPDES il) An-
nual nownnipUawe report. Statistical
reports shall be submitted by the Di-
rector on nonmajor NPDES permittees
indicating the total number reviewed.
the number of noncomplying nonmajor
permittees, tht- number of enforcement
actions, and number of permit modi-
fications extending compliance dead-
lines. The statistical information shall
be organized to follow the types of non-
compliance listed in paragraph (a) of
this section.
(2) A separate list of nonmajor dis-
charges which are one or more years
behind in construction phases of the
compliance schedule shall also be sub-
mitted in alphabetical order by name
and permit number,
(d) Schedule- -<1) For all quarterly >v-
ports. On the last working clay of May.
August. November, and February, the
State Director shall submit to the Re-
gional Administrator information con-
cerning ooucompliance with NPDES
permit requirements by major dis-
chargers in the State in acorclance with
the following schedule. The Regional
Administrator shall prepare and sub-
mit information for EPA-issued per-
mits to EPA Headquarters in accord-
ance with the same schedule:
QUARTERS COVERED BY REPORTS ON
NONCOMPLIANCE BY MAJOR DISCHARGERS:
:0a!e for completion of reports';
January, FeDrudry an:J March ,. . 'May 3"
' August 31
November 30
February 28
(2) For c,'// annual report*. The period
for annual reports shall be for the cal-
endar year ending December 31, with
reports completed and available to the
oublie no more than (50 dav? la tor.
I'M 512345- CKITKKIA M>R NON-
RK"')KT!\r. IX TKK NPDES PRO-
This appendix rleserihes the criteria for re-
porting violations of NPDES permit effluem
limits in the Quarterly noncornpliant/e report
(QNCR) as specified under §123.45ia>(2)(ii)ic>.
Any violation of an NPDES permit is a viola-
tion of the Clean Water Act iCWAi for whit-fa
259
-------
§123.46
40 CFR Ch. I (7-1-04 Edition)
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.
Violations of Permit. El fluent Limits
Cases in which violations of permit efflu-
ent limits must be reported depend upon the
magnitude and'or frequency of the violation.
Effluent violations should be evaluated on a
Ijarameter-ljy-parameter and outfall-by-out-
fall basis. The criteria, for reporting' effluent
violations are as follows:
a. Reporting1 Criteria for Violations of
Monthly Average Permit Limits—Mag-
nitude ami Frequency
Violations of monthly average effluent
limits which exceed or equal the product of
the Technical Review Criteria (TRCi times
the effluent limit, and occur two months in
a six month period must be reported. TRCs
are. for two groups of pollutants.
Group I Pollutants—TRC=1.4
Group II Pollutants—TRC=1.2
ID. Reporting Criteria for Chronic Viola-
tions of Monthly Average Limits
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.
GROUP I POLLUTANTS--TRC=i,4
Oxygen Demand
Biochemical Oxygen Demand
Chemical Oxygen Demand
Total Oxygen Demands
Total Organic Carbon
Other
Solids
Total Suspended Solids (Residues)
Total Dissolved Solids (Residues)
Other
A'ulrient-s
Inorganic Phosphorus Compounds
Inorganic Nitrogen Compounds
Other
Dulergcnts and Oih
MBAS
NTA
Oil and Grease
Other detergents or algicides
Minerals
Sulfur
Sulfate
Total Alkalinity
Total Hardness
Other Minerals
Aluminum
Cobalt
Iron
Vanadium
MKTALS (ALL FORMS}
Other metals not specifically listed under
Group I
Calcium
Chloride
Fluoride
Magnesium
Sodium
Potassium
Cyanide
Total Residual Chlorine
Organ ics
All orii'iinics are Group II except those spe-
cifically listed under Group I.
(Approved by the Office of Management and
Budget under control number 2040-0082)
[48 FR 1-1178. Apr. 1, 1983. as amended at 50
PR 3-1653. Aug. 26. 1985: 54 FR. 18785. May 2.
1989: 63 FR 45123. Aug. 24,
S 123.46 Individual control strategies.
(a) Not later than February 4. 1989,
each State shall submit to the Re-
gional Administrator for review, ap-
proval, and implementation an indi-
vidual control strategy for each point
source identified by the State pursuant
to section 304<1)(1)(C) of the Act which
discharges to a water identified by the
State pursuant to section 304
-------
Environmental Protection Agency
§123.46
submit control strategies in accord-
ance with paragraph (a) of this section
or the Administrator does not approve
the control strategies submitted by
such State in accordance with para-
graph (a), then, not later than June 4,
1990. the Administrator in cooperation
with such State and afcer notice and
opportunity for public comment, shall
implement the requirements of CWA
section 304(1 Ml) in such State. In the
implementation of such requirements.
the Administrator shall, at a min-
imum, consider for listing under CWA
section 304(1 HI) any navigable waters
for which any person submits a peti-
tion to the Administrator for Listing
not later than October 1. 1989.
(c) For the purposes of this set;turn
the term individual control strategy.
as set forth in section 304d) of the
CWA, means a final NPDES permit
with supporting' documentation show-
ing' 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 Feb-
ruary 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(1 KlMC) of the CWA and is also sub-
ject to an on~site response action under
sections 104 or 106 of the Comprehen-
sive Environmental Response. Com-
pensation, and Liability Act of 1980
(CEKCLA). (42 U.S.C. 9601 « *•«,>. an
individual control strategy may be the
decision document (which incorporates
the applicable or relevant and appro-
priate requirements under the C'WAt
prepared under sections 104 or 106 of
CERCLA to address the reletu-«: or
threatened release of hazardous-, sub-
stances to the environment.
(d) A petition submitted pursuant to
section 304(1X3) 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 list-
ing under CWA section 304(1) and 40
CFR 130.10ul)(6i.
tet If the Regional Administrator dis-
approves one or more individual con-
trol 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 The notice of approval or dis-
approval »d ven under this paragraph
shall include the following':
(i) The name and address of the EPA
office that reviews the State's submit-
t-als,
(iii A bi iff description of the section
304<1> process.
(iii) A list, of ICSs disapproved under
this section and a finding that the ICSs
will not meet all applicable review cri-
teria under this section and section
304(1) of the CWA.
(iv) If the Regional Administrator de-
termines that a State did not provide
adequate public notice and an oppor-
tunity to comment on the waters.
point sources, or ICSs prepared pursu-
ant to section 304(1), or if the Regional
^drmnistracor chooses to exercise his
or her discretion, a list of the ICSs ap-
proved under this section, and a finding
that the ICSs satisfy all applicable re-
view criteria.
(v) The location where Interested per-
sons may examine EPA's records of ap-
proval and disapproval.
ivi) The name, address, and telephone
number of the person at. the Regional
Office from whom interested persons
may obtain more information.
(vii) Noliiv- that- written petitions or
•. ornments are due within 120 days.
(2) The Regional Administrator shall
provide the notice of approval or dis-
approval .aiven 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 cir-
culation or in the FHUKRAL REOIHTKR.
261
-------
§123.61
40 CFR Ch. i (7-1-04 Edition)
for the notice of approval or dis-
approval. The Regional Administrator
shall also provide written notice to
each discharger identified under sec-
tion 304(1)(1)(C). that EPA has lasted
the discharger under section
304(1 )(1)(C).
(3) As soon as practicable but not,
later than June 4. 1990, the Regional
Offices shall issue a response to peti-
tions or comments received under sec-
tion 304(1). 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:
Indicate whom an interested
member of the public should contact
with any questions: and
161 Briefly outline the fundamental
aspects of the State's proposed pro-
gram, and the process for EPA review
and decision.
(bi 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 com-
ments received. A responsiveness sum-
mary shall be prepared by the Regional
Office which identifies the public par-
ticipation activities conducted, de-
scribes the matters presented to the
public, summarizes significant com-
ments received and explains the Agen-
cy's response to these comments,
-------
Environmental Protection Agency
§123.63
keep EPA fully informed of any pro-
posed modifications to its basic statu-
tory or regulatory authority, its forms,
procedures, or priorities. Ground* for
program revision include cases where a
State's existing approved program in-
cludes authority to issue NPDES per-
mits for activities on a Federal Indian
reservation and an Indian Tribe lias
subsequently been approved for as-
sumption of the NPDES program under
40 CFR part 123 extending to those
lands,
tbi Revision of a State program shall
be accomplished as follows:
d) The State shall submit a modified
program description. Attorney Gen-
eral's statement. Memorandum of
Agreement, or such other documents as
EPA determines to be necessary under
tihe circumstances.
(2) Whenever EPA determines that,
the proposed program revision it. sub-
stantial. EPA shall issue public notice
and provide an opportunity to com-
ment for a period of at least 30 days
The public notice shall be mailed lo in-
terested persons and shall be published
in the FFJDEKAL RKOIKTEH and in
enough of the largest newspapers in ;lie
State to provide Statewide coverage.
The public notice shall summarize the
proposed revisions and provide for the
opportunity to request a public hear-
ing. Such a hearing will be held if there
is significant public interest based on
requests received.
(3) The Administrator will approve or
disapprove program revisions based on
the requirements of this part, (or. in
the case of a sewage sludge manage-
ment program, 40 CFR part 501) and of
the t'WA.
(4i A program revision shall become
effective upon the approval of the Ad-
ministrator. Notice of approval of any
substantial revision shall be published
ir, the FKDKRAI, RI-KHHTKI',. Notice of ap-
pinva! of non-substantial program revi-
sions may be given by a letter from the
Administrator to the State Governor
'H' his designee.
!cj States with approved programs
must notify EPA whenever they pro-
pose to transfer all or part of any pro-
gram from the approved State agency
to any other State agency, and must
identify any new division of respon-
sibilities among the agencies involved.
The new agency is not authorized to
administer the program until approved
by the Administrator under paragraph
ib) of this section. Organizational
(-harts required under §123.22(bi tor. in
the case of a sewage sludge manage-
ment, program. §501.12(t» of this chap-
ter) must be revised and resubmitted.
ul) Whenever the Administrator has
reason to believe that circumstances
have changed with respect to a State
program, h<3 may request, and the
Slate shall provide, a supplemental At-
torney General's statement, program
description, or such other documents
or information as are necessary.
(e) State' XPDES prof/mm.s- on!}/. All
new programs must comply with these
regulations immediately upon ap-
proval. Any approved State section 402
permit program which requires revi-
sion to conform to this part shall be so
revised within one year of the dale of
promulgation of these regulations, un-
less a State must amend or enact a
statute in ordei to make the required
revision ir, which case such revision
shall fake place within '2 years, except
that revision of State programs to im-
plement the requirements of 10 CFR
part 103 (pretieatrnent) shall be accom-
plished as provided in 40 CFR 108.10. In
addition, approved States shall submit.
within 6 rnumius. copies of their permit
forms for EPA review and approval.
Approved States shall also assure that
permit applicants, other than POTWs.
submit, as part of their application.
the information required under
§§124.4(d) and 122.21 \g) or ;h). as appro-
priate.
cf) lievi.ston of ;i State program by a
Great Lakes State or Tribe >as defined
hi '10 CFR 132.2i to conform to section
118 of the C\VA and 40 CFR part 132
shall be accomplished pursuant to 40
CFE part 132.
:«« FH M1TH. Apt. .;. MC. a.s .mumdrt! at -19
FR 31842. Aus. 8. 1984; 30 Ft! «»41. Feb. 19.
1985: 53 Fit :>300T. Sept. {i. 1988, 58 FR 67983.
bee. 22. I'Ktt: 60 PR 15IJH6. Mar. IS, li<-K>: 63 FR
iSlS. Aag iM .HWl
§ 123.63 Criteria for withdrawal of
State programs.
Sa) 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
263
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§123.64
40 CFi Ch. i (7-1-04 Edition)
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 following1:
(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 nec-
essary; 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 re-
quirements of this part, including:
(i) Failure to exercise control over
activities required to be reg'ulated
under this part, including failure to
issue permits;
(ii) Repeated issuance of permits
which do not conform to the require-
ments of this part: or
(iii) Failure to comply with the pub-
lic participation requirements of this
part,
(3) Where the State's enforcement
program fails to comply with the re-
quirements of this part, including:
(i) Failure to act on violations of per-
mits or other program requirements:
(ii) Failure to seek adequate enforce-
ment penalties or to collect adminis-
trative 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 Memo-
randum of Agreement required under
§123.24 for, 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 de-
veloping water quality-based effluent
limits in NPDES permits.
(6) Where a Great Lakes State or
Tribe (as defined in 40 CFR 132.2s 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.
tb) [Reserved]
[48 PR 11178. Apr. 1, 1983: 50 FR 6941. Feb. 19,
1985. as amended at 54 FR, 23897, June 2, 1989:
60 FR 15386, Mar. 23, 1995: 63 FR 45123. Aug.
24. 1998]
8 123.64 Procedures for withdrawal of
State programs.
(a) A State with a program approved
under this part for, 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 fol-
lowing actions, or in such other man-
ner as may be agreed upon with the Ad-
ministrator,
(1) The State shall give the Adminis-
trator 180 days notice of the proposed
transfer and shall submit a plan for the
orderly transfer of all relevant pro-
gram information not in the possession
of EPA (such as permits, permit files.
compliance files, reports, permit appli-
cations) which are necessary for EPA
to administer the program.
(2) Within 60 days of receiving the no-
tice and transfer plan, the Adminis-
trator shall evaluate the State's trans-
fer plan and shall identify any addi-
tional information needed by the Fed-
eral government for program adminis-
tration and/or identify any other defi-
ciencies in the plan,
<3i At least 30 days before the trans-
fer is to occur the Administrator shall
publish notice of the transfer in the
FF.DERAL RKGISTER and in enough of
the largest newspapers in the State to
provide Statewide coverage, and shall
mail notice to all permit holders, per-
mit applicants, other regulated persons
and other interested persons on appro-
priate EPA and State mailing lists,
(b) The following procedures apply
when the Administrator orders the
commencement of proceedings to de-
termine whether to withdraw approval
of a State program.
il) Order. The Administrator may
order the commencement of with-
drawal proceedings on his or her own
initiative or in response to a petition
from an interested person alleging fail-
ure of the State to comply with the re-
quirements of this part as set forth in
§123.63 (or, in the case of a sewage
sludge management program. §501,33 of
this chapter). The Administrator will
264
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Environmental Protection Agency
§123,64
respond in writing to any petition to
commence withdrawal proceedings. He
may conduct an informal investigation
of the allegations in the petition To de-
termine whether cause exists to com-
mence proceedings antler this para-
graph. The Administrator's order com-
mencing' proceeding's under this para-
graph will fix a time and place for the
commencement of the hearing and will
specify the allegations against the
State which are to be considered at the
hearing. Within 30 days the State must
admit or deny these allegations in a
written answer. The party seeking
withdrawal of the State's program will
have the burden of coming forward
with the evidence in a hearing' under
this paragraph.
(2) Definitions. For purposes of this
paragraph the definitions of "Act."
"Administrative Law Judge." "Hearing
Clerk." and "Presiding Officer" in 40
OPR 22.03 apply in addition to the fol-
lowing"
(i) Parly means the petitioner, the
State, the Agency, and any other per-
son whose request to participate as a
party is granted.
(ii) Person means the Agency, the
State and any individual or organiza-
tion having an interest in the subject
matter of the proceeding.
(iii) Petitioner means any person
whose petition for commencement of
withdrawal proceedings has been grant-
ed by the Administrator,
(3) Procedures, (i) The following provi-
sions of 40 CFB part 22 (Consolidated
Rules of Practice) are applicable to
proceedings under this paragraph;
(A)§22.02—(use of numbergenderi:
(B>§22.04(ci—(authorities of Pre-
siding Officer);
(C)§22.06—(filing service of rulings
and orders):
(Di§22.09—(examination of filed doc-
uments);
(E)§22.19(a). and §22.25—(filing the transcript): and
(I) § 22.26—(findings-'conelusions).
(ii) The following: provisions are also
applicable:
(A) Computation a-nd extension of
time—(1) Computation. In computing
any period of time prescribed or al-
lowed in these rules of practice, except.
;is otherwise provided, the day of the
event from which the designated period
begins to run shall not be included.
Saturdays, Sundays, and Federal legal
holidays shall be included. When a
stated time expires on a Saturday.
Sunday, or legal holiday, the stated
time period shall be extended to in-
clude the next business day.
U's Extensions of lime. The Adminis-
trator. Regional Administrator, or Pre-
siding Officer, as appropriate, may
grant an extension of time for the fil-
ing of any pleading, document, or mo-
tion (Ii upon timely motion of a party
to the proceeding, for good cause
shown, and after consideration of prej-
udice to cither parties, or di't upon his
own motion. Such a motion by a party
may only be made after notice to all
other parties, unless the movant can
show good cause why serving1 notice Is
impracticable. The motion shall be
filed in advance of the date ou which
the pleading, document or motion is
due to be filed, unless the failure of a
party to make timely motion for ex-
tension of time was the result of excus-
able neglect,.
(3} The lime for commencement of
the hearing shall not be extended be-
yond the date set in the Administra-
tor's order without approval of the Ad-
min is tra tot.
(B) Ex pdi'lc discussion of proceedings.
At no time after the issuance of the
order commencing proceedings shall
the Administrator, the Regional Ad-
ministrator, the Regional Judicial Offi-
cer, the- Presiding Officer, or any other
person who is likely to advise these of-
ficials in the decision on the case, dis-
cuss ex pa.rte the merits of the pro-
ceeding with any interested person out-
side the Agency, with any Agency staff
member who performs a prosecutor.!al
or investigative function in such pro-
ceeding or a factually related pro-
ceeding, or with any representative of
such person, Any ex parte memo-
randum or other communication ad-
dressed to the Administrator, the Re-
gional Administrator, the Regional Ju-
dicial Officer, or the Presiding Officer
during the pendency of the proceeding
and relating to the merits thereof, bv
265
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§123.64
40 CFR Ch. i (7-1-04 Edition)
or on behalf of any party, shall be re-
garded as argument made In the pro-
ceeding and shall be served upon all
other parties. The other parties shall
be given an opportunity to reply to
such memorandum or communication.
(C) Intervention- (1} Motion. A motion
for leave to intervene in any pro-
ceeding conducted under these rules of
practice must set forth the grounds for
the proposed intervention, the position
and interest of the movant and the
likely impact that intervention will
have on the expeditious progress of the
proceeding. Any person already a party
to the proceeding may file an answer to
a motion to intervene, making specific
reference to the factors set forth in the
foregoing sentence and paragraph
(b)(3)(ii)(C)(J) of this section, within
ten (10) days after service of the mo-
tion for leave to intervene.
(2) However, motions to intervene
must be filed within 15 days from the
date the notice of the Administrator's
order is first published.
(3) Disposition, Leave to intervene
may be granted only if the movant
demonstrates that (i) his presence in
the proceeding would not unduly pro-
long or otherwise prejudice that adju-
dication of the rights of the original
parties; (u) the movant will be ad-
versely affected by a final order: and
(Hi) the interests of the movant are not
being adequately represented by the
original parties. The intervenor shall
become a full party to the proceeding
upon the granting of leave to inter-
vene.
(4) Amicux curiae. Persons not parties
to the proceeding who wish to file
briefs may so move. The motion shall
identify the interest of the applicant
and shall state the reasons why the
proposed amicus brief is desirable. If
the motion is granted, the Presiding
Officer or Administrator shall issue an
order setting the time for filing such
brief. An amicus curiae is eligible to
pai'ticipate in any briefing after his
motion is granted, and shall be served
with all briefs, reply briefs, motions.
and orders relating to issues to be
briefed.
(D) Motions—(7) General, All motions.
except those made orally on the record
during a hearing, shall (i) be in writing:
-------
Environmental Protection Agency
§123.64
(ivi An original and two (2) copies of
all written submissions to the hearing
shall be filed with the Hearing Clerk:
iv) 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.
ivi) Every submission shall be accom-
panied by an acknowledgement of serv-
ice 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 serv-
ice, and:
iviii The Hearing Clerk shall main-
tain and furnish to any person upon re-
quest, a list containing the name, serv-
ice address, and telephone number of
all parties and their attorneys or duly
authorized representatives,
ini Participation by a person mil a
party. A person who is not a party may.
in the discretion of the Presiding Offi-
cer, be permitted to make a limited ap-
pearance by making' oral or wilt-ten
statement of his. her position on the
issues within such limits and on such
conditions as may be fixed by the Pre-
siding Officer, but he;she may not oth-
erwise participate in the proceeding,
(61 Rights of parties. (i> All parties to
the proceeding" may:
(A) Appear by counsel or other rep-
resentative in all hearing and pre-hear-
ing proceeding's:
(B'k Agree to stipulations of facts
which shall be made a part of the
record,
t7) Recommended decision, fit Within 30
days after the filing' of proposed find-
ing's and conclusions, and reply briefs.
the Presiding' Officer shall evaluate the
record before him her, the proposed
findings and conclusions and any briefs
filed by the parties and shall prepare a
recommended decision, and shall cer-
tify the entire record, including' the
recommended decision, to the Adminis-
trator.
(ii) Copies of the recommended deci-
sion shall be served upon all parties.
(iiii Within 20 days after the certifi-
cation and filing' of the record and rec-
ommended decision, all parties may
file with the Administrator exceptions
to the recommended decision and a
supporting brief
;8) Decision ;>,•/ AdministYatnr. If the State fails to take such ap-
propriate corrective, action and file a
certified statement thereof within the
time prescribed by the Administrator.
the Administrator shall issue a supple-
mentary order withdrawing approval of
the State program. If the State takes
such appropriate corrective aciion. the
Administrator shall issue a supple-
mentary urder stating that approval of
authority ;s not withdrawn,
tvii) The Administrator's supple-
mentary order shall constitute finai
Agency action \vithi.n the meaning of -T
U.S.C. 704.
sviiij Withdtavval of authorization
under this section and the appropriate
Act does not .relieve any person from
complying with the requirements of
261
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Pt. 124
40 CFR Ch, 1 (7-1-04 Edition)
State law. nor does it affect the valid-
ity of actions by the State prior to
withdrawal,
[48 FR 14178. Apr. 1. 1983: 50 FK 6941. Feb. 19.
1985. as amended at 57 FR 5335, Feb. 13. 1992:
63 PR 45123, Auff. 24. 1998]
PART 124—PROCEDURES FOR
DICISIONMAKING
Subpart A—General Program
Requirements
Sec.
124.1 Purpose and scope,
124,2 Definitions.
124.3 Application for a permit.
124.4 Consolidation of permit processing'.
124.5 Modification. revocation and
reissuance. or termination of permits.
124.6 Draft permits.
124.7 Statement of basis.
124.8 Pact, sheet.
124.9 Administrative record for draft per-
mits when EPA is the permitting author-
ity.
124.10 Public notice of permit actions nnd
public comment period.
124.11 Public comments and requests for
public hearings.
124.12 Public hearings.
12-113 Obligation to raise issues and provide
information during the public comment
period.
124.14 Reopening of the public comment pe-
riod.
124.15 Issuance and effective date of permit.
124.16 Stays of contested permit conditions.
124.17 Response to comments.
124.18 Administrative record for final per-
mit when EPA is the permitting author-
ity.
124.19 Appeal of RCRA. UIC. N'PDEtv and
PSD Permits.
124.20 Computation of time.
124.21 Effective date of part 124.
Subpart B—Specific Procedures Applicable
to RCRA Permits
124.31 Pre-application public meeting and
notice.
124.32 Public notice requirements at the ap-
plication stage.
124.33 Information repository.
Subpart C—Specific Procedures
Applicable to PSD Permits
124.41 Definitions applicable to PSD per-
mits.
124.42 Additional procedures for PSU per-
mits affecting Class I areas.
Subpart D—Specific Procedures
Applicable to NPDES Permits
124,51 Purpose and scope.
124.52 Permits required on a case-by-case
basis.
124.53 State certification.
124.54 Special provisions for State certifi-
cation and concurrence on applications
for section SOlSh) variances.
124.55 Effect of State certification,
124,56 Fact sheets.
124,57 Public notice.
124,58 [Reserved]
124.59 Conditions requested by the Corps of
Enajr/eers and other government agen-
cies.
124.60 Issuance and effective date and stays
of NPDES permits.
124.61 Final environmental impact state-
ment.
124.62 Decision on variances.
124.63 Procedures for variances when EPA is
the permitting authority.
124.64 Appeals of variances,
124.65 (Reserved]
124.66 Special procedures for decisions on
thermal variances under section 316ia>.
AITHOHITY: Resource Conservation and Re-
covery Act. 42 U.S.C. 6901 et seq.: Safe Drink-
ing Water Act, 42 U.S.C. 300f el seq,: Clean
Water Act. 33 U.S.C, 1251 et scq.: Clean Air
Act. 42 U.S.C. 7401 ft xvq,
SOTKCK: 48 PR 14264, Apr. 1. 1983. unless
otherwise noted.
Subpart A—General Program
Requirements
8 124.1 Purpose and scope.
(ai This part contains EPA proce-
dures 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 gov-
erned 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 speci-
fied in 33 CFR, parts 320-327, The proce-
dures 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 four
subparts. Subpart A contains general
268
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Environmental Protection Agency
§124.2
procedural requirements applicable to
all permit programs covered by these
provi.-nons. Sub-parts B through D sup-
plement these general provisions with
recjivirements that, apply to only ntv> or
more of trie programs, Subpart. A de-
scribes the steps EPA will follow in re-
;:«ivn;% permit applications, preparing'
draft permits, issiuni; public nonces,
inviting public comment and funding"
public bearing's on draft permit? Sab-
part A also covers osse.mbliLig at; ad-
mlnisi.rative record, responding Lo
comments, issuing a final permit deci-
sion, and allowing for administrative
appeal of final permit decisions Sub-
part B contains specific procedural re-
quirements for RCRA permits. Subpart.
C contains definitions and specific pro-
cedural requirements for PSD permits.
Subpart D contains specific procedural
requirements for NPDES permits.
(c) Part 124 offers an opportunity for
public hearing's (see §124.12).
('d) This part is designed to allow per-
mits for a given facility under two or
more of the listed programs to be proc-
essed separately or together at the
choice of the Regional Administrator.
This allows EPA to combine the proc-
essing of permits only when appro-
priate, and not necessarily in all cases.
The Regional Administrator may con-
solidate 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 per-
mits to be subject to a single public
hearing under §124.12. Permit appli-
cants may recommend whether or not
their applications should be consoli-
dated 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 BORA. UIC. NPDES. and 404
permit, programs. These requirements
are listed in §§123.25 (NPDES). 145.11
(UIC). 233.26 (404). and 271.14 (RORA)
and signaled by the following words at
the end of the appropriate part 124 sec-
tion or paragraph heading: (applicable
to State programs see §§123.25 (NPDES),
145.11 (UIC), 233,26 (404), find 271.14
(RCRA)). Part 124 does not apply to
PSD permits issued by an approved
State.
a) To coordinate decisioninaknig
ivhen diftt-ivnt permits will be issued
i y KPA and approved State programs,
this purl allows applications to be
:')intl.v prc.'-.-essed. joint comment- peri •
cds and l'HMrir;Ks to be held, and final
permits K< be issued on a cooperative
basis whenever KPA and a State agree
'.'.> take si'-.'li :--lt'ps in general or in incli-
vtdunl ea-e.-i. These joint processing1
agreement:- may be provided in the
Memorandum of Agreement developed
under §§123.21 ;N'PDESi. 145.2-1 iHTO,
2!i3.24 (404), and 271,8 UlCKAi.
$124.2 Definitions,
;ai In addition to the definitions
sdveii in §§122.2 and 123.2 (NPDEtt). 501.2
isludge management), 144.8 and 145.2
(UIC). 233.3 (404). and 270.2 and 271.2
iRCRA). 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,
Adminiatraiot means the Adminis-
trator of the U.S. Environmental Pro-
tection Agency, or an authorised rep-
resentative,
Application means the EPA standard
national forms for applying for a per-
mit, including any additions, revisions
or modifications to the forms: or forms
approved by 13PA for use in "approved
States.™ including any approved modi-
fications or revisions. For R-CRA. appli-
cation also includes the information
required by the Director under §§270.14
through 270.29 [contents of Part B of
the RCRA application].
Appi'vprintc. Act and regulation* means
the Clean Water Act (CWAl: the Solid
Waste Disposal Act. as amended by the
Resource Conservation Recovery Act
(RCRA): or Safe Drinking Water Act
(SDVVA). whichever Is applicable: and
applicable regulations promulgated
under those statutes. In the case of an
"approved State program" appropriate
Act and regulations includes program
requirements.
CWA means the Clean Water Act (for-
merly referred to as the Federal Water
Pollution Control Act of Federal Pollu-
tion Control Act, Amendments of 1972)
269
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§124,2
40 CFR Ch. ! (7-1-04 Edition)
Public Law 92 500. us anier-iie'i !••. i'ul.-
1k- Law 9& 217 and Public La*--' "•'<"> >"(>: :i>
L'.S.C. .1251 el Mn- Tribal
director as the context require, or an
authorized representative. \Vh>'!i there
is no approved State or Triba.l pro-
gram, and there is an EPA achninis-
fered program. Dlrect/tr means the Re-
gional Administrator. When tin-re is an
approved State or Tribal program. "Di-
rector*" normally means the State or
Tribal director. In some circumstances.
however, EPA retains the authority to
take certain actions even when there is
an approved State or Tribal program,
(For example, when EPA has issued an
NPDES permit prior to the approval of
a State program. EPA may retain ju-
risdiction over that permit, after pro-
gram approval: see §123,1) In such
cases, the term "Director1" means the
Regional Administrator and not the
State or Tribal director.
Draft permit means a document pre-
pared under §124,6 indicating the Direr--
tor's tentative decision to issue or
deny, modify, revoke and reissue, ter-
minate, or reissue a "permit/' A notice
of intent to terminate a permit and a
notice of intent to deny a permit as
discussed in §124.5. are types of "draft.
permits." A denial of a request foi
modification, revocation and reissu-
ance or termination, as discussed in
§124.5. is not a "draft permit." A "pro-
posal permit" is not a "draft permit."
Environmental Appeals Board shall
mean the Board within the Agency de-
scribed in §1.25 ivi^rr^d 10 the Admims-
iivtioi by iiie KiiViromri'Uil.i] Appeals
Hoard. ,tll pasties sha'.l be ^o not.ified
:"uni the su:es in this subpart referring
10 thr Environment';*! Appeals Board
shall be interpreted as referring to the
Administrator,
KI'A ("KPA"'i means the United States
"Environmental Protection Agency."
/-'[{.: i;>!}/ or activity means any "HWM
facility." UIC "injection well,"' NPDES
"poin! source1' or "treatment works
tieating domestic sewage" or Slate 404
dredge or fill activity, or any other fa-
cility or activity (including land or ap-
purtenances theretoi that is subject to
regulation under the RCRA. UIC.
NPDES. or 404 programs.
Federal Indian reservation (in the case
of NPDES i means all land within the
limits of any Indian reservation under
the jurisdiction of the United States
Government. notwithstanding the
issuance of any patent, and including
rights-of-way running through the res-
ervation.
Ccnetul permit sNPDES and 404)
means an NPDES or 404 "permit" au-
thorizing' a category of discharges or
activities under the CWA within a geo-
graphical area. For NPDES. a general
permit means a permit issued under
§122.28, For 404. a general permit means
a permit issued under §233.37.
Indian Tribe means (in the case of
UIC) any Indian Tribe having a feder-
ally recognized governing' body car-
rying out substantial governmental du-
ties and powers over a defined area.
For the NPDES program, the term "In-
dian Tribe" means any Indian Tribe.
band, group, or community recognized
by the Secretary of the Interior and ex-
ercising governmental authority over a
Federal Indian reservation.
Interstate agency means an agency of
two or more States established by or
under an agreement or compact ap-
proved by the Congress, or any other
agency of two or more States having
substantial powers or duties pertaining
to the control of pollution as deter-
mined and approved by the Adminis-
trator under the "appropriate Act and
regulations."
Major facility means any RCRA. UIC.
NPDES. or 404 "facility or activity"
270
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Environmental Protection Agency
§124.2
classified as such by the Regional Ad-
ministrator, or, in the case of ''ap-
proved State programs.'' the Regional
Administrator in conjunction with the
.State Director.
Ownt-r or operator means owner or op-
erator of any "facility or activity" sub-
ject to regulation under the RCRA.
UIC. NPDES. or 404 pros-rams.
Permit means an authorization, li-
cense, or equivalent control document.
issued by EPA or an "approved State"
to implement the requirements of this
part and parts 122. 123. 144. 145. 233. 270,
and 271. "Permit" includes RCRA ''per-
mit by rule" (§270.60). UIC area permit
(§144.33). NPDES or 404 "genera! per-
mit" (§§270.61. 144.3-1. and 233.38-. Permit
does not include RCRA interim status
(§270.70). UIC authorization hy rule
(§114.2.1). or any permit which has riot
yet been the subject, of final agency ac-
tion, such as a "draft- permit'' ui a "pro-
posed permit."
.Person means an individual, associa-
tion, partnership, corporation, munici-
pality. State. Federal, or Tribal agen-
cy, or an agency or employee thereof.
RCRA means the Solid Waste Dis-
posal Act as amended by the Resource
Conservation and Recovery Act of 1976
(Pub. L. 94-580. as amended by Pub- L.
95-609. 42 U.S.C. 6901 i.-f «'c/).
Reyiond! Administrati/i' means the Re-
gional Administrator of the appro-
priate Regional Office of the Environ-
mental Protection Agency or the au-
thorised representative of the Regional
Administrator.
Schedule of compliance means a sched-
ule of remedial measures included in a
"permit." including' an enforceable se-
quence of interim requirements (for ex-
ample, actions, operations, or mile-
stone events) leading- to compliance
with the "appropriate Act and regula-
tions.''
SDWA means the Sale Drinking
Water Act (Pub. L, 95-523, as amended
by Pub. L. 95-1900: 42 U.S.C. 300f ct ;;<>({).
S-.'ction 404 program or State 401 pro-
gram nr 404 means an "approved .State
program*' to regulate the "discharge of
dredged material" and the "discharge of
fill material'' under section 404 of the
Clean Water Act in "State regulated
waters."
Site means the land or water area
where any "facility or activity"' is phys-
located or conducted, including
adjacent, land used in connection with
the facility or activity.
State means one of the States of the
United Stares, the District of Colum-
bia, the Commonwealth of Puerto Rico.
the Virgin Islands. Guam. American
Samoa, the Trust Territory of the Pa-
cific Islands i except" in the case of
RCRA). the Commonwealth of the
Northern Mariana Islands, or an Indian
Tribe that nieetb the statutory criteria
which authorize EPA to treat the Tribe
in a manner .similar to that in which it
treats a State iexcept in the case of
RCRA).
Sitttc DJi't'dnr means the chief admin-
istrative officer of any State, inter-
••aate, or Tribal agency operating an
approved program, or the delegated
representative of the State director. If
i he responsibility is divided among two
or more States, interstate, or Tribal
.-igencies, "State Director" means the
chief administrative officer of the
State, interstate, or Tribal agency au-
thorized u« perform the particular pro-
cedure or function to which reference
is made.
Slbte. Din:t'i(>v means the chief admin-
istrative officer of any State or inter-
state agency operating an "approved
program." or the delegated representa-
tive of the state Director. If responsi-
bility is divided among two or more
.State or interstate agencies. "State Di-
rector" means* the chief administrative
officer of the 8*ate or Interstate agen-
cy authorized to perform the particular
procedure or function to which ref-
erence is made,
UIC means the Underground Injec-
tion Control program under Part- C of
the -Safe Drinking Water Act. including
an "approved program."
(b) For the purposes of part 124. the
term Director means the State Director
or Regional Administrator and is used
when the Accompanying provision is re-
quired of EPA-administered programs
and of State programs under §§123.25
•;NPDES). 115.11 (UIC). 233,26 (404). and
271,14 (RCRA). The term Regional Ad-
ministrator is used when the accom-
panying provision applies exclusively
to EPA-tssued permits and is not appli-
cable to State programs under these
sections. While States are not required
to implement these latter provisions.
271
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§124.3
40 CFR Ch. I (7-1-04 Edition)
they are not precluded from doing so.
notwithstanding use of the term "Re-
gional Administrator."
[48 FR 14264, Apr. 1, 1983: 48 FR 30115. June 30.
1983. as amended at 49 FR 25981. June 25, 1984:
53 FR 37410. Sept. 26. 1988: 54 FR 18785. May
2, 1989: 57 FR 5335. Feb. 13, 1992: 57 FR 60129.
Dec. 18. 1992: 58 FR 67983, Dec. 22. 1993: 59 FR
64343. Dec. 14. 1994: 65 FR 30910. May 15. 20001
§ 124.3 Application for a permit.
(a) Applicable to State programs, sec.
§§123.25 (NPDES), 145.11 (UIC), 233.26
(404), and 271.14 (RCRA). (1) Any person
who requires a permit under the RCRA.
UIC. NPDES. or PSD programs shall
complete, sign, and submit to the Di-
rector an application for each permit
required under §§270.1 (RCRA). 144,1
(UIC'). 40 CFR 52.21 (PSD), and 122.1
(NPDES). Applications are not required
for RCRA permits by rule (§270.60). un-
derground injections authorized by
rules (§§144.21 through 144.26). NPDES
general permits (§122.28) and 404 gen-
eral permits (§233.37).
(2) The Director shall not begin the
processing of a permit until the appli-
cant has fully complied with the appli-
cation 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 require-
ments of §§122.22 (NPDES). 144.32 fuiC).
233.6 (404). and 270.11 (RCRA).
(b) [Reserved]
(c) The Regional Administrator shall
review for completeness every applica-
tion 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 modi-
fication, or an NPDES new source or
NPDES new discharger should be re-
viewed for completeness by the Re-
gional Administrator within 30 days of
its receipt. Each application for an
EPA-issued permit submitted by an ex-
isting 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 re-
ceipt. Upon completing the review, the
Regional Administrator shall notify
the applicant in writing whether the
application is complete. If the applica-
tion is incomplete, the Regional Ad-
ministrator 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 speci-
fy in the notice of deficiency a date for
submitting the necessary information.
The Regional Administrator shall no-
tify the applicant that the application
is complete upon receiving this infor-
mation. After the application is com-
pleted, the Regional Administrator
may request additional information
from an applicant but only when nec-
essary to clarify, modify, or supple-
ment previously submitted material.
Requests for such additional informa-
tion will not render an application in-
complete.
(d) If an applicant fails or refuses to
correct deficiencies in the application.
the permit may be denied and appro-
priate enforcement actions may be
taken under the applicable statutory
provision including RCRA section 3008.
SDWA sections 1423 and 1424. CAA sec-
tion 167. and CWA sections 308. 309.
402(h). and 402(k).
(e) If the Regional Administrator de-
cides 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.
if) The effective date of an applica-
tion is the date on which the Regional
Administrator notifies the applicant
that the application is complete as pro-
vided in paragraph (c) of this section.
(g) For each application from a major
new HWM facility, major new UIC in-
jection well, major NPDES new source.
major NPDES new discharger, or a per-
mit 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 sched-
ule. (This paragraph does not apply to
PSD permits.) The schedule shall speci-
fy target dates by which the Regional
Administrator intends to:
(1) Prepare a draft permit:
(2) Give public notice;
272
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Environmental Protection Agency
§124.5
(3) Complete the public comment
period, including any public hearing:
and
(4i Issue a final permit,
(Clean Water Act (33 U,6,C. 1251 ct ncq.i. Safe
Drinking1 Water Act (42 IJ.S.C, 3001' in ,wy.».
Clean Air Act (42 U.S.C. 7401 cl ,«•. Re-
source Conservation and Recovery Act (42
U.S.C. 6901 ciscQ.))
[48 PR 14264. Apr. 1. 1983. as amended at 46
FR 39620. Sept. 1. 1983: S4 FR 18785. May 2.
1989: 65 PR 30910. May 15. 20001
S 124,4 Consolidation of permit proc-
essing.
(anl) Whenever a facility or activity
requires a permit under more thai) 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 pre-
pared at the same time, the statements
of basis (required under §124.7 for EPA-
issned permits only) or fact sheets
(§124.8). administrative records (re-
quired under §124.9 for EPA-issued per-
mits only), public comment periods
(§124.10), and any public hearings
(§124.12) 011 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
Directorts), joint processing would re-
sult 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 cov-
ered by these regulations, the permit-
ting authority may coordinate the ex-
piration date(s) of the new permius)
with the expiration date(s) of the exist-
ing permit(s) so that all permits expire
simultaneously. Processing of the sub-
sequent applications for renewal per-
mits may then be consolidated.
(c) Processing of permit applications
under paragraph (a) or (b) of this sec-
tion may be consolidated as follow;-;:
(1) The Director may consolidate per-
mit 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 Direclonsi may agree to con-
solidate draft permits whenever a facil-
uy or activity requires permits from
hoth EPA and an approved State.
(3) Permit applicants may recom-
mend whether or not- the processing of
their applications should be consoli-
dated.
id) [Reserved]
iej Except, with the writ.ten 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.
j S8 FR 14264. Apr. 1. 10B3. as amended at 65
FR 30910. M.iy 15. 20001
§124.5 Modification, revocation and
reissuance, or termination of per-
mits.
(a) (Applicable to State programs. ,vtv
$§123.25 (\TDEfl), 145.11 (UIC), 233.28
H04), and 271.14 (KCKA)). Permits
(other than PSD permits) may be modi-
fied, revoked and reissued, or termi-
nated either at the request, of any in-
terested person (including1 the per-
mittee) or upon the Director's initia-
tive. However, permits may only be
modified, revoked and reissued, or ter-
minated for the reasons specified in
§122.62 or §122.64 (NPDES). 144.39 or
144.40 (UIO). 233.14 or 233.15 (404), and
270.41 or 270.43 (RCRA). All requests
shall be in writing and shall contain
facts or reasons supporting the request.
(b) If the Director decides the request
is not justified, he or she shall send the
requester a brief written response giv-
ing a reason for the decision. Denials of
requests for modification, revocation
and reissuance. or termination are not
subject to public notice, comment, or
hearings. Denials by the Regional Ad-
ministrator may be informally ap-
pealed, to the Environmental Appeals
Board by a letter briefly setting forth
the relevant facts. The Environmental
Appeals Board may direct the Regional
Administrator to begin modification,
revocation and reissuance, or termi-
nation proceedings under paragraph (c)
of this section. The appeal shall be con-
sidered denied if the Environmental
273
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§124.5
40CFRCh. I (7-1-04 Edition)
Appeals Board takes no action on the
letter within 60 days after receiving- it.
This informal appeal is. under 5 U.S.C.
704. a prerequisite to seeking judicial
review of EPA action in denying a re-
quest for modification, revocation and
reissuance, or termination.
tc) (Applicable to State programs, see
§§123.25 (NPDES), 145.11 (VIC), 233.26
(404), and 271.14 (RCRA)). (1) If the Di-
rector tentatively decides to modify or
revoke and reissue a permit under
§§122,62 (NPDES), 144.39 (UIC). 233.14
(404). or 270.41 or 270.42(c) (RCRA). he or
she shall prepare a draft permit under
§124.6 incorporating- the proposed
changes. The Director may request ad-
ditional information and. in the case of
a modified permit, may require the
submission of an updated application.
In the case of revoked and reissued per-
mits, the Director shall require the
submission of a new application.
(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 re-
main in effect for the duration of the
unmodified permit. When a permit is
revoked and reissued under this sec-
tion, the entire permit is reopened just
as if the permit had expired and was
being reissued. During any revocation
and reissuance proceeding the per-
mittee 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 modi-
fications" as defined in §270.42 (a) and
(b) (RCRA) are not subject to the re-
quirements of this section.
(d) (Applicable to State proqramx, sea
§§123.25 (NPDES) of this chapter, 145.11
(UIC) of this chapter, and 271.14 (RCRA)
of this chapter). (1) If the Director ten-
tatively decides to terminate: A permit
under §144.40 (UIC.) of this chapter, a
permit under §§122.64(a) (NPDES) of
this chapter or 270.43 (RCRA) of this
chapter (for EPA-issued NPDES per-
mits, only at the request of the per-
mittee), or a permit under §122.64(b»
(NPDES) of this chapter where the per-
mittee objects, he or she shall issue a
notice of intent to terminate. A notice
of intent to terminate is a type of draft
permit which follows the same proce-
dures as any draft permit prepared
under §124.6 of this chapter.
(2) For EPA-issued NPDES or RCRA
permits, if the Director tentatively de-
cides to terminate a permit under
§122.64(a) (NPDES) of this chapter.
other than at the request of the per-
mittee, or decides to conduct a hearing
under section 3008 of RCRA in connec-
tion with the termination of a RCRA
permit, he or she shall prepare a com-
plaint 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 Re-
gional Administrator and the per-
mittee agree to termination in the
course of transferring permit responsi-
bility to an approved State under
§§123.2 Kb Ml) (NPDES) of this chapter.
145.25(b)(l) (UIC) of this chapter.
271.8(b)(6) (RCRA) of this chapter, or
50.1.14(b)(l) (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 per-
mittee, unless the permittee objects.
(e) When EPA is the permitting au-
thority, all draft permits (including no-
tices of intent to terminate) prepared
under this section shall be based on the
administrative record as defined in
§124.9.
(f) (Applicable to State programs, see
§233.26 (404)). Any request by the per-
mittee for modification to an existing
404 permit (other than a request for a
minor modification as defined in
§233.16 (404)) shall be treated as a per-
mit application and shall be processed
in accordance with all requirements of
§124.3.
(grid) (Reserved for PSD Modification
Provisions).
(2i 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
274
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Environmental Protection Agency
§! 24,8
precesseil under §52,2l(w) and are not
subject to this part.
['18 Fit 14264, Apr. 1. 1983. as amended 33.26
(404). and 271.14 (RCRA).) If the Director
decides to prepare a draft permit, he or
she shall prepare a draft permit that
contains the following information:
d) All conditions under §§122.41 and
122,43 (NPDES). 144.51 and 144.12 (UIC,
233,7 and 233.8 (404. or 270.30 and 270.32
(RCRA) iexcept for PSD permits*)'*);
(21 All compliance schedules under
§§122.47 (NPDES). 144.53 (UIC». 233.10
H04). or 270.33 (RCRAi (except for PSD
permits):
(3) All monitoring requirements
under §§122.48 (NPDES). 144.54 tUIC).
233.11 (404). or 270.31 (RCRA) (except for
PSD permits'): and
(4) For:
ii5 RCRA permits, standards for
treatment, storage, and/or disposal ami
other permit conditions under §270,30;
(ii> UIC permits, permit conditions
under §144.52:
(iii) PSD permits, permit conditions
under 40 CFR§52.21:
iiv) 404 permits, permit, conditions
under §§233.7 and 233.8:
(vi NPDES permit*, effluent limita-
tions, standards, prohibitions, stand-
ards for sewage sludge use or disposal.
and conditions! under §§122.41. 122.42.
and 122.44. including when applicable
any conditions certified by ft State
agency under §124.55. and all variances
that are to be included under §124.63.
(e) t Applicable tit State programs, xci-
§§123.25 '(\rOES), 145.11 (UIC): 233.26
(404). and 2~1.14 (RCHA).) All draft per-
mits prepared by EPA under this see-
ti:m shall be accompanied by a state-
ment of basis (§124.7) or fact sheet
(§124.8). and shall be based on the ad-
ministrative record (§124.9). publicly
noticed (§124.10) and made available for
public: comment (§124.11). The Regional
Administrator shall give notice of op-
portunity for a public hearing (§124.12).
issue a final decision (§124.15) and re-
spond to comments i§124.17i. For
HCRA. UIC or PSD permits, an appeal
may be taken under §124.19 and. for
NPDES permits, an appeal may be
taken under §124.74. Draft permits pre-
pared by a State shall be accompanied
>>y a fact sheet if m>uired under §124,8.
§ 124.7 Statement of basis,
EPA shall prepare a statement of
basis for every draft permit for which a
lact sheet under §124.8 is not prepared.
The statement of basis shall briefly de-
scribe the derivation of the conditions
of the draft permit anu the reasons for
them or. in the case of notices of intent
to deny or terminate, reasons sup-
porting the tentative decision. The
statement of basis shall he sent to the
applicant and, on request. to any other
person.
£ 124,8 Fact sheet.
(Applicable d> State progratris. tec
§§123.25 (XPDES). 145.11 (UIC). 233.2(i
f404), and 271.14 (RCRA).)
275
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§124.9
40 CFR Ch, i (7-1-04 Edition)
(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 gen-
eral permit (§§237.37 and 122.28), for
every NPDES draft permit, that incor-
porates a variance or requires an expla-
nation under §124.56(b), for every draft
permit that includes a sewage sludge
land application plan under 40 CPR
501.15(aH2)(ix), and for every draft, per-
mit which the Director finds is the sub-
ject 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 per-
mit. The Director shall send this fact
sheet to the applicant and. on request.
to any other person,
(ta) 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, dis-
posed of, injected, emitted, or dis-
charged.
(3) For a PSD permit, the degree of
increment consumption expected to re-
sult 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 adminis-
trative 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 re-
ceived:
(if) Procedures for requesting a hear-
ing and the nature of that hearing: and
(ill) 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 infor-
mation.
(8) For NPDES permits, provisions
satisfying the requirements of §124.56.
(9) Justification for waiver of any ap-
plication requirements under §122,21(j)
or iqj of this chapter.
[48 FR 14264. Apr. 1. 1983. as amended at 54
FR 18786. May 2. 1989: 84 FR 42470. Ang. 4.
1999]
§ 124.9 Administrative record for draft
permits when EPA is the permitting
authority.
iai The provisions of a draft permit
prepared by EPA under § 124.6 shall be
based on the administrative record de-
fined in this section.
(b> For preparing a, draft permit
under §124.6. the record shall consist
of:
fl) The application, if required, and
any supporting data furnished by the
applicant:
(2) The draft permit or notice of in-
tent to deny the application or to ter-
minate the permit;
(3) The statement of basis (§124.7) or
fact sheet (§124.8):
(4) All documents cited in the state-
ment of basis or fact sheet; and
(5) Other documents contained in the
supporting file for the draft permit.
16) For NPDES new source draft per-
mits only, any environmental assess-
ment, environmental impact statement
i EIS). finding of no significant impact.
or environmental information docu-
ment, and any supplement to an EIS
that may have been prepared. NPDES
permits other than permits to new
sources as well as all RCRA. UIC and
PSD permits are not subject to the en-
vironmental impact statement, provi-
sions of section 102('2)(C) of the Na-
tional Environmental Policy Act. 42
U.S.C. 4321.
to Material readily available at the
issuing Regional Office or published
material that is generally available.
and that is included in the administra-
tive 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.
276
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Environmental Protection Agency
§124.10
(ib This soot.ion applies to all diaft
permit^ when public notice was given
after the effective dale of these regula-
tions.
S 124,10 Public notice of permit actions
and public comment period.
uO .SVopc. (1) The Director shall give
public notice that the following actions
have occurred:
ii) A permit application has been '.eu-
tatively denied under §124.6(b):
(ii) (Applicable to Slat;: program*. :>w
§§123.25 (NPDES), 145.11 '(UIC). 2.l>.2t>
(404). and 271.14 (RCRA)) A draft permit
has been prepared under §124.6(c"O:
siii) (Applicable to State program;,, set'
§§123.25 (NPDES), 145.11 (UIC), 233,26
(404) and 271.14 (RCRA)). A hearing has
been scheduled under §124.12:
(i'v) An appeal has been granted under
§124.19:
(v) iApplicable, to State programs, see
§233.26 (404)). A State section 404 appli-
cation has been received in cases when
no draft permit will be prepared tsee
§233.39); or
(vi) An NPDES new source deter-
mination has been made under §122.29.
(2) No public notice is required when
a request for permit modification, rev-
ocation and reissuance. or termination
is denied under §124.6(b). Written no-
tice of that denial shall be given to the
requester and to the permittee.
(3) Public notices may describe more
than one perm.it or permit actions.
(b) Timing (applicable to State pro-
grams, see^ §§123.25 (NPDES). 145.11
(UIC), 233.26 (404, and 271.14 (RCRA)), (Ii
Public notice of the preparation of a
draft, permit (including a notice of in-
tent to deny a permit application) re-
quired under paragraph (a) of this sec-
tion shall allow at least 30 days for
public comment. For RCRA permits
only, public notice shall allow at least
45 days for public comment. For EPA-
issued permits, if the Regional Admin-
istrator determines under 40 CFR part
6. subpart F that an Environmental
Impact Statement (ELS) shall be pre-
pared for an NPDES new source, public-
notice of the draft permit shall not be
given until after a draft EIS is issued.
(2) Public notice of a public hearing
shall be given at least 30 days before
the hearing. (Public notice of the hear-
ing may be given at the same time as
public notu ••• isf the draft penult and
Ihc two noliees may be combined.)
ic; Meihnds < applicable to State pr;)-
oi-tnifi. .wr $$ 123.2') (XPDES). 145.11
n'lCi, 233.2'' (-Id-It, and 271.14 (RCRA)).
Public notice uf activities described In
paragraph uixl) of this section shall be
g-ven by the following- methods:
1) By mailing a copy of a notice to
t.lie following persons (any person oth-
erwise ent.it led to receive notice under
this paragraph may waive his or her
riyhts to receive notice for any classes
and categories of permits::
Any other agency which the Di-
rector knows has issued or is required
to issue a UCRA. UIC. PSD (or other
permit under the Clean Air Act).
NPDES, 404. sludge management' per-
mit, 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 Coun-
cil on Historic Preservation. State His-
toric Preservation Officers, including
any affected States (Indian Tribes).
(For purposes of this paragraph, and in
the context of the Underground Injec-
tion Control Program only, the term
State includes Indian Tribes treated as
States.)
iiv) 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.
Army Corps of Engineers, the U.S. Fish
and Wildlife Service and the National
Marine Fisheries Service:
tv'i For NPDES permits only, any
user identified in the permit applica-
tion of a privately owned treatment-
works:
ivi) For 404 permits only, any reason-
ably aseertainable owner of property
adjacent to the regulated facility' or
activity and the Regional Director of
the Federal Aviation Administration if
die discharge involves the construction
of structures which may affect, aircraft
operations or for purposes associated
with seaplane operations;
277
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§124.10
40 CFR Ch. 1 (7-1-04 Edition)
f.vii. For PSD pi-;i!ii>- t.nh .liTrcicd
Slate and local air poilti! ion i-orrioi
agencies, the chit-!' ••Av'ci.niv^ of : h,-
city and county where the riv-iio'. sta-
tionary source or major modification
would be located, any comprehensive
regional land use planning agency and
any State, Federa1 Land Manages. CM-
Indian Governing' Bo'l\ whose lands
may be affect eel by emissions ironi the
regulated activity:
iviii) For Class I injection well L:IC
permits only, state and local oil and
gas regulatory agencies and state agen-
cies regulating mineral exploration
and recovery:
fix) Persons on a mailing list devel-
oped by:
(A) Including those who request in
writing to be on the list:
(B) Soliciting persons for "area lists"
from participants in past permit, pro-
ceedings in that area: and
(C) Notifying the public of the oppor-
tunity 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 re-
questing written indication of contin-
ued interest from those listed. The Di-
rector may delete from the list the
name of any person who fails to re-
spond to such a request.i
(x)(A) To any unit of local govern-
ment having jurisdiction over the area
where the facility is proposed to be lo-
cated: and (B) to each Stale agency
having any authority under State law
with respect to the construction or op-
eration of such facility.
(2)(i) For major permits. NPDE3 and
404 general permits, iind permits that
include sewage sludge land application
plans under 40 CFR 501.15(ix>. pub-
lication of a notice in a daily or weekly
newspaper within the area affected by
the facility or activity; and for EPA-
issued NPDBS general permits, in the
FEDERAL REGISTER;
NOTE: The Director is eneouritred to pro-
vide as much notice as possible of the
NPDES or Section 404 draft H'enerai permit
to the facilities or activities to be covered by
the general permit.
(ii) For all RCRA permits, publica-
tion of a notice in a daily or weekly
-ii \V;'it--n t lie program is being ,nimin-
isteii-'d by an approved Stau>. in a man-
ner constituting ieyal notice tc the
public under State law: a-IK/
t !) Any other method reasonably cal-
culated to give- actual notice of the ac-
tion in question to the persons poten-
tially affected by it. including press re-
leases or any other forum or medium
to elicit public participation.
'd) Content? (applicul)li' lr> Siuia pro-
Name and address of the per-
mittee or permit applicant and. if dif-
ferent, of the facility or activity regu-
lated by the permit, except in the case
of NPDES and 404 draft general permits
under §§122.28 and 233.37:
(iiii A brief description of the busi-
ness conducted at the facility or activ-
ity described in the permit application
or the draft permit, for NPDES or 404
general permits when there is no a.ppli-
cation.
(ivi Name, address and telephone
number of a person from whom inter-
ested persons may obtain further infor-
mation, 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
iv) A brief description of the com-
ment procedures required by §§124.11
and 124.12 and the time and place of
any hearing that will be held, including
a statement of procedures to request a
hearing (unless a hearing has already
been scheduled) and other procedures
by which the public may participate in
the final permit decision.
ivi) For EPA-issued permits, the lo-
cation of the administrative record re-
quired by §124.9. the times at which the
record will be open for public inspec-
tion, and a statement that all data sub-
mitted by the applicant is available as
part of the administrative record.
278
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Environmental Protection Agency
§ 124.12
(vii> For NPDKS porn'iits only '.in-
cluding' those tor "sludge-only facili-
ties"), a geneial description of the U;ca-
tion of each existing or proposed dis-
charge point, and the name of tin? re-
ceiving water and the sludge use and
disposal praet.iee(s< and the location of
each sludge treatment, work? treating
domestic sewage and use or disposal
sites known at the time of permit ap-
plication For EPA-isHued NE'DE.S per-
mits 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.
(Ai The purpose of the proposed ac-
tivity (including-, in the case of fill ma-
terial, activities intended to be con-
ducted on the fill), a, description of the
type, composition, and quantity of ma-
terials to be discharged and means of
conveyance: and any proposed condi-
tions 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 de-
scription 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 con-
ducted under the permit:
(D) References to applicable statu-
tory or regulatory authority: and
(E) Any other available information
which may assist the public in evalu-
ating the likely impact of the proposed
activity upon the integrity of the re-
ceiving water.
(ix) Requirements applicable to cool-
ing water intake structures at new fa-
cilities under section ol8fb> of the
CWA. in accordance with part 125. sub-
part I. of this chapter.
fxi Any additional information con-
sidered necessary or proper.
(2) Public notices fur hearings. In addi-
tion Lo the general public notice de-
scribed in paragraph (did) of this sec-
tion, the public notice of a hearing
under §124.12 shall contain the fol-
lowing information:
ii) Reference to the date of previous
public notices relating to the permit:
(iii Date. time, ami place of the hear-
ing:
dip A bruT description of the iiature
.aid purpose of the hearing, including
! lie appluuhle rules and procedures;
.»i id
civ) For 10! permits only, a summary
of major issues raised to (late during
the public comment period.
i 104). and 271.14 (RCRA'D. In addition to
the general public notice described in
paragraph (did) of this section, all per-
sons identified in. paragraphs icul) m.
ui). (iii). and
-------
§124.13
40 CFR Ch. I (7-1-04 Edition)
whenever he or she receives written no-
tice of opposition to a draft permit and
a request for a hearing within 45 days
of public notice under §124.10(bxl):
whenever possible the Director shall
schedule a hearing under this section
at a location convenient to the nearest
population center to the proposed facil-
ity;
(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 author-
ity, 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 con-
cerning the draft permit. Reasonable
limits may be set upon the time al-
lowed for oral statements, and the sub-
mission of statements in writing may
be required. The public comment pe-
riod 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 tran-
script of the hearing shall be made
available to the public.
[48 FR 14264. Apr. 1. 1983. as amended at 49
FR 17718. Apr. 24. 1984: 50 FR 6941. Feb. 19.
1985: 54 FR 258. Jan. 4, 1989: 65 FR 30911. May
15. 2000]
$ 124.13 Obligation to raise issues and
provide information during the
public comment period.
All persons, including applicants.
who believe any condition of a draft
permit is inappropriate or that the Di-
rector'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 avail-
able arguments supporting their posi-
tion by the close of the public com-
ment period (including any public
hearing) under §124.10. Any supporting
materials which are submitted shall be
included in full and may not be incor-
porated by reference, unless they are
already part of the administrative
record in the same proceeding, or con-
sist of State or Federal statutes and
regulations, EPA documents of general
applicability, or other generally avail-
able reference materials. Commenters
shall make supporting materials not
already included in the administrative
record available to EPA as directed by
the Regional Administrator. (A com-
ment period longer than 30 days may
be necessary to give commenters a rea-
sonable opportunity to comply with
the requirements of this section. Addi-
tional time shall be granted under
§124.10 to the extent that a commenter
who requests additional time dem-
onstrates the need for such time.)
[49 FR 38051. Sept. 26. 1981]
§ 124.14 Reopening of the public com-
ment period.
(a Ml) The Regional Administrator
may order the public comment period
reopened if the procedures of this para-
graph could expedite the decision-
making process. When the public com-
ment period is reopened under this
paragraph, all persons, including appli-
cants, who believe any condition of a
draft permit is inappropriate or that
the Regional Administrator's tentative
decision to deny an application, termi-
nate a permit, or prepare a draft per-
mit 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 writ-
ten 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 Re-
gional Administrator.
(2) Public notice of any comment pe-
riod 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 re-
quest of any person, the Regional Ad-
ministrator may direct that the re-
quirements of paragraph (a)(l) 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 (aXI) of this
section will substantially expedite the
decisionmaking process. The notice of
280
-------
Environmental Protection Agency
§124.16
the draft permit, shall state whenever
this has been done.
(4) A comment period of longer than
GO days will often be necessary in com-
plicated proceeding's to give eom-
menters a reasonable opportunity to
comply with the requirements of this
section. Conirnenters 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 Argu-
ments submitted during the public
comment period, including information
or arguments required under §124,13.
appear to raise substantial new ques-
tions concerning a permit, the Re-
gional Administrator may take one or
more of the following actions:
(1) Prepare a new draft permit, appro-
priately modified, under §124.6;
(2) Prepare a revised statement of
basis under §124.7. a fact sheet, or re-
vised fact sheet under §124.8 and reopen
the comment period under § 124.14: or
13) Reopen or extend the comment pe-
riod under §124.10 to give interested
persons an opportunity to comment, on
the information or arguments sub-
mitted.
Public notice of any of the above
actions shall be issued under §124.10.
148 PR 1-1264. Apr. 1. 1983. a.s amended at 49
FR. 38051. Sept. 26. 1981: 65 FR 30911. May 15.
2000]
§ 124.15 Issuance and effective date of
permit.
(a) After the close of the public com-
ment period under §124.10 on a draft
permit, the Regional Administrator
shall issue a final permit decision tor a
decision to deny a permit for the active
life of a RCRA hazardous waste man-
agement facility or unit under §270.29).
The Regional Administrator shall no-
tify the applicant and each person who
has submitted written comments or re-
quested notice of the final permit deci-
sion. This notice shall include ref-
erence to the procedures for appealing
a decision on'a RCRA. UTC. PSD. or
NPDKB permit under §124.19 of this
part. For the purposes of this section, a
final permit decision means a final de-
cision to issue, deny, modify, revoke
and reissue, or terminate a permit.
(bj A final permit decision (or a deci-
sion to deny a permit for the active life
of a. RCRA hazardous waste manage-
ment 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 imme-
diately upon issuance.
148 FR 1126-1. Apr 1 1983. iu-s amended at 54
FR 9607. M,.r 7. 1989: 65 FR 30911 May 15.
2000!
§124.16 Stays of contested permit con-
ditions.
fa) Stay*. >li If a request for review of
a RCRA! IUC. or NPDKS permit under
§124.19 of this part is filed, the effect of
t.he contested permit conditions shall
be stayed and shall not be subject to
judicial review pending final agency
action. Uncontested permit conditions
shall he stayed only until the date
specified in paragraph (ax2)(i) of this
section. (No stay of a PSD permit is
available under this section.* If the
permit involves a new facility or new
injection well, new source, new dis-
charger or a recommencing discharger.
'he applicant shall he without a permit
for the proposed new facility, injection
well, sourc e or discharger pending final
agency action. .See also §124.60.
(2)(i) Uncontested condition.-- which
are not severable from those contested
shall be stayed together with the con-
tested conditions. The Regional Ad-
ministrator shall identify the stayed
provisions of permits for existing fa-
cilities, injection wells, and sources.
All other provisions of the permit for
the existing facility, injection well, or
source become fully effective and en-
forceable ;-!0 days after the date of the
notification required in paragraph
ia)(2>(ii) of this section.
(ii) The Regional Administrator
shall, as soon as possible after receiv-
ing notification from the KAB of the
281
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§124.17
40CFRCh. I (7-1-04 Edition)
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) Stays based on cross effects. (DA
stay may be granted based on the
grounds that an appeal to the Adminis-
trator under §124.19 of one permit may
result in changes to another EPA-
issued permit only when each of the
permits involved has been appealed to
the Administrator and he or she has
accepted each appeal.
(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 sec-
tion, comply with the conditions of the
existing permit which correspond to
the stayed conditions, unless compli-
ance with the existing conditions
would be technologically incompatible
with compliance with other conditions
of the new permit which have not been
stayed.
[48 FR 14264. Apr. 1. 1983. as amended at 65
FR 30911, May 15. 2000J
$ 124.17 Response to comments.
(a) (Applicable to State programs, sea
§§123.25 (NPDES), 145.11 (UIC), 233.26
(404), and 271.14 (RCRA).) At the time
that any final permit decision is issued
under §124.15, the Director shall issue a
response to comments. States are only
required to issue a response to com-
ments when a final permit is issued.
This response shall:
(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 per-
mit or the permit application (for sec-
tion 404 permits only) raised during the
public comment period, or during any
hearing.
*b) For EPA-issued permits, any doc-
uments cited in the response to com-
ments shall be included in the adminis-
trative record for the final permit deci-
sion 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) (Applicable to State programs, see.
§§123.25 (NPDES), 145.11 (UIC), 233.26
(404), and 271.14 (RCRA).) The response
to comments shall be available to the
public.
S 124.18 Administrative record for
final permit when EPA is the per-
mitting authority.
(a) The Regional Administrator shall
base final permit decisions under
§124.15 on the administrative record de-
fined in this section.
(b> The administrative record for any
final permit shall consist of the admin-
istrative record for the draft permit
and:
(1) All comments received during the
public comment period provided under
§124.10 (including any extension or re-
opening 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 re-
quired 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.
-------
Environmental Protection Agency
§124.19
all Tliis section applies to all final
RCRA. UIC, PSD. and NPDES permits
when the draft permit was subject to
the administrative record require-
ments of §124.9 and to all NPDES per-
mits when the draft permit was in-
cluded in a public notice after October
12. 1979.
(e) Material readily available at the
issuing Regional Office, or published
materials which are generally avail-
able and which are included in t'n^ ad-
ministrative record under the stand-
ards of this section or of §124.17 ("Re-
sponse to comments"), need not be
physically included in the same file as
the rest of the record as long as it, is
specifically referred 1,0 in the state-
ment of basis or fact sheet or in the re-
sponse to comments.
S 124.19 Appeal of RCRA, UIC, NPDES,
and PSD Permits.
(at Within 30 days after a RCRA. UIC.
NPDES. or PSD final permit, decision
(or a decision under 270.29 of this chap-
ter to deny a permit For the active life
of a RCRA hazardous waste manage-
ment, facility or unit) has been issued
under §124.15 of tins part, any person
who filed comments on that draft per-
mit or participated in the public1 hear-
ing 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
ehalle.nge the general permit in court.
or apply for an individual NPDES per-
mit 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)(3i. any interested
person may also petition the Director
to require an individual NPDES permit
for any discharger eligible for author-
ization to discharge under an NPDES
general permit. Any person who failed
to file comments or failed to partici-
pate 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 per-
mit decision. The 30-day period within
which a person may request, review
under this section begins with the serv-
ice of notice of the Regional Adminis-
trator's action unless a later date is
specified in that notice. The petition
shall include a statement of the rea-
sons 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 appro-
priate, 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 im-
portant policy consideration which the
Environmental Appeals Board should.
in its discretion, review.
(bt 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 no-
tice of the Regional Administrator's
action.
(o Within a reasonable time fol-
lowing the filing of the petition for re-
view, 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 Environ-
mental Appeals Board under paragraph
(a) or (b> of this section shall be given
as provided in §124.10. Public notice
shall set forth a briefing schedule for
the appeal and shall state that any in-
terested person may file an amicus
brief. Not.ice of denial of review sha.ll
lie sent only to the person*s> requesting'
review.
(d> The Regional Administrator, at
any time prior to the rendering of a de-
cision under paragraph ic» of this sec-
tion to grant or deny review of a per-
mit 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
283
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§124.20
40 CFR Ch. I (7-1-04 Edition)
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)(l) 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 pro-
cedures under this section are ex-
hausted. A final permit decision shall
be issued by the Regional Adminis-
trator:
(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 in-
clude a remand of the proceedings; or
(iii) Upon the completion of remand
proceedings if the proceedings are re-
manded, unless the Environmental Ap-
peals Board's remand order specifically
provides that appeal of the remand de-
cision will be required to exhaust ad-
ministrative remedies.
(2) Notice of any final agency action
regarding a PSD permit shall promptly
be published in the FEDERAL REGISTER.
(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 mat-
ters 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 reconsider-
ation directed to the administrator.
rather than to the Environmental Ap-
peals Board, will not be considered, ex-
cept in cases that the Environmental
Appeals Board has referred to the Ad-
ministrator pursuant to §124.2 and in
which the Administrator has issued the
final order. A motion for reconsider-
ation shall not stay the effective date
of the final order unless specifically so
ordered by the Environmental Appeals
Board.
[48 FH 14264. Apr. 1. 1983. as amended at 54
FH 9607. Mar. 7. 1989: 57 FR 5335. Feb. 13. 1992:
65 FR 30911. May 15. 2000]
$ 124.20 Computation of time.
(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 pe-
riod ends on the day before the act or
event.
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.
§ 124.21 Effective date of part 124.
(a) Part 124 of this chapter became ef-
fective 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 re-
quirement for NPDES permits to un-
dergo an evidentiary hearing after per-
mit issuance, and modified the proce-
dures for termination of NPDES and
RCRA permits, on June 14. 2000.
(c)(l) For any NPDES permit decision
for which a request for evidentiary
hearing was granted on or prior to
June 13. 2000. the hearing and any sub-
sequent proceedings (including any ap-
peal to the Environmental Appeals
Board) shall proceed pursuant to the
procedures of this part as in effect on
June 13. 2000.
(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 ef-
fect on June 13. 2000.
284
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Environmental Protection Agency
§124.31
(3) For any NPDES permit decision
for which a request for evidentiary
hearing was filed on or prior to June
18. 2000 but was neither granted nor de-
nied prior to that date, the Regional
Administrator shall, no later than July
14. 2000. notify the requester thai the
request for evidentiary hearing is being
returned without prejudice. Notwith-
standing the time limit in §124.19(a).
the requester may file an appeal with
the Board, in accordance with the
other requirements of §124.l9ia>. no
later than August 13. 2000.
(4) A party to a proceeding otherwi.se
subject to paragraph ic) (1) or (2) of
this section may, no later than June 14.
2000. request that the evidentiary hear-
ing process be suspended. The Regional
Administrator shall inquire of all other
parties whether they desire the evi-
dentiary hearing to continue. If no
party desires the hearing to continue.
the Regional Administrator shall re-
turn the request for evidentiary hear-
ing in the manner specified in para-
graph (O(3) of this section.
id! For any proceeding to terminate
an NPDES or RCRA permit commenced
on or prior to June 13. 2000. the Re-
gional 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.
165 FR 30911. May 15. 20001
Subpart B—Specific Procedures
Applicable to RCRA Permits
SOURC-K: 60 PR. 63431. Dec. 11. 1995. unless
otherwise noted.
§ 124.31 Pre-application public meet-
ing and notice.
(a) Applicability. The requirements of
this section shall apply to all RCRA
part B applications seeking initial per-
mits for hazardous waste management
units over which EPA has permit
issuance authority. The requirements
of this section shall also apply to
RCRA part B applications seeking- re-
newal of permits for such units, where
the renewal application is proposing a
significant change in facility oper-
ations. For the purposes of this sec-
tion, a "significant change" is any
change that would qualify as a class 3
permit modification under 40 CFR
270.42. For the purposes of this section
only, "hazardous waste management
units over which EPA has permit
Issuance authority" refers to hazardous
waste management units for which the
State where the units are located has
not been authorized to issue RCRA per-
mits pursuant to 40 CFR part 271. The
requirements of this section do not
apply to permit modifications under 40
CFR 270.42 or to applications that are
submitted for the sole purpose of con-
ducting post-closure activities or post-
closure activities and corrective action
at a facility.
(b) Prior to the submission of a part
B RCRA permit application for a facil-
ity, 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 activi-
ties. The applicant shall posi. a sign-in
sheet or otherwise provide a voluntary
opportunity for attendees to provide
their names and addresses.
(ci The applicant shall submit, a sum-
mary of the meeting, along with the
list of attendees and their addresses de-
veloped under paragraph (b) of this sec-
lion, and copies of any written com-
ments or materials submitted at the
meeting, to the permitting agency as a
part of the part B application, in ac-
cordance with 40 CFR 270.14(b).
(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 pro-
vide to the permitting agency upon re-
quest, documentation of the notice.
(1) The applicant shall provide public
notice In all of the following forms:
(i) A newspaper advertisement. The ap-
plicant shall publish a notice, fulfilling
the requirements in paragraph of
this section, m a newspaper of general
.irculation in the county or equivalent
jurisdiction thai hosts the proposed lo-
cation of the facility. In addition, the
Director shall instruct the applicant to
publish the notice in newspapers of
general circulation in adjacent coun-
ties or equivalent jurisdictions, where
285
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§124.32
40 CFR Ch. I (7-1-04 Edition)
the Director determines that such pub-
lication is necessary to inform the af-
fected public. The notice must be pub-
lished as a display advertisement.
(ii) A visible and accessible sign. The
applicant shall post a notice on a clear-
ly marked sign at or near the facility.
fulfilling the requirements in para-
graph (d)(2) of this section. If the appli-
cant places the sign on the facility
property, then the sign must be large
enough to be readable from the nearest
point where the public would pass by
the site.
(iii) A broadcast media announcement.
The applicant shall broadcast a notice,
fulfilling the requirements in para-
graph (d)(2) of this section, at least
once on at least one local radio station
or television station. The applicant
may employ another medium with
prior approval of the Director.
(iv) A notice to the permitting agency.
The applicant shall send a copy of the
newspaper notice to the permitting
agency and to the appropriate units of
State and local government, in accord-
ance with § 124.10(c)(l)(x).
(2) The notices required under para-
graph (dXD of this section must in-
clude:
(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 loca-
tion:
(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 ap-
plicant.
§ 124.32 Public notice requirements at
the application stage.
(a) Applicability. The requirements of
this section shall apply to all RCRA
part B applications seeking initial per-
mits for hazardous waste management
units over which EPA has permit
issuance authority. The requirements
of this section shall also apply to
RCRA part B applications seeking re-
newal of permits for such units under
40 CFR 270.51. For the purposes of this
section only, "hazardous waste manage-
ment, units over which EPA has permit
issuance authority" refers to hazardous
waste management units for which the
State where the units are located has
not been authorized to issue RCRA per-
mits pursuant to 40 CFR part 271. The
requirements of this section do not
apply to permit modifications under 40
CFR 270.42 or permit applications sub-
mitted for the sole purpose of con-
ducting post-closure activities or post-
closure activities and corrective action
at a facility.
(b) Notification at application sub-
mi ttal.
(1) The Director shall provide public
notice as set forth in §124.10(c)(l)(ix).
and notice to appropriate units of
State and local government as set
forth in §124.10(c). that a part B
permit application has been submitted
to the Agency and is available for re-
view,
(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 of-
fice, and a mailing address to which in-
formation, opinions, and inquiries may
be directed throughout the permit re-
view 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 loca-
tion on the front page of the notice:
and
(vi) The date that the application
was submitted.
(c) Concurrent with the notice re-
quired under §124.32(b) of this subpart,
the Director must place the permit ap-
plication and any supporting docu-
ments in a location accessible to the
public in the vicinity of the facility or
at the permitting agency's office.
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Environmental Protection Agency
§124.41
§ 124.;>3 Information repository,
'y with ;i.pprnp;\;i Ic
information ihnais/hout a time period
specified i-v the Director. The Director
may close the repository at his or tier
discretion, bast:! on the factors in
paragraph do of this section.
Subpart C—Specific Procedures
Applicable to PSD Permits
S 124.41 Definitions applicable to PSD
permits,
Whenever PSD permits are processed
under this part,, the following terms
shall have the following meanings:
Adininitilra'.o)'. K/'A, and Heyinnal Ad-
ministrator shall have the meaning's set
forth in §124.2. except when EPA has
delegated authority to administer
those retaliations to another agency
under the applicable subsection of 40
CFR 52.21. the term EPA shall mean
the delegate agency and the term Re-
gional AdnntiiAiralor shall mean the
i hief administrative officer of the dele-
gate agency.
Application means an application for
a PSD permit.
Appropriate Art ami Regulation*
means the Clean Air Act and applicable
regulations promulgated under it.
Approved program means a State im-
plementation plan providing' for
issuance of PSD permits which, has
been approved by EPA under the Clean
Air Act and <10 CFR part 51. An ap-
proved Stair is one administering an ap-
proved program. State Director as used in
§ 124.4 means the persoms! responsible
for issuing PSD permits under an ap-
proved program, or that person's dele-
gated represent a t ive.
Construction has the meaning given in
-iO CFR 52.21.
Director means the Regional Adminis-
trator.
Draft pcrr/iil shall have the meaning-
set forth in §124.2.
Facility nr acUiitii means a niu/or PSD
stationary source or major I'SD modifica-
tion.
Federal Land Manager has tire mean
ing' given in 40 CFH 52.2.1.
Indian dineri'iny Body has the mean-
ing given in 40 CFR 52.21.
Major PSD modification means a major
modification as defined in 40 CFR 52.21.
287
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§124.42
40CFRCh. I (7-1-04 Edition)
Majot PSD stationary source, means a
major stationary source, as defined in 40
CFR 52.21(b)(l)'.
Owner or operator means the owner or
operator of any facility or activity sub-
ject to regulation under 40 CFR 52.21 or
by an approved Sta*e.
Permit or PSD permit means a permit
issued under 40 CFR 52.21 or by an ap-
proved State.
Person includes an individual, cor-
poration, partnership. association.
State, municipality, political subdivi-
sion of a State, and any agency, de-
partment, or instrumentality of the
United States and any officer, agent or
employee thereof.
Regulated activity or activity subject to
regulation means a major PSD stationary
source or major PSD modification.
Site means the land or water area
upon which a major PSD stationary
source or major PSD modification is
physically located or conducted, in-
cluding but not limited to adjacent
land used for utility systems: as repair.
storage, shipping or processing areas:
or otherwise in connection with the
major PSD stationary source, or major
PSD modification.
State means a State, the District of
Columbia, the Commonwealth of Puer-
to Rico, the Virgin Islands. Guam, and
American Samoa and includes the
Commonwealth of the Northern Mar-
iana Islands.
§ 124.42 Additional procedures for PSD
permits affecting Class I areas.
(a) The Regional Administrator shall
provide notice of any permit applica-
tion for a proposed major PSD sta-
tionary source or major PSD modifica-
tion 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 re-
ceiving 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 sub-
mitted in writing, together with any
necessary sxipporting 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 dem-
onstrates that its emissions would ad-
versely affect a Class I area even
though the applicable increments
would not- be exceeded, 40 CFR
52.21(Q)(1) conversely authorizes EPA.
with the concurrence of the Federal
Land Manager and State responsible.
to grant certain variances from the
otherwise applicable emission limita-
tions to a facility or activity whose
emissions would affect a Class I area.)
(o Variances, authorized by 40 CFR
52.21 (5) through (ql(7) shall be han-
dled as specified in those paragraphs
and shall not be subject to this part.
Upon receiving appropriate documenta-
tion of a variance properly granted
under any of these provisions, the Re-
gional Administrator shall enter the
variance in the administrative record.
Any decisions later made in pro-
ceedings under this part concerning
that permit shall be consistent with
the conditions of that variance.
Subpart D—Specific Procedures
Applicable to NPDES Permits
§ 124.51 Purpose and scope.
(as This subpart sets forth additional
requirements and procedures for deci-
sionmaking for the NPDES program.
(b) Decisions on NPDES variance re-
quests 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.
(O As stated in 40 CFR 131.4. an In-
ihan 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 pro-
gram is likewise qualified for such
treatment for purposes of State certifi-
cation of water quality standards pur-
suant to section 401(a)(l) of the Act and
subpart D of this part.
[48 PR 14264. Apr. 1, 1983. as amended at 58
FR 67983. Dec. 22. 1993: 59 FR 64343. Dec. 14.
1994]
288
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Environmental Protection Agency
§124,53
$ 124.52 Permits required on a case-by-
casc basis.
(a) Various sections of part 122. sub-
part B allow the Director to determine.
on a case-by-case basis, that certain
concentrated animal feeding oper-
ations (§122.23). concentrated aquatic
animal production facilities (§122.24).
storm water discharges (§122.26). and
certain other facilities covered by gen-
eral permits (§122.28) that do not gen-
erally require an individual permit
may be required to obtain an indi-
vidual permit because of their con-
tributions to water pollution.
(bi Whenever the Regional Adminis-
trator decides that, an individual per-
mit, is required under this section, ex-
cept as provided in paragraph of
this section, the Regional Adminis-
trator shall notify the discharger in
writing of that decision and the rea-
sons for it, and shall send an applica-
tion form with the notice. The dis-
charger 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 consider-
ation during the public comment pe-
riod under §124.11 and in any subse-
quent hearing.
(c) Prior to a case-by-case determina-
tion that an individual permit is re-
quired for a storm water discharge
under this section (see §122.26(axl HV).
(c)(l)(vi. and (a)(9) of this chapter).
the Regional Administrator may re-
quire the discharger to submit a permit
application or other information re-
garding the discharge under section 308
of the CWA. In requiring such informa-
tion, 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 designa-
tion was proper will remain open for
consideration during the public com-
ment period under §124.11 and in any
subsequent hearing.
[55 FR 48075. Nov. .16. 1990. as amended ,U 60
FR 17957. Apr. 7. 1995: fiO FR 1946M. Apr. 18.
1995: 60 FR 40235. Aus. 7. 1995; 64 FR 68351,
Dec 8. 1999: 65 FR 30912, May 15. 2000!
« 124.53 State certification.
(as Under CWA section 401(.axl). EPA
may not issue a permit until a certifi-
cation is grant.ed or waived in accord-
ance with that section by the State in
which the discharge originates or will
originate.
(is) 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.
(ci 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 cer-
tifying State agency has granted or de-
nied certification under §124.55. or
waived its right to certify: and
(3i A statement that the State will be
deemed to have waived its right to cer-
tify unless that right is exercised with-
in 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 Ad-
ministrator finds that unusual cir-
cumstances require a longer time.
id) State certification shall be grant-
ed or denied within the reasonable time
specified under paragraph (cu3) of this
section. The State shall send a. notice
;yf its action, including a copy of any
corlifieatkm. to the applicant and the
Regional Administrator.
lei 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 appro-
priate requirements of State law:
(2i 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 re-
quirements listed in paragraph iexl) of
this section. For each more stringent
condition, the certifying State agency
shall cite the CWA or State law ref-
erences upon which that condition is
based. Failure to provide such a, cita-
tion waives the right to certify with re-
spect to that, condition: and
289
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§124.54
40 CFR Ch. I (7-1-04 Edition)
(3) A statement of the extent to
which each condition of the draft per-
mit 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 cer-
tify or object to any less stringent con-
dition which may be established during
the EPA permit issuance process.
§ 124.54 Special provisions for State
certification and concurrence on
applications for section 301(h)
variances.
(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 sec-
tion 301(h) variance (and so notify the
applicant and EPA) and. if the State is
an approved NPDES State and the per-
mit is due for reissuance. process the
permit application under normal proce-
dures: or
(2) Forward a certification meeting
the requirements of §124.53 to the Re-
gional Administrator.
(b) When EPA issues a tentative deci-
sion on the request for a variance
under CWA section 301(h». and no cer-
tification has been received under
paragraph (a) of this section, the Re-
gional Administrator shall forward the
tentative decision to the State in ac-
cordance with §124.53(b) specifying a
reasonable time for State certification
and concurrence. If the State fails to
deny or grant certification and concur-
rence under paragraph (a) of this sec-
tion within such reasonable time, cer-
tification 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 in-
corporating 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 for-
warded to the State by EPA for recerti-
ficatioii after the permit issuance proc-
ess: States must specify any conditions
required by State law. including water
quality standards, in the initial certifi-
cation.
§ 124.55 Effect of State certification.
(a) When certification is required
under CWA section 401(a)(l) no final
permit shall be issued:
(1) If certification is denied, or
(2) Unless the final permit incor-
porates 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 certifi-
cation is based, or if a court of com-
petent 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 certifi-
cation 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 con-
sistent with the more stringent condi-
tions which are based upon State law
identified in such certification. If the
certification or notice of waiver is re-
ceived after final agency action on the
permit, the Regional Administrator
may modify the permit on request of
the permittee only to the extent nec-
essary to delete any conditions based
on a condition in a certification invali-
dated by a court of competent jurisdic-
tion 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 Admin-
istrator shall disregard any such cer-
tification conditions, and shall con-
sider 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 certifi-
cation meeting the requirements of
§124.53(e). No such changes shall re-
quire EPA to submit the permit to the
State for recertification.
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 proce-
dures in this part.
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Environmental Protection Agency
(f) Nothing in this (section shall affect
EPA's obligation to comply with
§ 122 47. See CWA section SOKbsduC).
[48 FR M26-1. Apr. 1. 1983. as amended Af 65
FR 30912. May 15. 2000 i
§ 124,56 Fact sheets.
(Applicable- to State -program*, we
§123.25 (NPDES).) In addition to meet-
ing- the requirements of §124.8. NPDES
fact sheets shall contain the following:
(a) Any calculations or other nec-
essary explanation of the derivation of
specific effluent- limitations and condi-
tions 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 dis-
posal as required by §122.44 and reasons
why they are applicable or an expla-
nation of how the alternate effluent
limitations were developed.
(l)M.l i When the draft permit, contains
any of the following conditions, an ex-
planation of the reasons that such con-
ditions are applicable:
(i) .Limitations to control toxic pol-
lutants under §122.44(e) of this chapter:
(ii) Limitations on internal waste
streams under §122.45(i) of this chapter:
(till Limitations on indicator pollut-
ants under §125.3(g;> of this chapter.
(i\M Limitations set on a case-by-ease
basis under §125.3 (cM2i or (eu3) of this
chapter, or pursuant to Section
405(d)(4) of the CWA:
(v'i Limitations to meet the criteria
for permit issuance under §122.1 and a brief description, in-
cluding a quant ifative 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.
(hi [Reserved!
!48 FR 14264. Api. !. 1983: 50 FR 6941 Feb. 19.
!985. as anifiideti a! DO FR309L2. May 15. 2000J
§124.58 [Reserved!
§ 124.59 Conditions requested by the
Corps of Engineers and other gov-
ernment agencies.
(Applicable to Slate nroqrarnv. xrr
-------
§124.60
40 CFR Ch. I (7-1-04 Edition)
anchorage or navigation, then the Di-
rector shall include the specified condi-
tions 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 proce-
dures of the Corps of Engineers, and
may not be made through the proce-
dures provided in this part. If the con-
ditions are stayed by a court of com-
petent 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 Na-
tional Marine Fisheries Service, or any
other State or Federal agency with ju-
risdiction over fish, wildlife, or public
health advises the Director in writing-
that the imposition of specified condi-
tions upon the permit is necessary to
avoid substantial impairment of fish.
shellfish, or wildlife resources, the Di-
rector may include the specified condi-
tions 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 be-
fore issuing- a draft permit and may re-
flect their views in the statement of
basis, the fact sheet, or the draft per-
mit.
[48 PR 14264. Apr. 1. 1983. as amended at 54
PR 258. Jan. 4. 1989]
§ 124.60 Issuance and effective date
and stays of NPDES permits.
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)(l). if, for any offshore or
coastal mobile exploratory drilling rig
or coastal mobile developmental drill-
ing rig which has never received a final
effective permit to discharge at a
"site," but which is not a "new dis-
charger" or a "new source." the Re-
gional Administrator finds that com-
pliance with certain permit conditions
may be necessary to avoid irreparable
environmental harm during the admin-
istrative review, he or she may specify
in the statement of basis or fact sheet
that those conditions, even if con-
tested, shall remain enforceable obliga-
tions of the discharger during adminis-
trative review.
(bid) 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 agen-
cy action under §124.19(f). The Regional
Administrator shall notify, in accord-
ance with §124.16(a)(2)(ii). the dis-
charger and all interested parties of
the uncontested conditions of the final
permit that are enforceable obligations
of the discharger.
(2) When effluent limitations are con-
tested, but the underlying control
technology is not. the notice shall
identify the installation of the tech-
nology in accordance with the permit
compliance schedules (if uncontested)
as an uncontested. enforceable obliga-
tion of the permit.
(3) When a combination of tech-
nologies 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 be-
come enforceable 30 days after the date
of notice under paragraph (b)(l) of this
section.
(6) Uncontested conditions shall in-
clude:
(i) Preliminary design and engineer-
ing studies or other requirements nec-
essary to achieve the final permit con-
ditions which do not entail substantial
expenditures:
(ii) Permit conditions which will
have to be met regardless of the out-
come 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
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Environmental Protection Agency
§124.63
(iv) Construction activities, such as
segregation of waste streams or instal-
lation of equipment, which would par-
tially meet the final permit conditions
and could also be used to achieve the
discharger's proposed alternative con-
ditions.
(c) In addition to the requirements of
§124.16(0(2). when an appeal is filed
under §124.19 on an application for a re-
newal of an existing permit and upon
written request from the applicant-, the
Regional Administrator may delete re-
quirements from the existing permit
which unnecessarily duplicate
uncontested provisions of the new per-
mit.
[65 FR 30912. May 15. JOOOI
S 124.61 Final environmental impact
statement.
No final NPDKS permit for a new
source shall be issued until at least 30
day? after the date of issuance of a
final environmental impact, .statement
if one is required under 40 CF.R 6.805.
8 124.62 Decision on variances.
(Applicable to ,S7rtie prtjgrum*, see
§ 123.25 IMPDES).)
The EPA Office Director for
Water Enforcement- and Permits may
approve or deny any variance request
submitted under paragraph to of this
sect-ion. If the Office Director approves
the variance, the Director may prepare
;t draft permit incorporating the vari-
ance. Any public notice of a draft per-
mit for which a variance or modifica-
tion has !>een approved or denied shall
identify Uie applicable procedures for
appeal ing 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:
ill A variau<.:• based on the presence
of "fundamentally different factors"
from those ou which an effluent limita-
tions guideline was based.
(2) A variance based upon certain
water quality factors under CWA sec-
tion 301(g).
(f) The Administrator tor his dele-
gate) 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 per-
mitting authority. If the Adminis-
trator J58. Jan. 1 19891
5124.63 Procedures for variances
when SPA 5$ the permitting author-
ity,
;::;.; In Sias.es where EPA is the permit
issuing authority and a request for a
variance :s uSed as required by §122.21.
uie request
be processed as fol-
lows:
(l)(i) If. at the time, that a request
for a variance based on the presence of
293
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§ 124.64
40 CFR Ch. I (7-1-04 Edition)
fundamentally different factors or on
section 301(g) of the CWA is submitted.
the Regional Administrator has re-
ceived 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 del-
egate) 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 proc-
essing of the permit. In that case the
processing of the variance request may
be separated from the permit in ac-
cordance with paragraph (a)(3) of this
section, and the processing of the per-
mit 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 ques-
tion, the Regional Administrator, after
obtaining any necessary concurrence of
the EPA Deputy Assistant Adminis-
trator 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 proc-
essing of the permit. In that case the
processing of the variance request may
be separated from the permit in ac-
cordance with paragraph (a)(3) of this
section, and the processing of the per-
mit shall proceed without delay.
(2) If. at the time that a request for
a variance is filed the Regional Admin-
istrator has given notice under §124.10
of a draft permit covering the dis-
charge in question, but that permit has
not yet become final, administrative
proceedings concerning that permit
may be stayed and the Regional Ad-
ministrator shall prepare a new draft
permit including a tentative decision
on the request, and the fact sheet re-
quired by §124.8. However, if this will
significantly delay the processing of
the existing draft permit or the Re-
gional Administrator, for other rea-
sons, considers combining the variance
request and the existing draft permit
inadvisable, the request may be sepa-
rated from the permit in accordance
with paragraph (a)(3) of this section.
and the administrative dispositon of
the existing draft permit shall proceed
without delay.
(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 Admin-
istrator may prepare a new draft per-
mit and give notice of it under §124.10.
This draft permit shall be accompanied
by the fact sheet required by §124.8 ex-
cept that the only matters considered
shall relate to the requested variance.
[48 PR M264. Apr. 1. 1983. as amended at 51
FR 16030. Apr. 30. 1986]
§ 124.64 Appeals of variances.
(a) When a State issues a permit on
which EPA has made a variance deci-
sion, separate appeals of the State per-
mit and of the EPA variance decision
are possible. If the owner or operator is
challenging the same issues in both
proceedings, the Regional Adminis-
trator 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) Stays for section 301(g) variances. If
an appeal is filed under §124.19 of a
variance requested under CWA section
301(g). any otherwise applicable stand-
ards and limitations under CWA sec-
tion 301 shall not be stayed unless:
(1) In the judgment of the Regional
Administrator, the stay or the vari-
ance sought will not result in the dis-
charge 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 suc-
ceed on the merits of its appeal; and
(3) The discharger files a bond or
other appropriate security which is re-
quired by the Regional Administrator
294
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Environmental Protection Agency
PI 125
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 §§124.1(5 and 124.60.
(48 FR 14264, Apr. 1. 1983. as amended at 65
FR 30912, May 15, 2000]
§ 124.65 f Reserved!
§ 124.66 Special procedures for deci-
sions on thermal variances under
section 316(a).
(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 limita-
tions would be justified under CWA sec-
tion 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 rea-
sons at the time their permit applica-
tions are filed under §122.21. The Re-
gional Administrator will then decide
whether or not to make an early deci-
sion. If it is granted, both the early de-
cision 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 require-
ments 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 nec-
essary 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 Ad-
ministrator may issue a permit under
§124.15 for a term up to 5 years. This
permit shall require achievement of
the effluent limitations initially pro-
posed for the thermal component of the
discharge no later than the date other-
wise required by law. However, the per-
mit shall also afford the permittee an
opportunity to file a demonstration
under CWA section 31G(a) after con-
ducting such studies as are required
under 40 CPR part 125. subpart H. A
new discharger may not exceed the
thermal effluent limitation which is
initially proposed unless and until its
CWA section 316ta) variance request is
finally approved.
(o Any proceeding held under para-
graph ia> of this .section shall be pub-
licly noticed as required by §124.10 and
shall be conducted at a time allowing
the permittee to take necessary meas-
ures to meet the final compliance date
in the event its request for modifica-
tion of thermal limits is denied,
(d> Whenever the Regional Adminis-
trator defers the decision under CWA
section 316(a>. any decision under sec-
tion 3165
FR 30912. May 15. 2000]
PART 125—CRITERIA AND STAND-
ARDS FOR THE NATIONAL POL-
LUTANT DISCHARGE ELIMI-
NATION SYSTEM
Subpart A—Criteria and Standards tor Im-
posing Technology-Based Treatment
Requirements Under Sections 301(b)
and 402 of the Act
JStiC.
US5.1 Purpohf and scope.
125.2 Definitions
125,3 Technology-based treatment require-
ments In permits.
Subpart B—Criteria tor Issuance ot Permits
to Aquaculture Projects
.125.10 Purpose and scope.
125.lt Criteria.
Subpart C [Reserved]
Subpart D—Criteria and Standards for De-
termining Fundamentally Different Fac-
tors Under Sections 301{b>(l)(A),
301 (b)(2) (A) and (E) of the Act
125.30 Purpose ami scope.
125.31 Criteria.
125.32 Met nod of application.
Subpart E—Criteria lor ©ranting Economic
Variances From Best Available Tech-
nology Economically Achievable
Under Section 301 (c) of the Act [Re-
served]
295
-------
§125.1
40 CFR Ch. I (7-1-04 Edition)
Subpart F—Criteria (or Granting Water
Quality Related Variances Under Sec-
tion 301 (g) of the Act [Reserved]
Subpart G—Criteria tor Modifying the Sec-
ondary Treatment Requirements Under
Section 301 (h) of the Clean Water Act
125
125
125.
125
125
125
125
56 Scope and purpose.
.57 Law governing issuam-e of a section
301(h> modified permit,
.58 Definition*;.
.59 General.
.60 Primary or equivalent treatment re-
quirements.
61 Existence of and compliance with ap-
plicable water quality standards.
.62 Attainment or maintenance- of water
quality which assures protection ol pub-
lic water supplies: assures the protection
and propagation of a balanced, indige-
nous population of shellfish, fish, and
wildlife: and allows recreational activi-
ties.
.63 Establishment of a, monitoring pro-
gram.
,64 Effect of the dischnrM'e 011 other point
and nonpoint sources.
.65 Urban area pretreatment program.
.66 Toxics control program.
67 Increase in effluent volume c>:
amount of pollutants discharged.
.68 Special conditions for section 301(hi
modified permits.
PENDJX TO SUBPAKT G—APPLICANT QflCK-
Tiox!\"AiRE FOR MODIFICATION OF SKC-
o.xn.-vRi" TRBATMKNT RK
Subpart H—Criteria for Determining Alter-
native Effluent Limitations Under Sec-
tion 316(a) of the Act
125.70 Purpose and scope,
125.71 Definitions.
125.72 Early screening1 of applications for
section 316(a) variances.
125.73 Criteria and standards for the deter-
mination of alternative effluent limita-
tions under section 316(a).
Subpart I—Requirements Applicable to
Cooling Water Intake Structures for
New Facilities Under Section 316(b) of
the Act
125.80 What are the purpose and scope uf
this subpart?
125.81 Who is subject to this subpart?
125.82 When must I comply will: this f-nb-
part?
125.83 What special definitions apply to this
subpart?
125.84 As an owner or operator oi a new fa-
cility, what must I do to comply with
this subpart?
125,85 May alternative requirements be au-
thorized?
125.86 AK an owner or operator of a new fa-
cility, what must 1 collect ar.d submit
when I apply for my new or reissued
XPDES permit?
125.87 As an owner or operator of a .new fa-
cility, must I perform monitoring?
125,88 As an owner or operator of a new fa-
cility, must I keep records and report?
125.89 As the Director, what must I do to
comply with the requirements of this
sulipart?
Subparts J-K [Reserved]
Subpart L—Criteria and Standards for Im-
posing Conditions for the Disposal of
Sewage Sludge Under Section 405 of
the Act [Reserved]
Subpart M—Ocean Discharge Criteria
5.120 Scope and purpose,
5,121 Definitions.
•5.122 Determination of unreasonable
racial ion of the marine environment.
,5.123 Permit requirements,
I0.12-4 Information required to lie
mitt eel by applicant.
ArnioiUTY: The Clean Water Act. 33 U
1251 i't xcq., unless otherwise noted,
Surn;•!•:: -14 PR 32948.
otherwise rioted.
sub-
.S.C.
June 7. 1979. unless
Subpart A—Criteria and Standards
for Imposing Technology-
Based Treatment Require-
ments Under Sections 301(b)
and 402 of the Act
§ 125,1 Purpose and scope.
This subpart establishes criteria and
standards for the imposition of tech-
nology-based treatment requirements
in permits under section 30Kb) of the
Act. including the application of EPA
promulgated effluent limitations and
case-by-case determinations of effluent
limitations under section 402fa>(l) of
the Act,.
S 125.2 Definitions.
For the purposes of this part, any ref-
erence to the Act shall mean the Clean
Water Act of 1977 (CWA). Unless other-
wise noted, the definitions in parts 122.
123 and 124 apply to this part.
145 FR 33512. May 19. 1080J
296
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Environmental Protection Agency
§125.3
§ 125,3 Technology-based treatment re-
quirements in permits.
(a) Genera!. Technology-based treat-
ment requirements under section 30Kb)
of the Act represent the minimum
level of control that must be imposes!
in a permit issued under section 102 of
the Act. (See §§122,41, 122.42 and 122.44
for a discussion of additional or more
stringent effluent limitations and con-
ditions.) Permits shall contain the fol-
lowing technology-based treatment re-
quirements in accordance with the fol-
lowing1 statutory deadlines;
(1) For POTW's, effluent limitations
based upon:
(i) Secondary treatment—from date
of permit issuance: and
(ii) The best practicable waste treat-
ment technology —not later than July
1. 1983; and
(2) For dischargers other than
POTWs except as proyided in §122,29ul).
effluent limitations requiring:
(i) The best practicable control tech-
nology currently available (BPT)—
(A) For effluent limitations promul-
gated under Section 304 of the Act in
a permit issued after February 4. 1987,
compliance as expeditiously as prac-
ticable 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 limita-
tions compliance is required from the
date of permit issuance.
(ii) For conventional pollutants, the
best conventional pollutant control
technology (BCT)—
(AS For effluent limitations promul-
gated under section 304(b), as expedi-
tiously as practicable but in 110 case
later than three years after the date
such limitations are proimilpat-eU
under section 304ib). arid in no case
later than March 31. 1989.
(B) For effluent limitations estab-
lished on a case-by-case (BPJ) basis
under section 402( of the Act in
a permit issued after February 4. 1987.
compliance as expeditiously as prac-
ticable but in no case later than three
years after the date such limitations
are established and in no case later
than March 31. 1989:
mi) 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
(BATi—
(A) For effluent, limitations estab-
lished under section 304(b). as expedi-
t lously 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,
For permits issued on a case-by -
case (BPJ) basis under section
402(a)d>(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
-------
§125.3
40CFRCh. I (7-1-04 Edition)
(A) For effluent limitations promul-
gated under section 304 thermal variance
from BPT. BCT and BAT {subpart H).
(2) The following extensions of dead-
lines for compliance with technology-
based treatment requirements are au-
thorized by the Act and may bo applied
for under §124.53:
(i) For POTW's a section 301 in exten-
sion of the .secondary treatment dead-
line (subpart J>:
i, iis For dischargers other than
POTWs:
(A) A section 301(i) extension of the
BPT deadline (subpart ,1): and
(B) A section 301(k) extension of the
BAT deadline (subpart C).
(c) Methods of imposing ti-dinolof/y-
bascd treadnent req-uironentx in permits.
Technology-based treatment require-
ments may be imposed through one of
the following three methods:
(1) Application of EPA-promuLgated
effluent limitations developed under
section 304 of the Act to dischargers by
category or subcategory. These efflu-
ent limitations are not applicable to
the extent that they have been re-
manded or withdrawn. However, in the
case of a court remand, determinations
underlying1 effluent limitations shall be
binding in permit issuance proceedings
where those determinations are not re-
quired to be reexamined by a court re-
manding 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 sec-
tion 402(a)(l) of the Act. to the extent
that KPA-prornulgated effluent limita-
tions are inapplicable. The permit
writer shall apply the appropriate fac-
tors listed in §125.3(d) and shall con-
sider:
(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
(ih Any unique factors relating' to
the applicant.
[Cuntnicnt: These faciors must be considered
in al! eases, regai'dless of whether the permit.
is heint:' issued by KPA or an approved
State.)
(3) Through a combination of the
methods in paragraphs . the permit
writer must consider the following: fac-
tors:
(1) For BPT reyuire.me.nts: (i) The total
cost of application of technology in re-
lation to the effluent reduction bene-
fits to be achieved from such applica-
tion:
-------
Environmental Protection Agency
§125.3
(iii) The process employed:
(iv) The engineering aspects of the
application of various types of control
techniques;
The engineering aspects of the ap-
plication of various types of control
techniques:
(vi) Process changes; and
(vii) Non-water quality environ-
mental impact (incIn The cost of achieving' such efflu-
ent reduction; and
(vii Non-water quality environmental
impact (including energy require-
ments').
(e) Technology-based treatment re-
quirements are applied prior to or at
the point of discharge
(f) Technology-based treatment re-
quirements 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- wafer quality
standards on a case-by-case basis when;
(1) The technology-based treatment
requirements applicable to the dis-
charge are not sufficient to achieve the
standards:
(2) The discharger agrees to waive
any opportunity to request a variance
under section 301 ic). igi or ih'i of the
Act; and
(35 The discharger demonstrates that
such a technique is the preferred envi-
ronmental and economic method to
achieve the standards after consider-
ation of alternatives such as advanced
waste treatment, recycle and reuse.
land disposal, changes in operating
methods, and other available methods.
Technology-based effluent limita-
tions shall be established under this
subpart for solids, sludges, filter back-
wash, and other pollutants removed in
the course of treatment or control of
wastcwaters in the same manner as for
other pollutants.
illsil) The Director may set a permit
limit for a conventional pollutant at a
If-vel more stringent than the best con-
ventional pollution control technology
(BCTi. or a limit for a nonconventioiial
pollutant which shall not be subject to
modification under section 801 or <§•)
of the Act- where:
(ii Effluent limitations guidelines
specify the pollutant as an indicator
for a toxic pollutant, or
(JinA) The limitation reflects BAT-
level control of discharges of one or
more toxic pollutants whu.ii are
present in the waste stream, and a spe-
cific BAT limitation upon the toxic
pollutant!st is not feasible for eco-
nomic or technical reasons:
(B) The permit identifies which toxic
pollutants are intended to be con-
trolled 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 dis-
charges identified in paragraph
ihxl >(ii i(Ri of this section, and a find-
ing 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
(iiKA) The limitation reflects BAT-
level control of discharges (or an ap-
propriate level determined under sec-
tion 301(c.) or it-'.') of the Act) of one or
more hazardous substaiicets) which are
299
-------
§125.10
40 CFR Ch. I (7-1-04 Edition)
present in the waste stream, arid a spe-
cific BAT sor other appropriate) limita-
tion upon the hazardous substances) is
not feasible for economic or technical
reasons:
(B) The permit identifies which haz-
ardous substances are intended to be
controlled by use of the limitation; and
(C) The fact sheet required by §124.58
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 find-
ing that it would be economically or
technically infeasible to directly limit
the hazardous substance(s).
(ili) Hazardous substances which are
also toxic pollutants are subject to
paragraph (hid) 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 dif-
fers from that which would be required
if the toxic pollutant(s) or hazardous
substance(s) controlled by the limit
were limited directly.
(41 Toxic pollutants identified under
paragraph (h)(l> of this section remain
subject to the requirements of
§122.42(a)il) (notification of increased
discharges of toxic pollutants above
levels reported in the application
form).
(Clean Water Act. Sale Drinking Water Ant.
Clean Air Act. Resource Conservation and
Recovery Act: 42 U.S.C. 6905. 8912. 6925. 6927.
6974)
1.44 FR 32948. June 7. 1979. as amended at 4?>
PR 38512. May 19. 1980; 48 FR H298. Apr. 1.
1983: '19 FR 38052. Sept. 26, 1984: 50 FR 6941.
Feb. 19. 1985: 54 FR 257. Jan. 4. 1989)
Subpart B—Criteria tor Issuance of
Permits to Aquaculture Projects
§ 125.10 Purpose and scope.
(ai These regulations establish guide-
lines under sections 318 and 402 of the
Act for approval of any discharge of
pollutants associated with an aqua-
culture project.
ib> 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
aquae-illture projects under this sub-
part are NPDBS permits and are sub-
ject to the applicable requirements of
parts 122. 123 and 124. Any permit shall
include such conditions (including
monitoring' and reporting require-
ments) as are necessary to comply with
those parts. Technology-based effluent
limitations need not be applied to dis-
charges into the approved project ex-
cept with respect to toxic pollutants.
§125.11 Criteria.
(a) No NPDKB permit shall be issued
to an aquaculture project unless:
(1: The Director determines that the
aquaculfure project:
ii) Is intended by the project operator
lo 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
(iii Does not occupy a designated
project area which is larg'er that) 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 dis-
charged to the aquaculture project will
result in an increased harvest of orga-
nisms 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
to the immediate geographical area.
there will be minimal adverse effects
on the flora and fauna indigenous to
the area, and the total commercial
value of the introduced species is at
least equal to that of the displaced or
affected indigenous flora and fauna:
(4) The Director determines that the
crop will not have a significant poten-
tial for human health hazards resulting
from its consumption:
300
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Environmental Protection Agency
§125.30
<5'> The Director determines that mi-
gration of pollutants from the des-
ignated project area to waler out-shit: of
the aquaeulture project- will nob cause
or contribute to a violation of wa'r-r
quality standards or a violation of the
applicable .standards and limitations
applicable to the supplier of the pollut-
ant that would govern if the aqtux-
culture project were itself a. point
source. The approval of an aiiuaeulture
project shall not result in the eiilarge-
merit, of a pre-existing- mixing" zone
area beyond what had been designated
by the State for the original discharge.
(to No permit shall be issued for any
aquaculture projecl in conflict with a
plan or an amendment to a plan ap-
proved under section 208(b) of the Act.
(C) No permit shall be issued for any
aquaeulture project located in the ter-
ritorial sea. the waters of the contig-
uous zone, or the oceans, except in con-
formity with guidelines issued under
section 403CO of the Act.
«1) 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 des-
ignated project area shall not include
the entire width of a watercourse, since
all organisms indigenous to that water-
course might be subjected to dis-
charges of pollutants that would, ex-
cept 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, bar-
rier or containment, structure shall not
unduly alter the tidal regimen of an es-
tuary or interfere with migrations of
unconfmed aquatic species.
\Cummcnl: Any modifications described in
this paragraph which result in the discharge
of dredged or fill material into navigable wa-
ters may be subject to the permit require-
ments of section 404 of t he Act. j
(f} Any pollutants not required by or
beneficial to the aquaculture crop shall
not exceed applicable standards and
limitations when entering the des-
ignated project area.
Subpart C 1 Reserved]
Subpart D—Criteria and Standards
for Determining Fundamen-
tally Different Factors Under
Sections 301(b)(l)(A),
30 l(b) (2) (A) and (E) of the
Act
8 125,30 Purpose and scope.
•.ai This .subpart establishes the cri-
u-ria and standards to be used in deter-
mining- whether effluent limitations al-
ternative1 t;i those required by promul-
gated EPA effluent limitations guide-
lines under sections 301 and 304 of the
Act (hereinafter referred to as "na-
tional limits") should be imposed on a
discharge!' because factors relating to
t,,;e discharger"* facilities, equipment.
processes or other factors related to
the discharger are fundamentally dif-
ferent from the factors considered by
EPA in development of the national
limits. This subpart applies to all na-
tional 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 infor-
mation it can collect, develop and so-
licit regarding the factors listed in sec-
tions 304 In addition, such a
301
-------
§125.31
(Sect.. 301. ,'504. 306. 307. 308. and .VI <>l Ill--
Clean Water Act (the Federal \\an-r P<>i;u~
tiou Control Act Amendment? o; 1972. Pub
I,. 92-500 a;; amended by the Clear, Walei A-f
of W77. Pub. !... 95-217 it he "Ad">: Clean
Water Act. Hafe Drinking Water A'-t. Clean
Air Act. Re.-OLirce Conservation and Recov-
ery Act; 42 U.S.C. 6905. 6312. 6925. ti927. 69741
Ml KR 32948. June 7. 1979. as fun.-iuied ut 15
Fl'i 83512. May 19. 1980: 46 FK 9160. Jan, 28.
1981; 57 PR 52309. Nov. ly. 1982: -IB FK, 14293.
Apr, 1. 198H)
8125.31 Criteria.
(a) A request for the establishment of
effluent, limitations untlei this subpart
ifundamentally different factors vari-
ance) 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 limita-
tions or standards have been requested:
and
(2) Factors relating to the discharge
controlled by the permit are fundamen-
tally different from those considered
by EPA in establishing the national
limits: and
(3) The request for alternative efflu-
ent limitations or standards is made in
accordance with the procedural re-
quirements 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 limita-
tion or standard requested is no less
stringent than justified by the funda-
mental difference: and
(2) The alternative: effluent limi-
tation or standard will ensure com-
pliance with sections 208(e) and
SOKbXlXC) of the Act: and
(3) Compliance with the national lim-
its (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 pro-
portion to the removal cost, considered
during development of the national
limits: or
(ii) A non-water quality environ-
mental impact (including energy re-
quirements) fundamentally more ad-
40 CFR Ch. i (7-1-04 Edition)
\eix- than the impact considered dur-
ini> development of tin? national limits.
Compliance with the alternative
effluent limitation or standard would
not result in:
lii A removal cost wholly out of pro-
portion to the removal cost considered
during development of the national
limits; or
(ii) A non-water quality environ-
mental impact (including energy re-
quirements) fundamentally more ad-
verse than the impact considered dur-
ing- development of the national limits.
(d) Factors which may be considered
fundamentally different are:
d) The nature or quality of pollut-
ants contained in the raw waste load of
the applicant's process waste water:
[Ctinmicnl: ii) In determining whether factors
ccneerniny the discharger are fundamentally
different. EPA will consider, where relevant.
the applicable development document for the
national limits, associated technical and
economic data collected for use in devel-
oping each respective national limit, records
of leifal proceeding's, and written and printed
documentation including records of commu-
nication, etc.. relevant to the development
of respective national limit? which are kept
or. public file by EPA.
!2) Waste strearms) associated with a dis-
c'liatx**r"s process wastewater which were not
considered in the development of the na-
tional limits will not ordinarily be treated as
fundamentally different under paragraph (a!
ol' this section. Instead, national limits
should be applied to the other streams, and
the unique stream(s) should He subject to
limitations based on section 402(a)(lt of the
Act. See $125.2(0X2).]
(21 The volume of the discharger's
process wastewater and effluent dis-
charged:
(3) Non-water quality environmental
impact of control and treatment of the
discharger's raw waste load:
(4i Energy requirements of the appli-
cation of control and treatment tech-
nology;
(51 Ajre, size, land availability, and
configuration as they relate to the dis-
charger's equipment or facilities: proc-
esses employed; process changes: ancl
302
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Environmental Protection Agency
§125.57
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:
(!) The infeasibility of installing the
required waste treatment, equipment
within the time the Act allows.
{Comment: Under this sect-ion a variance re-
quest, may be approved if it, is based on fac-
tors which relate to the discharger's ability
ultimately to achieve national limits but not
if it is based on factors which merely affect
the discharger's ability to meet the statu-
tory deadlines of sections 301 and 307 of the
Act such as labor difficulties, construction
schedules, or unavailability of equipment. ]
(2) The assertion that the national
limits cannot be achieved with the ap-
propriate waste treatment facilities in-
stalled, if such assertion is not based
on factorts) listed in paragraph (d) of
this section;
[Comment: Review of the Administrator's ac-
tion in promulgating national limits is
available only through the judicial review
procedures set forth in section 50'Jtb) <\i the
Act.]
(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 limi-
tations than those required toy Federal
law.
§ 125,32 Method of application.
(a) A written request for a variance
under this subpart D shall be sub-
mitted in duplicate to the Director in
accordance with §§122.21 re-
garding the discharger's facility are
fundamentally different from the fac-
tors EPA considered in establishing the
national limits. The requester should
refer to all relevant material and infor-
mation, such as the published guideline
regulations development document, all
associated technical and economic data
collected for use in developing each na-
tional limit, all records of legal pro-
ceedings, 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 re-
quested are justified by the funda-
mental difference alleged in paragraph
(bid) of this section; and
(3) The appropriate requirements of
§125.31 have been met.
144 FR 32948, .fane 7. 1979, as amended at 65
FR 30913. May 15, 20001
Subpart E—Criteria for Granting
Economic Variances From
Best Available Technology
Economically Achievable
Under Section 301(c) of the
Act [Reserved]
Subpart F—Criteria for Granting
Water Quality Related Vari-
ances Under Section 301(g) of
the Act [Reserved]
Subpart G—Criteria for Modifying
the Secondary Treatment Re-
quirements Under Section
301 (h) of the Clean Water
Act
ACTHOKrn : Clean Water Act. as amended
by the Clean Water Art of 1977. 33 U.S.C. 1251
i'i sec/,, unle.s.s otherwise noted,
SOURCE: 59 FR. 40658, Ausr 9, 1994. unless
otherwise noted.
8 125.56 Scope and purpose,
This subpart establishes the criteria
to be applied by EPA in acting on sec-
tion 301(h) requests for modifications
to the secondary treatment require-
ments. It also establishes special per-
mit conditions which must be included
in any permit incorporating a section
301(h> modification of the secondary
treatment, requirements ("section
30l!h) modified permit").
§ 125,57 Law governing issuance of a
section 301 (h) modified permit.
(a) Section 301(ht of the Clean Water
Act provides that:
303
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§125.57
40 CFR Ch. 1 (7-1-04 Edition)
Administrator, with the concurrence of the
State, may issue a permit under section 402
which modifies the requirement? of para-
graph (bxlXB) of this section with respect to
the discharge of any pollutant from a pub-
licly 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 304ut)f6i of this
Act;
(2) The discharge of pollutant s In accord-
ance with such modified requirements will
not interfere, alone or in combination with
pollutants from other sources, with the at-
tainment or maintenance of that witter qual-
ity which assures protect ion of publk; water
supplies and protection and propagation of a
balanced indigenous population of shellfish.
fish, and wildlife, and allows recreational ac-
tivities, in and on the water1.
(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 th<> scope of
such monitoring is limited to include only
those scientific investigations which are nec-
essary to study the effects of the proposed
discharge:
i-l) Such modified requirements will not re-
sult in any additional requirements on any
other point or nonpoint source:
(5) All applicable pretreatmem. require-
ments for sources introducing waste into
sach treatment works will be enforced:
16) In the case of any treatment works
serving a population of 50.000 or more, with
respect to any toxic pollutant introduced
into stieli 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 dis-
charges from sach works, removes the same
amount of such pollutant as would be re-
moved 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 de-
signed to eliminate the entrance of toxic pol-
lutants from nonindustriul sources :m.o such
treatment works:
(8) There will be no new or suiist initially
increased discharges from the point source of
the pollutant to which the modification ap-
plies above that volume of discharge speci-
fied in the permit:
(9) The applicant at the time such modi-
fication becomes effective will be dis-
charging effluent winch has received at least
primary or equivalent treatment and which
meets the criteria established under section
304(anl) 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 ;t discharge into deep wa-
ters of the territorial sea or the waters of
the contiguous zone, or into saline estuarine
waters where there is strong tidal movement
and other hydrologiaal and geological char-
acteristics which the Administrator deter-
mines necessary to allow compliance with
paragraph (2) of this section, arid section
101iaH2) of this Act. For the purposes of
paragraph (9). "primary or equivalent treat-
ment" means treatment, by screening, sedi-
mentation, and skimming' adequate to re-
move at least 30 percent of the biological ox-
ygen demanding material and of the sus-
pended solids in the treatment works influ-
ent, and disinfection, where appropriate. A
municipality which applies secondary treat-
ment shall be eligible to receive a permit
pursuant to this subsection which modifies
ihe requirements of paragraph (b)(l)(B) of
this section with respect, to the discharge of
any pollutant from any treatment works
owned by such municipality into marine wa-
ters. No permit issued under this subsection
shall authorize the discharge of sewage
sludge into marine waters. In order for a per-
mit to be issued under this subsection for the
discharge of a pollutant into marine waters.
such marine waters must exhibit character-
istics assuring that water providing dilution
does not contain significant amounts of pre-
viously discharged effluent from such treat-
ment 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 sup-
port a balanced indigenous population of
shellfish, fish, and wildlife, or allow recre-
ation in and on the waters or which exhibit
ambient water quality below applicable
water quality standards adopted for the pro-
tection 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 pro-
hibition 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 cur-
rent or proposed discharge. Notwithstanding
any other provisions of this subsection, no
permit may be issued under this subsection
for discharge of a pollutant into the New
York Bight Apex consisting of the ocean wa-
ters of the Atlantic Ocean westward of 73 de-
grees 30 minutes west longitude and north-
ward of 40 degrees 10 minutes north latitude.
304
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Environmental Protection Agency
§125.58
Section SOKjxli of the Clean
Water Act provides that:
Any application filed under this spct.ion for
a modification of the provisions of—
(A) subsection fbKlKBi under subsection
tin of this section shall be filed not later
Than the 365th clay which begins after the
date of enactment- of the Municipal Waste-
water Treatment Construction Grant
Amendments of 1981. except that a publicly
owned treatment woiks which prior to De-
cember 31. 1982. had a contractual arrange-
ment to use a portion of the capacity of an
ocean outfall operated by another publicly
owned treatment, works which lias applied
for or received modit'i'-aUon under sub-
section (h) may apply lor 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.
(e) Section 22(ei 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 sub-
section (b)(l)(B) of section 301 of such Act
shall receive such permit during' the one-
year period which taea'ius on the date of en-
actment of this Act.
Section 303(b)<2i of the Water
Quality Act. Public Law 100-4, provides
that;
Section 301(h)(3) shall only apply to modi-
fications and renewals of modifications
which are tentatively or finally approved
after the date of the enactment of this Act.
(e) Section 303(8'» of the Water Qual-
ity Act provides that:
The amendments made to sections 301(h)
and (h>(2), as well as provisions of (hn6) and
(h)(9). shall not apply to an application for a
permit under section 301th) of the Federal
Water Pollution Control Act which has been
tentatively or finally approved by the Ad-
ministrator before the date of the enactment
ot this Act: except, that such amendments
Khali apply to all renewals of such permits
after such date of enactment.
8125,58 Definitions.
For the purpose of this subpart:
(a) Administrator means the EPA Ad-
ministrator or a person designated by
the EPA Administrator.
regulations.
-------
§ 125.58
40 CFR Ch. I (7-1-04 Edition)
(i) Improved discharge means the vol-
ume, composition, and location of an
applicant's discharge following:
(1) Construction of planned outfall
improvements, including, without limi-
tation, outfall relocation, outfall re-
pair, or diffuser modification: or
(2) Construction of planned treat-
ment system improvements to treat-
ment levels or discharge characteris-
tics; or
(3) Implementation of a planned pro-
gram to improve operation and mainte-
nance of an existing treatment system
or to eliminate or control the introduc-
tion of pollutants into the applicant's
treatment works.
(j) industrial discharger or industrial
source, means any source of non-
domestic pollutants regulated under
section 307(b) or (c) of the Clean Water
Act which discharges into a POTW.
(k) Modified discharge means the vol-
ume, composition, and location of the
discharge proposed by the applicant, for
which a modification under section
301*h) of the Act is requested. A modi-
fied discharge may be a current dis-
charge, improved discharge, or altered
discharge.
Cl) Neiv York' Bight Apex means the
ocean waters of the; Atlantic Ocean
westward of 73 degrees 30 minutes west
longitude and northward of 40 degrees
10 minutes north latitude.
(m) Nnninduslrial nource means any
source of pollutants which is not an in-
dustrial source.
(n) Ocean waters means those coastal
waters landward of the baseline of the
territorial seas, the deep waters of the
territorial seas, or the waters of the
contiguous zone. The term "ocean wa-
ters" excludes saline estuarine waters.
(o) Permittee means an NPDES per-
mittee with an effective section 301(h)
modified permit.
(p) Pesticides means rtemeton.
guthion. malathion. mirex.
methoxychlor. and parathion,
ectional annual mean salinities great-
er than twenty-five (25) parts per thou-
sand.
(wi Secondary removal equivalency
means that the amount of a toxic pol-
lutant removed by the combination of
the applicant's own treatment of its in-
fluent and pretreatment by its indus-
trial users is equal to or greater than
the amount of the toxic pollutant that
would be removed if the applicant were
to apply secondary treatment to its
discharge where the discharge has not
undergone pretreatment by the appli-
cant's industrial users.
{>;) Secondary treatment means the
term as defined in 40 CFR part 133.
306
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Environmental Protection Agency
§125.59
Shellfish, fish, and wildlife means
any biological population or commu-
nity that might be adversely affected
by the applicant's modified discharge.
Stressed waters means those ocean
waters for which an applicant can dem-
onstrate to the satisfaction of the Ad-
ministrator, that, the absence of a bal-
anced indigenous population is caused
solely by human perturbations other
than the applicant's modified dis-
charge.
faa) 7'o.tk; pollutants means those sub-
stances listed in 40 CPR 401.15.
(bb) Water quality criteria moans sci-
entific data and guidance developed
and periodically updated by EPA under
section 304(H of the Clean Water
Act, which are applicable to marine
waters.
ice) Water quality standards means ap-
plicable water quality standards which
have been approved, left in effect, or
promulgated under section 303 of Che
Clean Water Act.
(dd> Zoni- of initial dilution (ZID)
means the region of initial mixing' sur-
rounding or adjacent to the end of the
outfall pipe or diffuser ports, provided
that the ZID may not be larger than al-
lowed by mixing zone restrictions in
applicable water quality standards.
§ 125.59 General,
(a) .Basis for application. An applica-
tion under this subpart shall be based
on a current, improved, or altered dis-
charge into ocean waters or saline es-
tuarine waters,
(b) Prohibitions. No section 301(h)
modified permit shall be issued;
(11 Where such issuance would not. as-
sure compliance with all applicable re-
quirements of this subpart and part 122;
(2) For the discharge of sewage
sludge;
<3> Where such issuance would con-
flict with applicable provisions of
State, local, or other Federal laws or
Executive Orders. This includes com-
pliance with the Coastal Zone Manage-
ment Act of 1972. as amended. 16 U.H.C.
1451 t't seq.: the Endangered Species Act
of 1973. as amended. 16 U.S.G. 1531 t>t
wq.: and Title III of the Marine Protec-
tion, Research and Sanctuaries Act. as
amended. 16 U.S.C. 143.1 at see/.:
(-1) Where the discharge of any pollut-
ant enters into saline estuarine waters
which at the time of application do not
support a balanced indigenous popu-
lation of shellfish, fish, and wildlife, or
allow recreation in and on the waters
or which exhibit ambient water quality
below applicable water quality stand-
ards adopted for the protection of pub-
lic water supplies, shellfish, fish, and
wildlife or recreational activities or
such other standards necessary to as-
sure 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 char-
acteristics and the applicant's current
or proposed discharge: or
(5) Where the discharge of any pollut-
ant is into the New York Bight Apex.
(,c) Application*. Each applicant for a
modified permit under this subpart
shall submit an application to EPA
signed in compliance with 40 CFR part
122. subpart B, which shall contain:
(1) A signed, completed NPDES Ap-
plication Standard form A. parts I. II.
Ill:
(2) A completed Application Ques-
tionnaire:
(3) The certification in accordance
with 40 CFR 122.22td):
(4) In addition to the requirements of
§125.59(o (li through (3). applicants for
permit renewal shall support continu-
ation of the mollification by supplying'
to EPA the results of studies and moni-
toring pei formed in accordance with
§125.63 during the life of the permit.
Upon a demonstration meeting' the
•statutory c.iiteria and reqiiirenients oi*
this subpart-, the permit may be re-
newed under the applicable procedures
of 40 CFR part 124.
(d) Revisions it) application*. tl>
POTWs which submitted applications
in accordance with the June 15. 1979,
regulations (44 FR 34784 > may revise
their applications one time following a
tentative decision to propose changes
to treatment levels and.'or outfall and
diifuser location and design in accord-
ance with § 125.59: f')<2)9(fK2)
-------
§125.59
40 CFR Ch, I (7-1-04 Edition)
treatment levels and.or outfall and dif-
fuser location and design must he justi-
fied on the basis of substantial changes
in circumstances beyond the appli-
cant's control since the time of appli-
cation submission.
(3) Applicants authorized or re-
quested to submit additional informa-
tion under §125.59(g) may submit a re-
vised application in accordance with
§125.59(f)(2) and
data as needed to demonstrate compli-
ance with this subpart:
(2) and 125.f>4 A project plan for achieving com-
pliance. The project plan shall include
any necessary data collection activi-
ties, submittal of additional informa-
tion, and or development of appropriate
pretreatment limits to demonstrate
compliance with §125.65. The Adminis-
trator will review the project plan and
may require revisions prior to submis-
sion of the additional information.
uii) 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 com-
plete:
< R) Obtain new State determinations
under §§125.61(b)<2) and ]25.64(bi: and
fC» Provide the certification de-
scribed in paragraph io(3) of this sec-
tion.
(2) The information required under
this paragraph must be submitted in
accordance with the schedules in
§125,59(f)i'S)ni). If the applicant does
not meet these schedules for compli-
ance. EPA may deny the application on
that basis.
(f) Deadline* and distribution- • (1) Ap-
plications..(i) The application for an
original 301 authorized to provide certifi-
cation, concurrence under §§124.53
308
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Environmental Protection Agency
§125.59
through 124.55 on or before the date the
application is submitted to EPA,
(2i Revisions lt> Applications, ;i) Appli-
cants desiring to revise their applica-
tions under §125.59 (d)il) or (d)<2) must:
(A) Submit to the appropriate Re-
gional Administrator a letter of intent
to revise their application either with-
in 45 days of the date of BPA's ten-
tative decision on their original appli-
cation 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 ten-
tative decision under 10 CFR part 124
will be stayed.
(B) Submit the revised, application as
described for new applications in
§125.59(f)d) either within one year of
the date of BPA's tentative decision on
their original application or within one
year of November 26. 1982, if a tentative
decision has already been made, which-
ever is later.
iii) Applicants desiring to revise
their applications under §125.59(d)(3)
must submit the revised application as
described for new applications in
§125,59if)(ll concurrent with submission
of the additional information under
§125,59(g>.
(3) Deadline for additional informa-
tion to demonstrate compliance with
§§125.60 and 125.65.
(1) A letter of intent required under
§125.59(e)(l) 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 Ad-
ministrator issues a tentative decision
on an application. Following receipt by
EPA of a letter of intent containing
the information required in
§125.59(6X1). further EPA proceeding's
on the tentative decision under 40 GFR
part 124 will be stayed.
(ii) The project plan submitted under
§125,59(eHI) shall ensure that the appli-
cant meets all the requirements of
§6125.60 and 125,65 by the following
deadlines:
(A) By August, 9. 1998 for applicants
that are not grandfathered under
§125.59
is a basis for denial of the application.
igMl) The Administrator may author-
ize 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 011
current/modified discharge characteris-
tics, water quality, biological condi-
tions or oceanographic characteristics
must;
ii) Demonstrate that they made a
diligent effort to provide such informa-
tion with their application and were
unable to do so. and
(ii) Submit a plan of study, including
a schedule, for data collection and aub-
mittal of the additional information.
EPA will review the plan of study and
may require revisions prior to author-
izing submission of the additional in-
formation.
ch) Tentative decisions on section 301(h)
modifications. The Administrator shall
grant a tentative approval or a ten-
tative denial of a section 301(h) modi-
fied permit application. To qualify for
& tentative approval, the applicant
shall demonstrate to the satisfaction of
the Administrator that it is using good
faith means to come into compliance
with all the requirements of this sub-
part and that it will meet all such re-
quirements based on a schedule ap-
proved by the Administrator. For com-
pliance with §§125.60 and 125.65. such
schedule shall be in accordance with
§125.59(f)(3Kii).
(i) Decisions on section 301(h) modifica-
tions, (1) The decision to grant or deny
309
-------
§ 125.60
40 CFR Ch. ! (7-1-04 Edition)
a section 301 di) modification shall 1> modified
permit if the Director has indicated an
intent to do so in the written concur-
rence.
(4) Any section 3Ql«h) modified per-
mit shall:
(i> Be issued in accordance; with the
procedures set, forth in 40 CPR part 124,
except that, because section 301ih) per-
mits may be issued only by EPA. the
terms "Administrator or a person des-
ignated by the Administrator'" shall he
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 SOlih) deter-
minations shall be governed by the pro-
cedures in 40 CPR part 124.
(j) Grand-fathering provision. Appli-
cants that received tentative or final
approval for a section SOldi) modified
permit prior to February 4. 1987, are
not subject to §125.60. the water qual-
ity criteria provisions of §125.62(a)il).
or §125.65 until the time of permit re-
newal. In addition, tf permit, renewal
will occur prior to August 9. 1996, appli-
cants may have additional time to
come into compliance with §§125.60 and
125.65. as determined appropriate by
EPA on a case-by-case basis. Such ad-
ditional time, however, shall not ex-
tend beyond August 9. 1996. This para-
graph does not apply to any applica-
tion that was initially tentatively ap-
proved, but as to which EPA withdrew
its tentative approval or issued a ten-
tative denial prior to February 4. 1987.
S 125.BO Primary or equivalent treat-
ment requirements.
i at The applicant shall demonstrate
that, rit the time its modification be-
comes effective, it will be discharging'
effluent, that lias received at least pri-
mary or equivalent treatment.
(b) The applicant shall perform moni-
toring to ensure, based on the monthly
average results of the monitoring, that
the effluent it discharges has received
primary or equivalent treatment.
(cHi) An applicant may request that
the demonstration of compliance with
the requirement under paragraph (b) of
this section to provide 30 percent re-
moval of BOD be allowed on an aver-
aging' basis different from monthly
(e.g.. quarterly), subject to the dem-
onstrations provided in paragraphs
fct(lMi), and (iii) of this section.
The Administrator may approve such
requests if the applicant demonstrates
to the Administrator's satisfaction
that:
lit The applicant's POTW is ade-
quately 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
(iiii 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 in-
clude seasonally dilute influent BOD
concentrations due to relatively high
(although nonexcessive) inflow and in-
filtration: relatively high soluble to in-
soluble BOD ratios on a fluctuating
basis: or cold climates resulting in cold
influent, Circumstances beyond the ap-
plicant's control shall not include less
concentrated wastewater due to exces-
sive inflow and infiltration (I&I). The
determination of whether the less con-
centrated wastewater is the result of
excessive I&I will be based on the defi-
nition of excessive I&I in 40 CFR
35.2005(bM16) plus the additional cri-
terion that inflow is nonexcessive if
the total flow to the POTW (i.e.. waste-
water plus inflow plus infiltration) is
less than 275 gallons per capita per day.
310
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Environmental Protection Agency
§125.62
(2) In no event shall averaging on a
less frequent basis than annually lie al-
lowed.
[59 FK 40658. Aug. 9. 199-1. as amended »t 81
FR 45833. Aug. 29, 1996]
§ 125,61 Existence of and compliance
with applicable water quality
standards.
(a) There must exist a water quality
standard or standards applicable to the
pollutant(s) for which a section SQlihs
modified permit is requested, includ-
ing:
(1) Water quality standards for bio-
chemical oxygen demand or dissolved
oxygen:
(2) Water quality standards for sus-
pended solids, turbidity, light trans-
mission, light scattering, or mainte-
nance of the euphotic zone; and
(3) Water quality standards for pH.
(b) The applicant must; d) Dem-
onstrate that the modified discharge
will comply with the above water qual-
ity standard(s): and
(2) Provide a determination signed by
the State or interstate agency!us au-
thorized to provide certification under
§§124.53 and 124.54 that the proposed
modified discharge will comply with
applicable provisions of State law in-
cluding water quality standards. This
determination shall include a discus-
sion of the basis for the conclusion
reached.
§ 125.62 Attainment or maintenance of
water quality which assures protec-
tion of public water supplies;
assures the protection and propaga-
tion of a balanced indigenous popu-
lation of shellfish, fish, and wildlife;
and allows recreational activities.
(a) Physical characteristic;, of dis-
charge, d) At the time the 301(h) modi-
fication becomes effective, the appli-
cant's outfall and diffuser must be lo-
cated and designed to provide adequate
initial dilution, dispersion, and trans-
port of wastewater such that the dis-
charge does not exceed at arid beyond
the zone of initial dilution:
(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 cor-
responds to the EPA water quality cri-
terion for the pollutant.
For a known or suspected
carcinogen, the Administrator shall de-
termine the pollutant concentration
that shall not be exceeded. To make
this determination, the Administrator
shall first determine a level of risk as-
sociated with the pollutant that is ac-
ceptable for purposes of this section.
The Administrator shall then use the
information in the section 304(aMl)
water quality criterion document, sup-
plemented by all other relevant infor-
mation, to determine the specific pol-
lutant concentration that corresponds
to the identified risk level.
(Bi For purposes of paragraph
ia)(2)(iixA.) of this section, an accept-
able risk level will be a single level
311
203-159 0-11
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§125.62
40 CFR Ch, 1 (7-1-04 Edition)
that has been consistently used, as de-
termined by the Administrator, as the
basis of the State's EPA-approved
water quality standards for carcino-
genic pollutants. Alternatively, the
Administrator may consider a State's
recommendation to use a risk level
that has been otherwise adopted or for-
mally proposed by the State. The State
recommendation must demonstrate, to
the satisfaction of the Administrator,
that the recommended level is suffi-
ciently 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 re-
view the selection of the risk level, in
accordance with provisions of State
law and public participation require-
ments of 40 CFR part 25. If the Admin-
istrator 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 accept-
able risk level based on all relevant in-
formation.
(iii) For human health criteria for non-
carcinogens: For noncarcinogenic pol-
lutants, the pollutant concentrations
that must not be exceeded are the nu-
meric ambient values, if any. specified
in the EPA section 304(a)(l) water qual-
ity criteria documents as protective
against the potential toxicity of the
contaminant, through ingestion of con-
taminated aquatic organisms.
(3) The requirements of paragraphs
(aid) and (a><2) of this section apply in
addition to. and do not waive or sub-
stitute for, the requirements of §125.61.
Impact o] discharge on public water
supplies. (1) The applicant's modified
discharge must allow for the attain-
ment or maintenance of water quality
which assures protection of public
water supplies.
(2) The applicant's modified dis-
charge must not:
(i) Prevent a planned or existing pub-
lic water supply from being used, or
from continuing to be used, as a public;
water supply: or
-------
Environmental Protection Agency
§125.63
(2) There must be no Federal. State,
or local restrictions on recreational ac-
tivities within the vicinity of the ap-
plicant'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 dis-
charging a secondary treatment efflu-
ent.
(e) Additional requirements for applica-
tions based on improved or altered dis-
charges. An application for a section
301(h) modified permit on the basis of
an improved or altered discharge must
include:
<1) A demonstration that such im-
provements or alterations have been
thoroughly planned and studied and
can be completed or implemented expe-
ditiously:
(2) Detailed analyses projecting
changes in average and maximum
monthly flow rates and composition of
the applicant's discharge which are ex-
pected to result from proposed im-
provements or alterations:
(3) The assessments required by para-
graphs (a) through id) of this section
based on its current discharge: and
(4) A detailed analysis of how the ap-
plicant's planned improvements or al-
terations will comply with the require-
ments of paragraphs (a) through id) of
this section.
(f) Stressed water*. An applicant must
demonstrate compliance with para-
graphs (a) through (e) of this section
not only on the basis of the applicant's
own modified discharge, but, also tak-
ing into account the applicant's modi-
fied discharge in combination with pol-
lutants from other sources. However, if
an applicant which discharges into
ocean waters believes that its failure
to meet the requirements of para-
graphs (a.) through (e) of this section is
entirely attributable to conditions re-
sulting from human perturbations
other than its modified discharge (in-
cluding, without limitation, other mu-
nicipal or industrial discharges,
nonpoint source runoff, and the appli-
cant's previous discharges), the appli-
cant need not demonstrate compliance
with those requirements if it dem-
onstrates, to the satisfaction of the Ad-
ministrator, that its modified dis-
charge does not or will not:
(1) Contribute to. increase, or perpet-
uate 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 de-
creases.
$ 125.63 Establishment of a monitoring
program.
(a) General requirements. (1) The appli-
cant must:
(i) Have a monitoring program that
is:
(A) Designed to provide data to
evaluate the impact of the modified
discharge on the marine biota, dem-
onstrate compliance with applicable
water quality standards or water qual-
ity criteria, as applicable, and measure
toxic substances in the discharge, and
Limited to include only those sci-
entific Investigations necessary to
study the effects of the proposed dis-
charge;
(ii) Describe the sampling tech-
niques, schedules and locations (includ-
ing appropriate control sites), analyt-
ical techniques, quality control and
verification procedures to be used in
the monitoring program:
(iii) Demonstrate that it has the re-
sources 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 ex-
tent of the monitoring- program taking
into consideration the applicant's rate
of discharge, quantities of toxic pollut-
ants discharged, and potentially sig-
nificant impacts on receiving water
quality, marine biota, and designated
water uses.
(2) The Administrator may require
revision of the proposed monitoring
program before issuing a modified per-
mit and during the term of any modi-
fied permit.
(b) Biological monitoring program. The
biological monitoring program for both
313
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§125.64
40 CFR Ch. I (7-1-04 Edition)
small and large applicants shall pro-
vide data adequate to evaluate the im-
pact of the modified discharge on the
marine biota,
(1) Biological monitoring shall in-
clude to the extent practicable:
(i) Periodic surveys of the biological
communities and populations which
are most likely affected by the dis-
charge to enable comparisons with
baseline conditions described in the ap-
plication and verified by sampling at
the control stations/reference sites dur-
ing' the periodic surveys:
iii) Periodic determinations of the
accumulation of toxic pollutants and
pesticides in organisms and examina-
tion 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 im-
pact, and at appropriate reference sites
to support the water quality and bio-
logical surveys and to measure the ac-
cumulation of toxic pollutants and pes-
ticides: 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 (bul)
are met: or
(iii) An improved or altered discharge
involving outfall relocation, the bio-
logical monitoring shall:
i A) Include the current discharge site
until such discharge ceases: and
(B) Provide baseline data at the relo-
cation site to demonstrate the impact
of the discharge and to provide the
basis for demonstrating that require-
ments of §125.62(c) will be met.
(c) Water Quality monitoring program.
The water quality monitoring program
shall to the extent practicable:
(1) Provide adequate data for evalu-
ating compliance with water quality
standards or water quality criteria, as
applicable under §125.62(a)d>:
(2) Measure the presence of toxic pol-
lutants which have been identified or
reasonably may be expected to be
present in the discharge.
(d) Effluent monitoring program. (1) In
addition to the requirements of 40 CFR
part 122. to the extent practicable.
monitoring of the POTW effluent shall
provide quantitative and qualitative
data which measure toxic substances
and pesticides in the effluent and the
effectiveness of the toxic control pro-
gram.
(2) The permit shall require the col-
lection of data on a frequency specified
in the permit to provide adequate data
for evaluating compliance with the
percent removal efficiency require-
ments under §125.60.
5125,64 Effect of the discharge on
other point and nonpoint sources.
(a) No modified discharge may result
in any additional pollution control re-
quirements on any other point or
nonpoint source.
-------
Environmental Protection Agency
§125.65
POTW by one or more industrial dis-
chargers and that seeks a section SOlchs
modification,
(2s The requirements of this section
apply in addition to any applicable re-
quirements of 40 CFR part 403. and do
not waive or substitute for the part 403
requirements in any way.
(b> Toxic pollutant control, (1) As to
each toxic pollutant introduced by an
industrial discharger, each POTW sub-
ject to the requirements of this section
shall demonstrate that it either:
(i) Has an applicable pretreatment
requirement in effect in accordance
with paragraph EC) of this section: or
(ii) Has in effect a program that
achieves secondary removal equiva-
lency in accordance with paragraph
-------
§125.66
40 CFR Ch. I (7-1-04 Edition)
§ 125,66 Toxics control program,
(a) Chemical analysis, (1) The appli-
cant shall submit at the time of appli-
cation a chemical analysis of its cur-
rent discharge for all toxic pollutants
and pesticides as defined in §125.58 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.
§ 125.67 Increase in effluent volume or
amount of pollutants discharged.
(a) No modified discharge may result
in any new or substantially increased
discharges of the pollutant to which
the modification applies above the dis-
charge specified in the section 301 (h)
modified permit.
(b) Where pollutant discharges are
attributable in part to combined sewer
overflows, the applicant shall minimize
existing overflows and prevent in-
creases in the amount of pollutants
discharged.
(c) The applicant shall provide pro-
jections of effluent volume and mass
loadings for any pollutants to which
316
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Environmental Protection Agency
Pt, 125, Subpt, G, App.
the mortification applies in 5-year in-
crements for the design life of its facil-
ity.
§ 125.68 Special conditions for section
301 (h) modified permits.
Each section 301(h) modified permit
issued shall contain, in addition to all
applicable terms and conditions re-
quired by 40 CFR part 122. the fol-
lowing:
(at Effluent limitations and mass
loadings which will assure compliance
with the requirements of this suhpart:
ibi A schedule or schedules of compli-
ance for;
(1) Pretreatment program develop-
ment required by §125.66 criteria. If there are ques-
tions in this regard, applicants should con-
tact the appropriate EPA Regional Office for
guidance.
3. Guidance for responding to this ques-
tionnaire is provided by the newly amended
section 301th) technical support document.
Where available information is incomplete
and the applicant needs to collect additional
data during' the period it is preparing' the ap-
plication or a letter of intent, EPA encour-
ages the applicant to consult with EPA prior
to data collection and submission. Such con-
sultation, particularly if the applicant pro-
vides a project, plan, will help ensure that
the proper data are gathered in the most effi-
cient matter
4, The notation (Li means large applicants
must respond to the question, and tS) means
small applicants must respond,
II. GENEK-AL INFORMATION" AND BASJC DATA
RBQUIREMENTS
A. Treutmi'nt System Description
1. (L.S) On which of the following are j'ou
basing your application: a current discharge.
317
-------
Pt. 125,Subpt. G, App.
40 CFR Ch. I <7-1-04 Edition)
improved discharge, or altered discharge, as
defined in 40 CFR 125.58? [40 CFR 125.59]
2. (L.S) Description of the Treatment'Out-
fall System [40 CFR 125.62(a) and 125.62(e)]
a. Provide detailed descriptions and dia-
grams 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 appli-
cation is based?
b. Provide a map showing the geographic
location of proposed outfalKsi (i.e.. dis-
charge). What is the latitude and longitude
of the proposed outfallfs)?
c. For a modification based on an improved
or altered discharge, provide a description
and diagram of your current treatment- sys-
tem and outfall configuration, Include the
current outfall's latitude and longitude, if
different from the proposed outfall.
3, {L,S5 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 125.80]
b. If your effluent does not meet the pri-
mary or equivalent treatment requirements,
when do you plan to meet them? Provide a
detailed schedule, including design, con-
struction, 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 Charac-
teristics [40 CFR 125,61(b) and 125.62(e>(2>]
a. Identify the final effluent limitations
for five-day biochemical oxygen demand
(BOD?), suspended solids, and pH upon which
your application for a modification, is based:
—BOD* _ mg/L
—Suspended solids mg'L
-pH (range >
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:
Flow (m -'-sec):
—minimum
—average dry weather
—average wet weather
—maximum
—annual average
BOD 5 (mg.'L! for the following plant flows:
—minimum
—average dry weather
—average wet weather
—maximum
—annual average
Suspended solids (mg-'L) for the following
plant flows:
—minimum
—average dry weather
—average wet weather
—maximum
--annual average
Toxic pollutants and pesticides (ug"L>:
list each toxic pollutant and pesticide
—list each 304(a)(l) criteria and toxic pollut-
ant and pesticide
pH:
—minimum
—maximum
Dissolved oxygen fmgL. prior to
chlorination) for the following plant flows:
—minimum
--average dry weather
--average wet weather
—maximum
—annual average
Immediate dissolved oxygen demand (nag/
L),
5. Effluent Volume and Mass Emis-
sions [40 CFR 125.62(e)(2) and 125.67]
a. Provide detailed analyses showing' pro-
jections of effluent volume (annual average,
m 'see) and mass loadings (mt.yr) of BODs
and suspended solids for the design life of
your treatment facility in five-year incre-
ments. If the application is based upon an
improved or altered discharge, the projec-
tions must be provided with and without the
proposed improvements or alterations.
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, iL.S) Average Daily Industrial Flow (m''
seo. Provide or estimate the average daily
industrial inflow to your treatment facility
for the same time increments as in question
II.A.5 above, [40 CFR 125.66]
7, (L.S) Combined Sewer Overflows [40 CFR
12S.67(b)]
a. Does (will) your treatment and collec-
tion system include combined sewer over-
flows?
b, If yes. provide a description of your plan
for minimizing combined sewer overflows to
the receiving water.
8. (L.S) Outfall/Dii'fuser Design. Provide
the following- data for your current discharge
as well as for the modified discharge, if dif-
ferent from the current discharge: [40 CFR
125.62(a)(D]
-—Diameter and length of the outfalKs) (me-
ters )
—Diameter and length of the diffuser(s) (me-
ters)
Angle(s) of port orientatioms; from hori-
zontal (degrees)
—Port rtiameter(s) (meters)
-Orifice contraction coefficient's), if known
—Vertical distance from mean lower low
water (or mean low water; surface and out-
fall port(s) centerline (meters)
—Number of ports
—Port spacing (meters)
318
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Environmental Protection Agency
Pt. 125, Subpt. G, App,
—Design How rate for each port, if multiple
ports are used inv sec;)
B. Ktwiciny U'cUw Description
]. iL.Si Are you applying' for a modifica-
tion based on a discharge to the o.-ean [40
CFR 125.58uiil or to a saline estuary HO CFR
125.58(V)]? [40 CFR 125.59(a)j.
2. (L.S) Is your current discharge or modi-
fied discharge to stressed waters as defined
in -10 CFR 125.58(z)? If yes. what are the pollu-
tion sources contributing- to the strew? [40
CFR 125,59(bK4) and 125.62"|.
3. (L.S) Provide a description and data on
the seasonal circulation patterns in the vi-
cinity of your current and modified dis-
charged). 1.40 CFR 125.62(ai].
4. (Ls Qceanographic conditions in the vi-
cinity of the current and proposed modified
discharge!s>. Provide data on the following:
[40 CFR 125.62(a).|.
—Lowest ten percentile current speed (in
sec)
— Predominant current speed {rtrseci and di-
rection (true) during the four seasons
— Period(s) of maximum stratification
(months)
—Periodts) of natural upwelling events (du-
ration and frequency, months)
—Density profiles during periodis) of max-
imum stratification
5. (L.S) Do the receiving waters for your
discharge contain significant amounts of ef-
fluent previously discharged from the treat-
ment works for which you are applying for a
section 301(h) modified permit? [-10 CFR
125.57 t,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)J
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:
—BOD . (in^L)
—Dissolved oxygen (mg Li
—Suspended solids (nig L)
_.pH
-••Temperature ( :'C)
•- Salinity Cppt)
—Transparency (turbidity, percent light
transmittance)
•-Other significant variables (e.g.. nutrients.
304iaKli criteria and toxic pollutants and
pesticides, fecal coliform bacteria)
b. (S) Provide available data on the fol-
lowing in the vicinity of the current dis-
charge location and for the modified dis-
charge location, if different from the current
discharge: [40 CFR 125.61(b)(l)]
—Dissolved oxygen (mg"L>
—Suspended solids (mg'L)
- pH
Temperature ( C'i
Salinit.v ippt)
-Transparency (turbidity, percent light
transmit t Alice i
Other significant variables (e.g.. nutrient*.
304(a)(l) criteria and toxic pollutants and
pesticides, fecal coliform bacteria)
c. (L.S)Are there other periods when re-
ceiving 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 periodisi. [40 CFR
125.62t aid!).
7. (L) Provide data on steady state sedi-
ment dissolved oxygen demand and dissolved
oxygen demand due to resuspension of sedi-
ments in the vicinity of your current and
modified discharges) img-L day).
(*. Biiilfiffical Conditions
1. (L) Provide a detailed description of rep-
resentative biological communities (e.g..
plankton, macrobejithos, demersal fish, etc.)
in the vicinity of your current and modified
discharge!*): within the ZID. at the ZID
boundary, at other areas of potential dis-
•. harge-related impact, and at reference (con-
trol) sites. Community characteristics to be
described shall include (but not be limited
ro) species composition: abundance: domi-
nance and diversity: spatial temporal dis-
tribution: arowth and reproduction: disease
frequency: trophu structure and produc-
tivity patterns: presence of opportunistic
species: bioaccumulation of toxic materials:
and the occurrence of mass mortalities.
2. (L.S)a. Are distinctive habitats of lim-
ited distribution (such as kelp beds or coral
reefs) located in areas potentially affected
by the modified discharge? [40 CFR 125.62(c)J
b. If yes. provide information on type, ex-
tent, and location of habitats.
3. (L.S)fi. Are commercial or recreational
fisheries located in areas potentially affected
by the discharge? !40 CFR 125.62 u.-i and ]
b. If yes. provide information on types, lo-
cation, and value of fisheries.
D. State and Fedrxil IMU-K /•*'"' CFR 125.H1 and
!25.fi2(a)'l)l
I. iL.S) Are there water duality standards
applicable to the following" pollutants for
which a modification is requested:
—Biochemical oxygen demand or dissolved
oxygen?
—Suspended solids, turbidity, light trans-
mission, light scattering-, or maintenance
of the euphotic zone?
—pH of the receiving water?
2. (L.S) If yes. what is the water use classi-
fication 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
319
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Pf. 125, Subpt. G, App.
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)].
—Be consistent with applicable State coastal
zone management programs i approved
under the Coastal Zone Management Act
as amended. 16 U.S.C. 1451 et seq.'I1 ('See 16
U.S.C. M56(CK3)(A))
Be located in a marine sanctuary des-
ignated under Title III of the Marine Pro-
tection. Research, and Sanctuaries Act
(MPRSAi as amended. 16 U.S.C 1431 et
seq.. or in an eatuarine sanctuary des-
ignated under the Coastal Zone Manage-
ment Act as amended. 16 U.S.C. 1461? If lo-
cated in a marine sanctuary designated
under Title III of the MPRSA. attach a
copy of any certification or permit re-
quired under regulations g'overriiiii; such
marine sanctuary. ]See 16 U.S.C. I132if)(2i]
- Be consistent with the Endangered Species
Act as? amended. 16 U.S.C. 1531 et seq.? Pro-
vide the names of any threatened or endan-
gered .species tlmt inhabit or obtain nuiri-
euto from waters that may be aflecied liy
the modified discharge. Identify any crit-
ical habitat thar may be affected bv the
modified discharge and evaluate whether
the modified discharge will affect threat-
ened or endangered species or modify a
critical habitat. [See 16 U.S.C. 1536'ax2)].
•}. (L.S) Are you aware of any State or Fed-
eral laws or re.yulat.lons (ether than the
Clean Water Act or the three statutes identi-
fied in item 3 above) or an Executive Order
which is applicable to your Ulschara'e? If yes.
provide sufficient information t.o dem-
onstrate that your modified discharge will
comply with such lawts). regulatioms). or
ordertsi, [40 CFR 125.59 (bH3)(.
III. TEC'HXK'AI, EV.\I.r.-\T!»N
.4. Pinibical Charades 1,-iticf," til Disi-tntn/e i-il>
CFR I25.62(ii)i
1. (L.S) What is the critical initial dilution
for your current and modified discharge!si
during' (1) the period!w) of maximum strati-
fication'.' and (2i any other critical periodis;
of discharge volume composition, water
quality, biological seasons, or oeeaiioirraphic
conditions?
2. (L.S) What are the dimensions of the
zone of initial dilution for your modified dis-
charge! s)?
3. (L) What are the effects of ambient cur-
rents and stratification on dispersion and
transport of the discharge plume wastefield?
4. (S) Will there be significant sedimenta-
tion of suspended solids In the vicinity of the
modified discharge?
5. (L) Sedimentation of suspended solids
a. What fraction of the modified dis-
charge's suspended solids will accumulate
40 CFR Ch. I (7-1-04 Edition)
within the vicinity of the modified dis-
charge?
b. What are the calculated areafsi and
rateisi of sediment accumulation within the
vicinity of the modified discharge(s) iff mj
vri?
c. What is the fate of settleable solids
transported beyond the calculated sediment
act umulrttioii area?
1. (L.S) What: is the concentration of dis-
solved oxynen immediately following initial
dilution for the period What is the farfield dissolved oxy-
H'-n depression and resulting concentration
due to BOU exertion of the wastefield during
the periodisi of maximum stratification and
any other critical peiiodisi'?
3. iLi What are the dissolved oxygen de-
pressions and resulting concentrations near
the bottom due to steady sediment demand
and resuspension of sediments?
4. iL.S; What is the increase in receiving
water suspended solids concentration imme-
diately following initial dilution of the
modified dischargees!?
5. iLi What is the change in receiving
water pH immediately followmy initial dilu-
tion of the modified disoharsrels)'-'
6. iL,s>) Does (will) the modified diHcharg'e
comply with applicable water finality stand-
ards for:
-•Dissolved oxygen''
Suspended solids or surrogate standards^
• .pH'1
1- i L.S) Provide data t-o demonstrate that
all applicable State water Quality standards.
and all applicable water quality criteria es-
tablished under Section 304iaxl) 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 surrounding1 or adja-
cent to the point at which your effluent is
discharged. [40 CFR 125.62(a)(lt]
8. iL.Si Provide the determination required
by 40 CFR 125.61Cb)i2) for compliance with all
applicable provisions of State law. including
water quality standards or, if the determina-
tion has not yet been received, a copy of a
letter to the appropriate agency* s) request-
ing" the required determination.
320
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Environmental Protection Agency
Pt. 125,Subpf. G, App.
C. Impact on Public Water Supplies [4}
1. (L.S) Is there a planned or existing pub-
lic water supply (desalinization facility ) in-
take in the vicinity of the current or modi-
fied 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 intakeSs) for public water .supply?
c, Will the modified diRcharg'e(s) cause In-
creased treatment requirements for public
water supply(s) to meet local. Stats, and
EPA drinking water standards?
D. Biological Impact of Discharge [4(1 CFR
1. (L.S) Does (will i a balanced
population of shellfish, fish, and wildlife
exist :
— Immediately beyond the ZID of the current
and modified discharge! si?
—In all other areas beyond the ZID where
marine life is actually or potentially af-
fected by the current and modified dis-
charge! si?
2. (L.S) Have distinctive habitats of lim-
ited distribution been impacted adversely by
the current discharge and will such habitats
be impacted adversely by the modified dis-
charge?
3. (L.S) Have commercial or recreational
fisheries been Impacted adversely by the cur-
rent discharge (e.g.. warning's, restrictions.
closures, or mass mortalities) or will they be
impacted adversely by the modified dis-
charge?
4. (L.S*) Does the current or modified dis-
charge cause the following within or beyond
the ZID: [40 CPR. 125.62(t 5(3)]
— Mass mortality of fishes or invertebrates
due to oxygen depletion, high concentra-
tions of toxics, or other conditions?
— An increased incidence of disease in ma-
rine organisms?
..... An abnormal "body burden of any toxic ma-
terial in marine organisms?
Any other extreme, adverse biological im-
pacts?
5. (L.S) For discharges into saline estua-
rine waters: [40 CFR 125.62 tc){4)l
— Does or will the current or modified dis-
charge cause substantial differences in the
benthic population within the ZID and be-
yond the ZID?
•-Does or will the current or modified dis-
charge interfere with migratory pathways
within the ZID?
— Does or will the current or modified dis-
charge result in bioaccumulation ot toxic
pollutants or pesticides at levels which
exert adverse effects on the biota within
the ZID?
No section (hi modified permit shall be
issued where the discharge enters into
stressed saline estuarine waters as stated in
40 CFR125.59.
6. (L.S) For improved discharges, will the
proposed improved dischargees) comply with
the requirements of 40 CFR 125.62(a> through
125.62«1)7 (40 CFR 125.62(e)]
7. (L.S) For altered dischargees), will the
altered dischargeis) comply with the require-
ments of 40 CFR 125,62(ai through 125,62td)?
i40CFR12562iei)
8, (L.S) If your current discharge is to
stressed ocean waters, does or will your cur-
rent or modified discharge: [10 CFR 125.62UT,
-Contribute to. increase, or perpetuate such
stressed condition';'
-Contribute to further degradation of the
biota or water quality if the level of
human perturbation from other sources in-
creases?
— Retard the recovery of the biota or water
Quality if human perturbation from other
sources decreases?
K, Impact.-, u! Discharge on Recreational
Activiltea 140 CFR lZ>.62(d)l
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 rec-
reational activities? Your answer should in-
clude, 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^!?
If yes, describe the restrictions and provide
citations to available references.
4. (L.S i If recreational restrictions exist.
would such restrictions be lifted or modified
if you were discharging1 a secondary treat-
ment effluent?
f. KxtahtixltmcHl «:>/ a Monitoring Program [40
CFR J25.6.y
1. (L.Si Describe the biological, water qual-
ity, 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 SOlchi monitoring' program [40
CFR125.63(ai(l)(i)(B)].
2. (L.S) Describe the sampling1 techniques,
schedules, and locations, analytical tech-
niques, quality control and verification pro-
cedures to be used.
3. (L.S) Describe the personnel and finan-
cial resources available to implement the
monitoring programs upon issuance of a
modified permit and to carry it out for the
life of the modified permit.
321
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§125.70
40 CFR Ch, 1 (7-1-04 Edition)
G. Effect of Discharge on Other Point and
Nonpoint Sources [40 CFR 125.64]
1. (L,Si Does (will) your modified dis-
charges) cause additional treatment or con-
trol requirements for any other point or
nonpoint. pollution sotirce(s)?
2. (L.S) Provide the determination required
by 40 CFR 125.64(li) or. if the determination
has not yet been received, a copy of a letter
to the appropriate agencyts) requesting' the
required determination.
H. Toxics Contra! Program and i'rban Area
Pretre.atme.nt Program [40 Cfr'R 125.65 and
125.66]
1. a. (L.S) Do you have any known or sus-
pected industrial sources of toxic pollutants
or pesticides?
b. (L.S) If no. provide the certification re-
quired by -JO CFR, 125.66(a>(2> for small dis-
chargers, and required by 40 CFR 125.66(0(2)
for larg'e dischargers.
c. (L.S*) Provide the results of wet and dry
weather effluent analyses for toxic pollut-
ants and pesticides as required by 40 CFR
Ii5.66(anl). (* to the extent practicable)
d. (L.S*) Provide an analysis of known or
suspected industrial sources of toxic pollut-
ants and pesticides identified in due) above
as required by 40 CFR 125,66(b). (* to the ex-
tent practicable)
2. (S)a. Are there any known or suspected
water quality, sediment accumulation, or bi-
ological problems related to toxic pollutants
or pesticides from your modified dis-
charge! si?
(S)b. If no, provide the certification re-
quired by 40 CFR 125.66(d)(2> together with
available supporting- data.
lS)c. If yes. provide a schedule for develop-
ment and implementation of noiiindustria.1
toxics control programs to meet the require-
ments of 40 CFR 126.66id)(3).
(Lkl. Provide a schedule for development
and implementation of a noniiidustria,!
toxics control program to meet the require-
ments of 40 CFR 125.66(dK3).
3. (L.S) Describe the public education pro-
gram you propose to minimize the entrance
of nonindustrial toxic pollutants and pes-
ticides into your treatment, system. [40 CFR
125.66fd)(D]
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 -103
to have an industrial pretreatment prog-ram,
provide a proposed schedule for development
and implementation of your industrial
pretreatment program to meet- the require-
ments of 40 CFR part 403.
5. Urban area pretreatment requirement
[40 CFR 125.65] Dischargers serving a popu-
lation of 50.000 or more must respond.
a. Provide data on all toxic pollutants in-
troduced into the treatment works from in-
dustrial sources (categorical and noncategor-
icah,
b- Note whether applicable pretreatment
requirements are in effect for each toxic pol-
lutant. Are the industrial sources intro-
ducing' 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.
—provide a description and a schedule for
your development and implementation of
applicable pretreatment requirements [40
CPR 125.65(0!]. or
—describe how you propose to demonstrate
secondary removal equivalency for each of
those toxic pollutants, including a sched-
ule for compliance, by using a secondary
treatment pilot plant. [40 CFR 125.65(d)]
Subpqrt H—Criteria for Deter-
mining Alternative Effluent
Limitations Under Section
316(a)of the Act
$ 125.70 Purpose and scope,
Section 316(a) of the Act provides
that:
"With respect to any point source other-
wise 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 dem-
onstrate to the satisfaction of the Adminis-
trator (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 limita-
tions more stringent than necessary to as-
sure the projection [sic] and propagation of a
balanced, indigenous population of shellfish.
fish and wildlife in and on the hotly 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 propaga-
tion of a balanced indigenous population of
shellfish, fish and wildlife in and on that
body of water."
This subpart describes the factors, cri-
teria and standards for the establish-
ment, of alternative thermal effluent
limitations under section 316(a) of the
Act. in permits issued under section
402ia5 of the Act.
322
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Environmental Protection Agency
§125.72
§ 125,71 Definitions,
For the purpose of this subpart:
(a) Alternative effluent limitations
means all effluent limitations or stand-
ards of performance for the control of
the thermal component of any dis-
charge which are established under sec-
tion 316(a) and this subpart.
(b) Representative important species
means species which are representa-
tive, in terms of their biological needs,
of a balanced, indigenous community
of shellfish, fish and wildlife in the
body of water into which a discharge of
heat is made,
(c) The term balanced, indigenous com-
munity is synonymous with the term
balanced, indigenous population in the
Act and means a biotic community
typically characterized by diversity,
the capacity to sustain itself through
cyclic seasonal changes, presence of
necessary food chain species and by a
lack of domination by pollution toler-
ant species. Such a community may in-
clude historically non-native species
introduced in connection with a pro-
gram of wildlife management and spe-
cies whose presence or abundance re-
sults from substantial, irreversible en-
vironmental modifications. Normally,
however, such a community will not
include species whose presence or abun-
dance is attributable to the introduc-
tion of pollutants that will be elimi-
nated by compliance by all sources
with section 301(b>(2) of the Act; and
may not include species whose presence
or abundance is attributable to alter-
native effluent limitations imposed
pursuant to section 316(a).
§ 125,72 Early screening of applica-
tions for section 316(a) variances.
(a) Any initial application for a sec-
tion 316{a) variance shall include the
following early screening information:
(It A description of the alternative
effluent limitation requested;
(2> A general description of the meth-
od by which the discharger proposes to
demonstrate that the otherwise appli-
cable thermal discharge effluent limi-
tations are more stringent than nec-
essary:
(3» A general description of the type
of data, studies, experiments and other
information which the discharger in-
tends to submit for the demonstration;
and
(4) Such data and information as may
be available to assist the Director in
selecting the appropriate representa-
tive important species.
(b) After submitting the early screen-
ing information under paragraph (a) of
this section, the discharger shall con-
sult 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 ap-
proval a detailed plan of study which
the discharger will undertake to sup-
port its section 316(.a) demonstration.
The discharger shall specify the nature
and extent of the following type of in-
formation to be included in the plan of
study: Biological, hydrographical and
meteorological data; physical moni-
toring data; engineering or diffusion
models; laboratory studies: representa-
tive important- species: and other rel-
evant information. In selecting rep-
resentative important species, special
consideration shall be given to species
mentioned in applicable water quality
standards, After the discharger sub-
mits its detailed plan of study, the Di-
rector 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 deter-
mines necessary to support the dem-
onstration, including such studies or
inspections as may be necessary to se-
lect representative important, species,
The discharger may provide any addi-
tional information or studies which the
discharger feels are appropriate to sup-
port the demonstration.
(c) Any application for the renewal of
a section 316(a> variance shall include
only such information described in
paragraphs and (b) of this section as
the Director requests within 60 days
after receipt of the permit application.
(d) The Director shall promptly .no-
tify the Secretary of Commerce and
the Secretary of the Interior, and any
affected State of the filing of the re-
quest and shall consider any timely
recommendations they submit.
323
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§125.73
40 CFR Ch. I (7-1-04 Edition)
(e) In making the demonstration the
discharger shall consider any informa-
tion or guidance published by EPA to
assist in making such demonstrations.
(f) If an applicant desires a ruling on
a section 316 variance
should be prepared to support the continu-
ation of the variance with studies based on
the discharger's actual operation experience.
[44 FR 32948, June 7. 1979. as amended at 45
FR 33513. May 19. 1980; 65 FR 30913. May 15.
2000]
§ 125.73 Criteria and standards for the
determination of alternative efflu-
ent limitations under section 316(a).
ia) Thermal discharge effluent limi-
tations or standards established in per-
mits may be less stringent than those
required by applicable standards and
limitations if the discharger dem-
onstrates to the satisfaction of the di-
rector 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 dis-
charge is made. This demonstration
must show that the alternative efflu-
ent limitation desired by the dis-
charger, considering the cumulative
impact of its thermal discharge to-
gether with all other significant im-
pacts on the species affected, will as-
sure 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 af-
fected species will be assured, the Di-
rector may consider any information
contained or referenced in any applica-
ble 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.
Existing dischargers may base
their demonstration upon the absence
of prior appreciable harm in lieu of pre-
dictive studies. Any such demonstra-
tions shall show:
!i) That no appreciable harm has re-
sulted 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 alter-
native effluent limitations (or appro-
priate modifications thereof) will nev-
ertheless assure the protection and
propagation of a balanced, indigenous
community of shellfish, fish and wild-
life 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 dis-
charge.
Subpart I—Requirements Applica-
ble to Cooling Water Intake
Structures for New Facilities
Under Section 316(b) of the
Act
SOURCE; 66 FR 65338. Dec. 18. 2001. unless
otherwise noted.
§ 125.80 What are the purpose and
scope of this subpart?
(a) This subpart establishes require-
ments that apply to the location, de-
sign, construction, and capacity of
cooling water intake structures at new
facilities. The purpose of these require-
ments is to establish the best tech-
nology available for minimizing ad-
verse environmental impact associated
with the use of cooling water intake
structures. These requirements are im-
plemented through National Pollutant
Discharge Elimination System
(NPDES) permits issued under section
402 of the Clean Water Act (CWA).
(b) This subpart implements section
316(b) of the CWA for new facilities.
324
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Environmental Protection Agency
§125.83
Section 316(b) of the CWA provides that
any standard established pursuant to
sections 301 or 306 of the CWA and ap-
plicable 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' envi-
ronmental impact.
CO New facilities that do not meet
the threshold requirements regarding
amount of water withdrawn or percent-
age of water withdrawn for cooling
water purposes in §125.81(a) must meet
requirements determined on a ease-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 en-
force any requirement with respect to
control or abatement of pollution that
is more stringent than those required
by Federal law.
§ 125.81 Who is subject to this subpart?
(a> This subpart applies to a new fa-
cility if it:
(1) Is a point source that uses or pro-
poses to use a cooling water intake
structure;
(2) Has at least one cooling water in-
take structure that uses at least 25 per-
cent of the water it withdraws for cool-
ing 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 ar-
rangement with an independent sup-
plier (or multiple suppliers) of cooling
water if the supplier or suppliers with-
draw(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 other-
wise would be discharged to a water of
the U.S. This provision is intended to
prevent circumvention of these re-
quirements by creating arrangements
to receive cooling water from an entity
that is not itself a point source.
(ct 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 av-
erage over a year for the percentage of
cooling water withdrawn is expected to
equal or exceed 25 percent of the total
water withdrawn.
id) This subpart does not apply to fa-
cilities that employ cooling water in-
take structures in the offshore and
coastal subcategories of the oil and gas
extraction point source category as de-
fined under 40 CPR 435.10 and 40 CFR
435.40,
S 125.82 When must I comply with this
subpart?
You must comply with this subpart
when an NPDES permit containing re-
quirements consistent with this sub-
part is issued to you.
§ 125.83 What special definitions apply
to this subpart?
The following special definitions
apply to this subpart:
Annual mean .flow; means the average
of daily flows over a calendar year. His-
torical data (up to 10 years) must be
used where available.
Closed-cycle recirculating system means
a system designed, using- minimized
makeup and blowdown flows, to with-
draw water from a natural or other
water source to support contact and/or
noneontact cooling uses within a facil-
ity. The water is usually sent to a cool-
ing canal or channel, lake, pond, or
tower to allow waste heat to be dis-
sipated to the atmosphere and then is
returned to the system. (Some facili-
ties divert the waste heat to other
process operations.) New source water
(make-up water) is added to the system
to replenish losses that have occurred
due to blowdown, drift, and evapo-
ration.
Cooling wafer means water used for
contact or noneontact cooling, includ-
ing water used for equipment cooling',
evaporative cooling tower makeup, and
dilution of effluent heat content. The
intended use of the cooling water is to
absorb waste heat rejected from the
325
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§125.83
40 CFR Ch. 1 (7-1-04 Edition)
process or processes used, or from aux-
iliary operations on the facility's
premises. Cooling water that is used in
a manufacturing process either before
or after it is used for cooling' is consid-
ered process water for the purposes of
calculating: the percentage of a new fa-
cility's intake flow that is used for
cooling purposes in §125.81(c).
Cooling water intake structure means
the total physical structure and any
associated constructed waterways used
to withdraw cooling water from waters
of the U.S. The cooling' water intake
structure extends from the point at
which water is withdrawn from the sur-
face water source up to, and including,
the intake pumps.
Design intake flow means the value
assigned (during the facility's design)
to the total volume of water withdrawn
from a source water body over a spe-
cific time period.
Design intake velocity means the value
assigned (during the design of a cooling
water intake structure) to the average
speed at which intake water passes
through the open area of the intake
screen (or other device) against which
organisms might be impinged or
through which they might be en-
trained.
Entrainment means the incorporation
of all life stages of fish and shellfish
with intake water flow entering and
passing through a cooling water intake
structure and into a cooling water sys-
tem.
Estuary means a semi-enclosed body
of water that has a free connection
with open seas and within which the
seawater is measurably diluted with
fresh water derived from land drainage.
The salinity of an estuary exceeds 0.5
parts per thousand (by mass) but is
typically less than 30 parts per thou-
sand (by mass).
Existing facility means any facility
that Is not a new facility.
Freshwater river or stream means a
lotic (free-flowing) system that does
not receive significant inflows of water
from oceans or bays due to tidal ac-
tion. For the purposes of this rule, a
flow-through reservoir with a retention
time of 7 days or less will be considered
a freshwater river or stream.
Hydraulic zone of influence means that
portion of the source waterbody hy-
draulically affected by the cooling'
water intake structure withdrawal of
water.
Impingement means the entrapment of
all life stages of fish and shellfish on
the outer part of an intake structure or
against a screening device during peri-
ods of intake water withdrawal.
Lake or reservoir means any inland
body of open water with some min-
imum surface area free of rooted vege-
tation and with an average hydraulic
retention time of more than 7 days.
Lakes or reservoirs might be natural
water bodies or impounded streams,
usually fresh, surrounded by land or by
land and a man-made retainer (e.g., a
dam). Lakes or reservoirs might be fed
by rivers, streams, springs, and/or local
precipitation. Flow-through reservoirs
with an average hydraulic retention
time of 7 days or less should be consid-
ered a freshwater river or stream.
Maximize means to increase to the
greatest amount, extent, or degree rea-
sonably possible,
Minimize means to reduce to the
smallest amount, extent, or degree rea-
sonably possible.
Natural thermal stratification means
the naturally-occurring division of a
waterbody into horizontal layers of dif-
fering densities as a result of vari-
ations in temperature at different
depths.
New facility means any building,
structure, facility, or installation that
meets the definition of a "new source"
or "new discharger" in 40 CFR 122.2 and
122.29(b)!l), (2), and (4) and is a green-
field or stand-alone facility; com-
mences construction after January 17.
2002: and uses either a newly con-
structed cooling water intake struc-
ture, or an existing cooling water in-
take structure whose design capacity is
increased to accommodate the intake
of additional cooling water. New facili-
ties include only "greenfield" and
"stand-alone" facilities, A greenfield fa-
cility is a facility that is constructed
at a site at which no other source is lo-
cated, or that totally replaces the proc-
ess or production equipment at an ex-
isting facility (see 40 CFR 122.29(b)(l)(i)
and (ii)). A stand-alone facility is a
new, separate facility that is con-
structed on property where an existing
facility is located and whose processes
326
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Environmental Protection Agency
§125.84
are substantially independent of the
existing facility at the same site (see 40
CPR 122.29(bXl)(iii)). New facility does
not include new units that are added to
a facility for purposes of the same gen-
eral industrial operation (for example,
a new peaking unit at an electrical
generating station).
(1) Examples of "new facilities" in-
clude, but are not limited to: the fol-
lowing scenarios:
(i) A new facility is constructed on a
site that has never been used for indus-
trial or commercial activity. It has a
new cooling water intake structure for
its own use.
(ii) A facility is demolished and an-
other 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 ac-
commodate 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 in-
dustrial 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 capac-
ity for the new facility.
(2) Examples of facilities that would
not be considered a "new facility" in-
clude, but are not limited to, the fol-
lowing scenarios:
(it A facility in commercial or indus-
trial operation is modified and either
continues to use its original cooling
water intake structure or uses a new or
modified cooling water intake struc-
ture.
(ii) A facility has an existing intake
structure. Another facility
-------
§125.84
40 CFR Ch, I (7-1-04 Edition)
from all cooling water intake struc-
tures at your facility meets the fol-
lowing requirements:
(i) For cooling water intake struc-
tures 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;
(iil For cooling water intake struc-
tures located in a lake or reservoir, the
total design intake flow must not dis-
rupt the natural thermal stratification
or turnover pattern (where present) of
the source water except in cases where
the disruption is determined to be ben-
eficial to the management of fisheries
for fish and shellfish by any fishery
management agency(ies):
(iii) For cooling water intake struc-
tures 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 mini-
mizing impingement mortality of fish
and shellfish if:
(i) There are threatened or endan-
gered or otherwise protected federal.
state, or tribal species, or critical habi-
tat for these species, within the hy-
draulic zone of influence of the cooling
water intake structure; or
(ii'J Based on information submitted
by any fishery management agency(ies)
or other relevant information, there
are migratory and/or sport or commer-
cial species of impingement concern to
the Director that pass through the hy-
draulic 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 require-
ments in paragraphs (b)(l), (2), and (3)
of this section, would still contribute
unacceptable stress to the protected
species, critical habitat of those spe-
cies, or species of concern;
(5) You must select and implement
design and construction technologies
or operational measures for mini-
mizing entrainment of entrainable life
stages of fish and shellfish if:
(i) There are threatened or endan-
gered or otherwise protected federal,
state, or tribal species, or critical habi-
tat for these species, within the hy-
draulic zone of influence of the cooling
water intake structure; or
of this section, would still con-
tribute unacceptable stress to the pro-
tected species . critical habitat of
those species, or these species of con-
cern:
(6) You must submit the application
information required in 40 CFB 122.21(r)
and §125.86(b);
(7) You must implement the moni-
toring requirements specified in
§125.87:
(8; You must implement the record-
keeping requirements specified in
§125.88.
(c) Track I requirements for new facili-
ties that withdraw equal to or greater
than 2 MOD and less than 10 MOD and
that choose not to comply with paragraph
(b) of this section. You must comply
with all the following requirements:
(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 struc-
tures at your facility meets the fol-
lowing requirements:
(i) For cooling water intake struc-
tures 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 struc-
tures located in a lake or reservoir, the
328
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Environmental Protection Agency
§125,84
total design intake flow must not dis-
rupt the natural thermal stratification
or turnover pattern (where presents of
the source water except in cases where
the disruption is determined to be ben-
eficial to the management of fisheries
for fish and shellfish by any fishery
management agency(ies);
(iiij For cooling water intake struc-
tures 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 t.he
area centered about the opening of the
intal.e 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 mini-
mixing impingement, mortality of fish
and shellfish if:
(i) There are threatened or endan-
gered or otherwise protected federal.
state, or tribal species, or critical habi-
tat for these species, within the hy-
draulic zone of influence of the cooling
water intake structure: or
or other relevant information, there
are migratory and or sport or commer-
cial species of impingement concern to
the Director that pass through the hy-
draulic 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 meeting1 the
technology-based performance require-
ments in paragraphs (c)(l) and (2) of
this section, would still contribute un-
acceptable stress to the protected spe-
cies, critical habitat of those species.
or species of concern:
(41 You must select and implement
design and construction technologies
or operational measures for mini-
mizing entrainment of entrainable life
stages of fish and shellfish;
(5) You must submit the application
information required in 40 CPE 122.21(r)
and §125,86(b)(2), (3), and (4);
(6) You must implement the moni-
toring requirements specified in
§125.87:
(7) You must implement the record-
keeping requirements specified in
§125.88.
ids Trucli 11. The owner or operator oi
a new facility that chooses to comply
under Track II must comply with the
following requirements:
(1) You must demonstrate to the Di-
rector that the technologies employed
will reduce thr level of adverse envi-
ronmental impact from your cooling
water intake structures to a com-
parable level to that which you would
achieve wt/re you to implement the re-
quirements of paragraphs (b)(li and <2*
of this section. This demonstration
must include a showing that the im-
pacts to fish and shellfish, including
important forage and predator species.
within the watershed will be com-
parable to those which would result if
you were to implement the require-
ments of paragraphs and (2) of
this section. This showing may include
consideration of impacts other than
impingement mortality and entrain-
ment, including measures that will re-
sult in increases in fish and shellfish.
but it must demonstrate comparable
performance for species that the Direc-
tor 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 struc-
tures at your facility meet the fol-
lowing requirements:
(i) For cooling water intake struc-
tures 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 struc-
tures located in a lake or reservoir, the
total design intake flow must not dis-
rupt the natural thermal stratification
or turnover pattern {where present) of
the source water except in cases where
the disruption is determined to be ben-
eficial to the management of fisheries
for fish and shellfish by any fishery
management agency(ies);
(iii) For cooling water intake struc-
tures located in an estuary or tidal
329
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§125.85
40 CFR Ch. I (7-1-04 Edition)
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 122.2Kr)
and §125.86(c).
(4) You must implement the moni-
toring 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 ca-
pacity of a cooling water intake struc-
ture or monitoring requirements at a
new facility that the Director deems
are reasonably necessary to comply
with any provision of state law. includ-
ing compliance with applicable state
water quality standards (including des-
ignated uses, criteria. and
antidegradation requirements).
|66 FR 65338. Dec. 18. 2001. as amended at 68
PR 36754. June 19. 20031
§ 125.85 May alternative requirements
be authorized?
(a) Any interested person may re-
quest that alternative requirements
less stringent than those specified in
§125.84(a) through (e) be imposed in the
permit. The Director may establish al-
ternative requirements less stringent
than the requirements of §125.84(a)
through (e) only if:
(1) There is an applicable require-
ment 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 re-
quirement at issue or would result in
significant adverse impacts on local air
quality, significant adverse impacts on
local water resources other than im-
pingement or entrainment, or signifi-
cant adverse impacts on local energy
markets;
(3) The alternative requirement re-
quested is no less stringent than justi-
fied 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 applica-
ble provisions of the Clean Water Act
and any applicable requirement of
state law.
The burden is on the person re-
questing the alternative requirement
to demonstrate that alternative re-
quirements should be authorized.
[66 VR 65338, Dec. 18. 2001. as amended at 68
FR 36755. June 19. 2003]
§ 125.86 As an owner or operator of a
new facility, what must I collect
and submit when I apply for my
new or reissued NPDES permit?
(aMl) 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):
The requirements for Track II in
§125.84 (d),
(2) You must also submit the applica-
tion information required by 40 CPR
122.21(r) and the information required
in either paragraph (b) of this section
for Track I or paragraph (c) of this sec-
tion for Track II when you apply for a
new or reissued NPDES permit in ac-
cordance with 40 CFR 122.21.
(b) Track I application requirements,
To demonstrate compliance with Track
I requirements in §125.84(b) or (c). you
must collect and submit to the Direc-
tor the information in paragraphs (b)(l)
through (4) of this section.
d) Flow reduction information. If you
must comply with the flow reduction
requirements in §125.84(bMl). you must
submit the following information to
the Director to demonstrate that you
have reduced your flow to a level com-
mensurate with that which can be at-
tained by a closed-cycle recirculating
cooling water system:
330
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Environmental Protection Agency
§125.86
(it A narrative description of your
system that has been designed to re-
duce your intake flow to a level com-
mensurate with that which can be at-
tained by a closed-cycle recirculating
cooling water system and any engi-
neering* calculations, including docu-
mentation 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 cool-
ing purposes in subsequent industrial
processes, you must provide docu-
mentation that the amount of cooling
water that is not reused or recycled
has been minimized.
(2) Velocity information. You must
submit the following information to
the Director to demonstrate that you
are complying with the requirement to
meet a maximum through-screen de-
sign intake velocity of no more than
0.5 ft s at each cooling water intake
structure as required in §125.8'lil»t2)
and (ci(D:
!i) A narrative description of the de-
sign, structure, equipment, and oper-
ation used to meet the velocity re-
quirement: and
(ill Design calculations showing that
the velocity requirement will be met at
minimum ambient source water sur-
face elevations (based oil best profes-
sional judgement- using available
hydrologieal data) and maximum head
loss across the screens or other device.
(3) Source waterborli/ tlirw information.
You must submit to the Director the
following information to demonstrate
that your cooling water intake struc-
ture meets the flow requirements in
§125.84(b)(3) and tc)(2>:
(i) If your cooling water intake struc-
ture is located in a freshwater river or
stream, you must provide the animal
mean flow and any supporting docu-
mentation and engineering calcula-
tions to show that your cooling water
intake structure meets the flow re-
quirements;
(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 en-
gineering calculations to show that
your cooling water intake structure fa-
cility meets the flow requirements; and
(iii) If your cooling water intake
structure is located in a lake or res-
ervoir, you must provide a narrative
description of the water body thermal
stratification, and any supporting doc-
umentation and engineering calcula-
tions to show that the natural thermal
stratification and turnover pattern will
not be disrupted by the total design in-
take flow. In cases where the disrup-
tion is determined to be beneficial to
the management of fisheries for fish
and shellfish you must provide sup-
porting documentation and include a
written concurrence from any fisheries
management, agencyues) with responsi-
bility for fisheries potentially affected
by your cooling water intake struc-
ture! si.
(4) Design and Construction Technology
I'laii. To comply with §125.84ibM4> and
<5i. or (c)(3i and ic>(4). you must submit.
to the Director the following informa-
tion in a Design and Construction
Technology Flan;
(i) Information to demonstrate
whether or not von meet the criteria in
H25.84sb)f4« and <5>. or <3* and
(•.-)(4):
di> Delineation of the hydraulic zone
of influence for your cooling water in-
take structure;
(iii! New facilities required to install
design and construction technologies
and or operational measures must de-
velop a plan explaining i,he tech-
nologies and measures you have se-
lected based on information collected
for the Source Water Biological Base-
line Characterization required by 40
CFR 122.21irH3i. (Examples of appro-
priate 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 ap-
propriate operational measures in-
clude, but- are not. limited to. seasonal
shutdowns or reductions in flow, con-
tinuous operations of screens, etc.) The
plan must contain the following infor-
mation:
(A) A narrative description of the de-
sign and operation of the design and
construction technologies, including
fish-handling and return systems, that
vou will use to maximize the survival
331
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§125.86
40 CFR Ch. I (7-1-04 Edition)
of those species expected to be most
susceptible to impingement. Provide
species-specific information that dem-
onstrates the efficacy of the tech-
nology;
(B) A narrative description of the de-
sign and operation of the design and
construction technologies that you will
use to minimize entrainment of those
species expected to be the most suscep-
tible to entrainment. Provide species-
specific information that demonstrates
the efficacy of the technology: and
(C) Design calculations, drawings.
and estimates to support the descrip-
tions provided in paragraphs
Cb)(4)(iii)(A) and (B) of this section.
(c) Application requirements for Track
II. If you have chosen to comply with
the requirements of Track II in
§125.84(d) you must collect and submit
the following information:
(1) Source waterbody flow information,
You must submit to the Director the
following information to demonstrate
that your cooling- water intake struc-
ture meets the source water body re-
quirements in § 125.841 d)(2V.
(i) If your cooling water intake struc-
ture is located in a freshwater river or
stream, you must provide the annual
mean flow and any supporting docu-
mentation and engineering calcula-
tions to show that your cooling water
intake structure meets the flow re-
quirements;
fii) 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 en-
gineering calculations to show that
your cooling water intake structure fa-
cility meets the flow requirements; and
(iii) If your cooling water intake
structure is located in a lake or res-
ervoir, you must provide a narrative
description of the water body thermal
stratification, and any supporting doc-
umentation and engineering calcula-
tions 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 ben-
eficial to the management of fisheries
for fish and shellfish you must provide
supporting documentation and include
a written concurrence from any fish-
eries management agency*ies) with re-
sponsibility for fisheries potentially af-
fected by your cooling water intake
structure(s).
(2) Track II Comprehensive Demonstra-
tion Study. You must perform and sub-
mit the results of a Comprehensive
Demonstration Study (Study). This in-
formation is required to characterize
the source water baseline in the vicin-
ity of the cooling water intake struc-
ture(s). characterize operation of the
cooling water intake(s). and to confirm
that the technology (ies) proposed and/
or implemented at your cooling water
intake structure reduce the impacts to
fish and shellfish to levels comparable
to those you would achieve were you to
implement the requirements in
§125.84(b)(l)and (2) of Track I. To meet
the "comparable level" requirement.
you must demonstrate that:
(it You have reduced both impinge-
ment 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)(l) and (2); or
(ii) If your demonstration includes
consideration of impacts other than
impingement mortality and entrain-
ment. 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)
-------
Environmental Protection Agency
§125.86
the data were collected using appro-
priate quality assurance/quality con-
trol procedures:
(C) Any public participation or con-
sultation with Federal or State agen-
cies undertaken in developing the plan;
and
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 proce-
dures for sampling, and data analysis.
The sampling and data analysis meth-
ods 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 isu hide
A description of the study area chh-ittd-
ing the area of influence of the cooling
water intake structure arid at tea,--! 100
meters beyond!: taxonornie identifica-
tion of the sampled or evaluated bio-
logical assemblages (including all life
.stages of fish and shellfish:; and sam-
pling and data analysis methods; and
tiv> You must, submit document,it ion
of the results of the Study to tli.- Di-
rector. Documentation of the results ot
the Study must include:
(A* Source Water Biological Stud//. The
Source Water Biological Study must
include:
(i) A taxonomic identification and
characterization of aquatic biological
resources including: a summary of his-
torical and contemporary aquatic bio-
logical resources; determination and
description of the target populations of
concern (those species offish and .-.hell-
fish and all life stages that are most
susceptible to impingement and en-
trainrnent): and a description ot the
abundance and temporal spatial char-
acterization of the target populations
based on the collection of multiple
years of data to capture the seasonal
and daily activities (e.g.. spawning-.
feeding" and water column mitral ion)
of all life stages of fish and shellfish
found in the vicinity of the cooling-
water intake structure:
(2) An identification of all threatened
or endangered species that might be
susceptible to impingement and en-
trainment by the proposed cooling
water intake structure(s): and
(3) A description of additional chem-
ical, water quality, and other anthro-
pogenic stresses on the source
waterbody.
(B) Evaluation of potential cooling
icater intake structure effects. This eval-
uation will include.:
(Z> Calculations of the reduction in
impingement mortality and entrain-
ment of all life stages of fish and shell-
fish that would need to be achieved by
the technologies you have selected to
implement to meet requirements under
Track II, To do this, you must deter-
mine the reduction in impingement
mortality and erurainmt'nt that would
• fj achieve..! l.v implementing- the re-
quirements of § T2f> SKhhLi and i~2) of
Track I at yout site.
!.:') An engineering estimate r>f effi-
. .icy for 'ho proposed and or imple-
mented tcchno'iogioii used to minimize
impingement mortality ami entrain-
mem of all iiiV- stages offish and shel!-
fish and maxim;/.!-; survival of impinged
iife stages of fish and shellfish. You
must demonstrate that the tech-
nologies reduce impingement mor-
:ai;ty ai;u eiilraimneiH of all life
.-Cages of fish and shellfish to a com-
parable le\'-'l to that which you would
achieve were you to implement the re-
quirements in § 125.B4(bnl i and <2> of
Track I. The efficacy projection must
include a site-specific evaluation of
technology) iest suitability for reducing
iinping-etn.'iit mortality and en train -
ment. based on tli»j results of the Source
Vv'ater Biological Study in paragraph
•:'..•»( 2 >iiv>i A i of this section. Efficacy e*-
' imates may be determined based on
case studies that have been conducted
in the vicinity of the cooling water in-
take structure and or site-specific
technology prototype studies.
(C» Evaluation <.
you must piovide the following infor-
mation to the Director:
(7> Information and data to show that
you have coordinated with the appro-
priate fishery management agency! ies>;
and
(2) A plan that provides a list of the
measures you plan to implement and
how you will demonstrate and continue
333
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§125.87
40 CFR Ch. I (7-1-04 Edition)
to ensure that your restoration meas-
ures will maintain the fish and shell-
fish in the water-body to a substan-
tially similar level to that which would
be achieved through §125.84(bKl) and
(2).
(D) Verification monitoring plan. You
must include in the Study the fol-
lowing:
(?) A plan to conduct, at a minimum.
two years of monitoring to verify the
full-scale performance of the proposed
or implemented technologies, oper-
ational measures. The verification
study must begin at the start of oper-
ations of the cooling water intake
structure and continue for a sufficient
period of time to demonstrate that the
facility is reducing the level of im-
pingement and entrainment to the
level documented in paragraph
(O(2)(ivKB) of this section. The plan
must describe the frequency of moni-
toring and the parameters to be mon-
itored. The Director will use the
verification monitoring to confirm
that you are meeting the level of im-
pingement mortality and entrainment
reduction required in |125.84(d), and
that the operation of the technology
has been optimized.
(2) A plan to conduct monitoring to
verify that the restoration measures
will maintain the fish and shellfish in
the waterbody to a substantially simi-
lar level as that which would be
achieved through §125.84Cb)(l) and (2).
1125.87 As an owner or operator of a
new facility, must I perform moni-
toring?
As an owner or operator of a new fa-
cility, you will be required to perform
monitoring to demonstrate your com-
pliance with the requirements specified
in §125.84.
(a) Biological monitoring. You must
monitor both impingement and en-
trainment of the commercial, rec-
reational, and forage "base fish and
shellfish species identified in either the
Source Water Baseline Biological Char-
acterization data required toy 40 CFR
122.21(r)(3) or the Comprehensive Dem-
onstration Study required by
§125.86(c)(2), depending on whether you
chose to comply with Track I or Track
II. The monitoring methods used must
be consistent with those used for the
Source Water Baseline Biological Char-
acterization data required in 40 CFR
122.21(ri<3) or the Comprehensive Dem-
onstration Study required by
§125.86(0(2). You must follow the moni-
toring 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 and daily variations in
the species and numbers of individuals
that are impinged or entrained.
(1) Impingement sampling. You must
collect samples to monitor impinge-
ment rates (simple enumeration) for
each species over a 24-hour period and
no less than once per month when the
cooling water intake structure is in op-
eration.
(21 Entrainment sampling. You must
collect samples to monitor entrain-
ment rates (simple enumeration) for
each species over a 24-hour period and
no less than biweekly during the pri-
mary period of reproduction, larval re-
cruitment, and peak abundance identi-
fied during the Source Water Baseline
Biological Characterization required
by 40 CPR 122.2KrK3) or the Com-
prehensive Demonstration Study re-
quired in §125.86(0(2). You must collect
samples only when the cooling water
intake structure is In operation.
(b) Velocity monitoring. If your facility
uses surface intake screen systems.
you must monitor head loss across the
screens and correlate the measured
value with the design intake velocity.
The head loss across the intake screen
must be measured at the minimum am-
bient source water surface elevation
(best professional judgment hased on
available hydrological data). The max-
imum head loss across the screen for
each cooling water intake structure
must be used to determine compliance
with the velocity requirement in
§125.84(b)(2) or (c)(l). If your facility
uses devices other than surface intake
screens, you must monitor velocity at
the point of entry through the device.
You must monitor head loss or velocity
during initial facility startup, and
thereafter, at the frequency specified
334
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Environmental Protection Agency
§125.89
in your NPDES permit, but no less
than once per quarter,
(o Visual or remote inspections, You
must either conduct visual inspections
or employ remote monitoring devices
during the period the cooling water in-
take structure is in operation. You
must conduct visual inspections at
least weekly to ensure that any design
and construction technologies required
in §125,84(b)(4) and (5), or (O<3) and (4)
are maintained and operated to ensure
that they will continue to function as
designed. Alternatively, you muse in-
spect via remote monitoring1 devices to
ensure that the impingement and en-
trainment technologies are functioning
as designed.
§ 125,88 As an owner or operator of a
new facility, must I keep records
and report?
As an owner or operator of a new fa-
cility 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 appli-
cation and show compliance with the
requirements, any supplemental infor-
mation developed under §125.86. and
any compliance monitoring data sub-
mitted under §125.87. for a period of at
least three (3) years from the date of
permit issuance. The Director may re-
quire 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 in-
spections as required in §125.87(0.
§125,89 As the Director, what must I
do to comply with the requirements
of this subpart?
(a) Permit application. As the Direc-
tor, you must review materials sub-
mitted by the applicant under 40 CFR
122.21(r)(3) and §125.86 at the time of
the initial permit application and be-
fore each permit renewal or reissuance.
(1) After receiving the initial permit
application from the owner or operator
of a new facility, the Director must de-
termine applicable standards in §125.84
to apply to the new facility. In addi-
tion, the Director must review mate-
rials to determine compliance with the
applicable standards.
(2) For each subsequent permit re-
newal, the Director must review the
application materials and monitoring
data to determine whether require-
ments, or additional requirements, for
design and construction technologies
or operational measures should be in-
cluded in the permit.
(3) For Track II facilities, the Direc-
tor may review the information collec-
tion proposal plan required by
§125.86(c)(2)(iiit. The facility may ini-
tiate sampling and data collection ac-
tivities prior to receiving comment
from the Director.
(b) Permitting requirements. Section
316fb) requirements are implemented
for a facility through an NPDES per-
mit. As the Director, you must deter-
mine, based on the information sub-
mitted by the new facility in its permit
application, the appropriate require-
ments and conditions to include in the
permit based on the track (Track I or
Track ID the new facility has chosen to
comply with. The following require-
ments must be included in each permit:
(1) Cooling water intake structure re-
quirements. At a minimum, the permit
conditions must include the perform-
ance standards that implement the re-
quirements of §125,84(b)(T). (2). (3). (4)
and (5); §125.84(0(1). (2). (3) and (4); or
§125.84(d)(l) and (2). In determining
compliance with proportional flow re-
quirement in §§125.84(b)(3)(ii): (c)(2)(ii);
and (d)(2Hii>. the director must con-
sider anthropogenic factors (those not
considered "natural") unrelated to the
new facility's cooling water intake
structure that can influence the occur-
rence and location of a thermocline.
These include source water inflows.
other water withdrawals, managed
water uses, wastewater discharges, and
flow.'level management practices (e.g.,
some reservoirs release water from
below the surface, close to the deepest
areas).
(i) For a facility that chooses Track
I, you must review the Design and Con-
struction Technology Plan required in
§125.86(b)(4) to evaluate the suitability
335
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§125.120
40CFRCh. I (7-1-04 Edition)
and feasibility of the technology pro-
posed to minimize impingement mor-
tality and entrainment of all life
stages of fish and shellfish. In the first
permit issued, you must put a condi-
tion requiring the facility to reduce
impingement mortality and entrain-
ment commensurate with the imple-
mentation 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 need-
ed 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 re-
quired in §125.86(c)<2). evaluate the
suitability of the proposed design and
construction technologies and oper-
ational measures to determine whether
they will reduce both impingement
mortality and entrainment of all life
stages of fish and shellfish to 90 per-
cent or greater of the reduction that
could be achieved through Track I. If
you determine that restoration meas-
ures are appropriate at the new facility
for consideration of impacts other than
impingement mortality and entrain-
ment, you must review the Evaluation
of Proposed Restoration Measures and
evaluate whether the proposed meas-
ures will maintain the fish and shell-
fish in the waterbody at a substan-
tially similar level to that which would
be achieved through §125.84
-------
Environmental Protection Agency
§125.123
(o Miring zone means the zone ex-
tending from the sea's surface to .sea-
bed and extending laterally to a dis-
tance of 100 meters in all dim-1ions
from the discharge point(s) or to the
boundary of the zone of initial dilution
as) calculated by a plume model ap-
proved by the director, whichever is
greater, unless the director determines
that the more restrictive mixing zone
or another definition of the mixing
zone is more appropriate for a specific
discharge.
-------
§125.124
40 CFR Ch. I (7-1-04 Edition)
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 ma-
rine environment after application of
all possible permit conditions specified
in §125.123(d). he may not issue an
NPDBS permit which authorizes the
discharge of pollutants.
(c) If the director has insufficient in-
formation to determine prior to permit
issuance that there will be no unrea-
sonable degradation of the marine en-
vironment pursuant to §125.122, there
shall be no discharge of pollutants into
the marine environment unless the di-
rector on the basis of available infor-
mation, including that supplied by the
applicant pursuant to §125.124 deter-
mines that:
(1) Such discharge will not cause ir-
reparable harm to the marine environ-
ment during the period in which moni-
toring is undertaken, and
(2) There are no reasonable alter-
natives to the on-site disposal of these
materials, and
(3) The discharge will be in compli-
ance with all permit conditions estab-
lished 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 pollut-
ants will: (i) Following dilution as
measured at the boundary of the mix-
ing zone not exceed the limiting per-
missible 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 Cri-
teria: 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 Dump-
ing 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 bioaccumu-
lative and/or persistent impact on
aquatic life of the discharge:
(3) Contain any other conditions.
such as performance of liquid or sus-
pended particulate phase bioaccumula-
tion tests, seasonal restrictions on dis-
charge, process modifications, disper-
sion of pollutants, or schedule of com-
pliance 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 ma-
rine environment.
§ 125.124 Information required to be
submitted by applicant.
The applicant is responsible for pro-
viding information which the director
may request to make the determina-
tion required by this subpart. The di-
rector may require the following infor-
mation as well as any other pertinent
information:
(a) An analysis of the chemical con-
stituents 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 pol-
lutants 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 dis-
charge facility;
(f) Evaluation of available alter-
natives to the discharge of the pollut-
ants including an evaluation of the
possibility of land-based disposal or
disposal in an approved ocean dumping
site.
338
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Environmental Protection Agency
§129.2
PART 129—TOXIC POLLUTANT
EFFLUENT STANDARDS
Subpart A—Toxic Pollutant Effluent
Standards and Prohibitions
See.
129.1 Scope and purpose.
129.2 Definitions.
129.3 Abbreviations.
129.4 Toxic pollutants.
129.5 Compliance.
129.6 Adjustment of effluent standard for
presence of toxic pollutant in the intake
water.
129.7 Requirement, and procedure for t-stab-
lishins1 a more stringent effluent limita-
tion.
129.8 Compliance date.
129.9-129.99 [Reserved]
129.100 Alclrin dieldriu.
129.101 DDT, DDD and DDE.
129.102 Endrin.
129.103 Toxaphene.
129.101 BenziUine.
129.105 Pol.vchlorinateU Mphenyl? (PCB.si.
Ari'HuKtTY: Sees. 307. 308. 501. Federal
Water Pollution Control Act Amendments of
1972 (Pub. L. 92-500, 86 Slat. 816. (33 r.-S.C.
1251 f/ .set/.*).
8. Specific references to sec-
tions within the Act will be according
to Pub. L. 92-500 notation.
(b) Administrator means the Adminis-
trator of the Environmental Protection
Agency or any employee of the Agency
to whom the Administrator may by
order delegate the authority to carry
out his functions under section 307(a)
of the Act. or any person who shall by
operation of law be authorized to carry
out such functions.
•;e) Effluent standard means, for pur-
poses of section 307. the equivalent of
I'lftuent limitation as that term is de-
fined in section 502(11) of the Act with
the exception thai it does not include a
schedule of compliance.
(d) Prohibited means that the con-
stituent shall be absent in any dis-
charge subject to these standards, as
determined by any analytical method.
tei Permit means a permit for the dis-
charge of pollutants into navigable wa-
ters under the National Pollutant Dis-
( iiarge Elimination System established
!>.v section 402 of the Act and imple-
mented in regulations in 40 CFR parts
124 and 125.
(f) Worknifj day means the hours dur-
ing a calendar day in which a facility
discharges effluents subject to this
part.
ig) Ambient truter criterion means that
concentration of a toxic- pollutant in a
navigable water that, based upon avail-
able data, will not result in adverse im-
pact on important aquatic life, or on
consumers of such aquatic life, after
exposure of that aquatic life for periods
of time exceeding 96 hours and con-
tinuing at least- through one reproduc-
tive cycle: and will not result in a sig-
nificant risk of adverse health effects
in a large human population based on
available information such as mamma-
lian laboratory toxicity data, epide-
rniological studies of human occupa-
tional exposures, or human exposure
data, or any other relevant data.
(h) New source means any source dis-
charging a toxic pollutant, the con-
struction of which is commenced after
proposal of an effluent- standard or pro-
hibition applicable to such source if
such effluent standard or prohibition is
339
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§129.3
40 CFR Ch. I (7-1-04 Edition)
thereafter promulgated in accordance
with section 307.
(i) Existing source means any source
which is not a new source as defined
above.
(j) Source means any building, struc-
ture, facility, or installation from
which there is or may be the discharge
of toxic pollutants designated as such
by the Administration under section
307(a)(l) of the Act.
(k) Owner or operator means any per-
son who owns, leases, operates, con-
trols, or supervises a source as defined
above.
(1) Construction means any place-
ment, assembly, or installation of fa-
cilities or equipment (including con-
tractual obligations to purchase such
facilities or equipment) at the premises
where such equipment will be used, in-
cluding preparation work at such
premises.
(m) Manufacturer means any estab-
lishment engaged in the mechanical or
chemical transformation of materials
or substances into new products includ-
ing but not limited to the blending of
materials such as pesticidal products.
resins, or liquors.
(n) Process wastes means any des-
ignated toxic pollutant, whether in
wastewater or otherwise present, which
is inherent to or unavoidably resulting
from any manufacturing process, in-
cluding that which comes into direct
contact with or results from the pro-
duction or use of any raw material, in-
termediate product, finished product.
by-product or waste product and is dis-
charged into the navigable waters.
(o) Air emissions means the release or
discharge of a toxic pollutant by an
owner or operator into the ambient air
either (1) by means of a stack or (2) as
a fugitive dust, mist or vapor as a re-
sult inherent to the manufacturing or
formulating process.
(p) Fugitive dust, mist or vapor means
dust, mist or vapor containing a toxic
pollutant regulated under this part
which is emitted from any source other
than through a stack.
(q) Stack means any chimney, flue.
conduit, or duct arranged to conduct
emissions to the ambient air.
(r) Ten year 24-hour rainfall event
means the maximum precipitation
event with a probable recurrence inter-
val of once in 10 years as defined by the
National Weather Service in Technical
Paper No. 40. Rainfall Frequency Atlas of
the United States, May 1961. and subse-
quent amendments or equivalent re-
gional or State rainfall probability in-
formation developed therefrom.
(s) State Director means the chief ad-
ministrative officer of a State or inter-
state water pollution control agency
operating an approved HPDES permit
program. In the event responsibility
for water pollution control and en-
forcement is divided among two or
more State or interstate agencies, the
term State Director means the adminis-
trative officer authorized to perform
the particular procedure to which ref-
erence is made.
§129.3 Abbreviations.
The abbreviations used in this part
represent the following terms:
lb=pound (or pounds)
g=gram
LI g l=micrograms per liter (1 one-millionth
gram liter)
kg=kilogTam(s)
kkg=1000 kilogram(s)
S 129.4 Toxic pollutants.
The following are the pollutants sub-
ject to regulation under the provisions
of this subpart:
(a) Aldrin/Dieldrin—Aldrin means the
compound aldrin as identified by the
chemical name. l,2.3.4.10.10-hexachloro-
1.4.4a.5.8.8a-hexahydro-1.4 -endo-5,8-
exo-dimethanonaphthalene; "Dieldrin"
means the compound the dieldrin as
identified by the chemical name
1.2.3.4.10.10-hexachloro-6.7-epoxy-
l,4.4a.5.6.7,8,8a-octahydro-1.4-endo-5.8-
exo-dimethanonaphthalene.
(b) DDT—DDT means the compounds
DDT. ODD, and DDE as identified by
the chemical names:(DDT)-l,l.l-
trichloro-2.2-bis(p-chlorophenyl) eth-
ane and someo.p'-isomers: (DDD) or
(TDE)-!.!- dichloro - 2.2- bis( p-
chlorophenyl) ethane and some o.p'-iso-
mers: (DDE)-!,!- dichloro-2,2-bis(p-
chlorophenyl) ethylene.
(c) Endrin—Endrin means the com-
pound endrin as identified by the chem-
ical name 1,2,3,4,10.10-hexachloro-6,7-
epoxy - 1.4,4a,5.6.7.8.8a - octahydro -1,4-
endo-5.8-endodimethanonaphthalene.
340
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Environmental Protection Agency
§129.5
(d) Toxaphene—Toxaphene means a
material consisting of technical grade
chlorinated camphene having the ap-
proximate formula of CHI HK, CL and
normally containing 67 69 percent chlo-
rine by weight.
(e) Benzidine— Benzidine means the
compound benzidine and its salts as
identified by the chemical name 4.4'
diaminobiphenyl.
(f> Polychlorinated Biphenyls d'C'Bst
pnlijchlonnated biplnnnil* sPC'Bs) me.anh
a mixture of compounds composed of
the biphenyl molecule which lias neen
chlorinated to \arying degrees.
112 FR 2613. Jan. 12. 1977, ;\t rtmendtHi .il 12
KB 2620. •Jrtli 12-, 1977: t'2 FR iiwi. Feb. 1! kC7;
•5129.5 Compliance.
uiHlt Within 60 days from the date of
promulgation of any toxic pollutant ef-
fluent, standard or prohibition each
owner or operator with a discharge
subject, to that standard or prohibition
must notify the Regional Adminis-
trator (or State Director, if appro-
priate) of such discharge. Such notifi-
cation shall include such informal ion
ami follow such procedures as the Re-
gional Administrator tor State Direc-
tor, 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 ior
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 per-
mit for a discharge subject to a toxic
pollutant, effluent standard or prohibi-
tion the permitting authority shall
proceed thereon in accordance with 40
CPR part. 124 or 125. whichever is appli-
cable,
(old) Every permit- which contains
limitations based upon a toxic pollut-
ant, effluent standard or prohibition
under this part is subject to revision
following' the completion of any pro-
ceeding revising such toxic pollutant
effluent standard or prohibition regard-
less 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)(li Upon l he compliance date for
any section 307ur< toxic pollutant efflu-
ent standard or prohibition, each
owner or operator of a discharge sub-
ject to sm-li standard or prohibition
shall comply with such monitoring.
sampling, recording, siml reporting con-
ditions as the Regional Administrator
• HI- State Director, if appropriate) may
i-'quire for that discharge. Notice of
such condujons shall lie provided in
writing1 to the owner or operator.
(2) In addition to any conditions re-
quired pursuant to paragraph tduls oi
this section and i.o the extent not re-
quired 111 conditions contained in
N'PDKS permits within 60 days fol-
lowing the- close of each calendar year
each ownct or operator of a discharge
subject to any toxic standard or prohi-
bition shall report to the Regional Ad-
ministrator relevant identification
of the discharger such as name, loca-
uon of facility, discharge points, re-
reiving waters, and the industrial proc-
ess or operation emitting" the toxic pol-
iutatit: liii relevant conditions (pursu-
ant to paragraph uiul'i of this section
or to an NPDK8 permit) as to flow, sec-
tion 307(.a> toxic pollutant concentra-
tions, and section 307(ai toxic pollutant.
mass emission rate: (iii) compliance by
the discharger with such condit ions.
(3) When samples collected for anal-
ysis are composited, such samples shall
be composited in proportion to the flow
at time of collect-ion and preserved in
compliance with requirements of the
Regional Administrator (or State Di-
rector, if appropriate), but shall in-
clude at least five samples, collected at
approximately equal intervals through-
out the working dav.
341
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§129.6
40 CFR Ch. 1 (7-1-04 Edition)
Nothing in these regulations
shall preclude a Regional Adminis-
trator from requiring in any permit a
more stringent effluent limitation or
standard pursuant to section
SQKbXIXC) of the Act and implemented
in 40 CFR 125,11 and other related pro-
visions 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 Pro-
gram 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
SOKbXlMC) of the Act and implemented
in 40 CFR 124.42 and other related pro-
visions of 40 CFR part 124.
(f) Any owner or operator of a facil-
ity which discharges a toxic pollutant
to the navigable waters and to a pub-
licly owned treatment system shall
limit the summation of the mass emis-
sions from both discharges to the less
restrictive standard, either the direct-
discharge standard or the pretreatment
standard; but in no case will this para-
graph allow a discharge to the navi-
gable waters greater than the toxic
pollutant effluent standard established
for a direct discharge to the navigable
waters.
(g) In any permit hearing or other ad-
ministrative 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(bXl)(C) of the Act, the parties
thereto may not contest the validity of
any national standards established in
this part, or the ambient water cri-
terion established herein for any toxic
pollutant.
§129.6 Adjustment of effluent stand-
ard for presence of toxic pollutant
in the intake water.
(a) Upon the request of the owner or
operator of a facility discharging a pol-
lutant subject to a toxic pollutant ef-
fluent standard or prohibition, the Re-
gional Administrator (or State Direc-
tor, if appropriate) shall give credit.
and shall adjust the effluent stand-
ard! si in such permit to reflect credit
for the toxic pollut-antfs) 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 ap-
propriate) that the toxic pollutant(s)
present in the owner's or operator's in-
take 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 cal-
culated 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 estab-
lished pursuant to this section shall
also contain conditions requiring the
permittee to conduct additional moni-
toring in the manner and locations de-
termined by the Regional Adminis-
trator (or State Director, if appro-
priate) for those toxic pollutants for
which the toxic pollutant effluent
standards have been adjusted.
§ 129.7 Requirement and procedure for
establishing a more stringent efflu-
ent limitation.
(a) In exceptional cases.1 (1) Where the
Regional Administrator (or State Di-
rector, if appropriate) determines that
the ambient water criterion estab-
lished in these standards is not being
met or will not be met in the receiving
water as a result of one or more dis-
charges at levels allowed by these
standards, and
(2) Where he further determines that
this is resulting in or may cause or
contribute to significant adverse ef-
fects 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 pollut-
ant effluent limitation at a more strin-
gent level than that- required by the
342
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Environmental Protection Agency
§129.!00
standard set forth in these regulations.
Any such action shall be taken pursu-
ant/ 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 re-
gard to such more stringent effluent
limitation shall be upon the Regional
Administrator (or State Director, if ap-
propriate) as the proponent of such
more stringent effluent limitation.
(3) Evidence in such proceeding shall
include at a minimum: A.n analysis
using- data and other information to
demonstrate receiving water con-
centrations of the specified toxic pol-
lutant, projections of the anticipated
effects of the proposed modification on
such receiving water concentrations.
and the hydrologic and hydrographie
characteristics of the receiving waters
including the occurrence of dispersion
of the effluent. Detailed specifications
for presenting relevant information by
any interested party may be prescribed
in guidance documents published from
time to time, whose availability will be
announced in the FEDERAL REGISTER.
(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 Ad-
ministrator may approve or disapprove
such liniitation(s) or specify another
limitation(s) upon review of any record
of any proceedings held in connection
with the permit issuance or modifica-
tion and any other evidence available
to him. If he takes no action within
ninety days of his receipt of the notifi-
cation of the action of the permit
issuing authority and any record there-
of, the action of the State permit
issuing authority shall be deemed to be
approved.
§ 129,8 Compliance date.
(al The effluent standards or prohibi-
tions set forth herein shall be complied
with not later than one year after pro-
mulgation unless an earlier date is es-
tablished by the Administrator for an
industrial subcategory in the promul-
gation of the standards or prohibitions.
Oji Toxic pollutant effluent standard.-*
or prohibitions set forth herein shall
1'ecome enforceable under sections
307ul) and 309 of llie Act on the date es-
tablished in paragraph ta> of this sec-
tion regardless of proceedings in con-
nection with the issuance of any
NPDES permit or application therefor.
or modification or renewal thereof.
§8129.9-129.99 [Reserved)
§ 129.100 Aldrin/dieldrin.
(a; Specialised definitions, <1) Aldrin/
Dieldrin manufacturer means a manu-
facturer, excluding any source which is
exclusively an aldrin/dieldrin formu-
lator, who produces, prepares or proc-
esses technical aldrin or dieldrin or
who uses aldrin or dieldrin as a mate-
rial in the production, preparation or
processing of another synthetic organic
substance.
(2) Aldrin Ditddrin forrnuJutor means a
person who produces, prepares or proc-
esses a formulated product comprising
a- mixture of either aldrin or dieldrin
and inert materials or other diluents.
into a product intended for application
in any use registered under the Federal
Insecticide. Fungicide and Rodenticide
Act, as amended (7 U.S.C. 135, et seq.}.
(3) The ambient water criterion for
aldrin/dieldrin in navigable waters is
0.003 n gvl.
(b) Aldrin/dieldrin manufacturer-—(1)
Applicability, (is These standards or pro-
hibitions apply to:
(A) AH discharges of process wastes:
and
(Bi All discharges from the manufac-
turing areas, loading and unloading
areas, storage areas and other areas
which are subject to direct contamina-
tion by aldrin dieldrin as a result of the
manufacturing process, including but
not limited to:
(/) Storm water and other runoff ex-
cept as hereinafter provided in para-
graph
-------
§129,101
40 CFR Ch, I (7-1-04 Edition)
(2) Analytical method acceptable. Envi-
ronmental Protection Agency method
specified in 40 CFR part 136. except
that a 1-liter sample size is required to
increase the analytical sensitivity,
(3) Effluent standard—(i) Existing
sources. Aldrin or dieldrin is prohibited
in any discharge from any al drill-
dieldrin manufacturer.
(ii) New Sources. Aldrin or dieldrin is
prohibited in any discharge from any
aldrin/dieldrin manufacturer.
(c) Aldrin/dieldrin formulator- (1) Ap-
plicability, (i) These standards or prohi-
bitions apply to:
(A) All discharges of process wastes;
and
sB) All discharges from the formu-
lating areas, loading and unloading
areas, storage areas and other areas
which are subject to direct contamina-
tion by aldrin'dieldrin as a result of the
formulating process, including but not
limited to:
(?) Stormwater and other runoff ex-
cept as hereinafter provided in para-
graph (cM'lXii) of this section; and
(2) Water used for routine cleanup or
cleanup of spills.
(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) Analytical method acceptable. Envi-
ronmental Protection Agency method
specified in 40 CFR part 136, except
that a 1-liter sample size is required to
increase the analytical sensitivity.
(3) Effluent standard—(i) Existing
sources. Aldrin or dieldrin is prohibited
in any discharge from any aldrin/
dieldrin formulator.
(ii) New sources. Aldrin or dieldrin is
prohibited in any discharge from any
aldrin/dieldrin formulator.
§ 129.101 DDT, DDD and DDE.
(a) Specialised definitions. (1) DDT
Manufacturer means a manufacturer,
excluding any source which is exclu-
sively a DDT formulator, who pro-
duces, prepares or processes technical
DDT, or who uses DDT as a material in
the production, preparation or proc-
essing of another synthetic organic
substance.
(2) DDT formulator means a person
who produces, prepares or processes a
formulated product comprising a mix-
ture of DDT and inert materials or
other diluents into a product intended
for application in any use registered
under the Federal Insecticide. Fun-
gicide and Rodenticide Act. as amend-
ed (7U.S.C. 135, etseq.).
(3) The ambient water criterion for
DDT in navigable waters is 0.001 (i g-1.
(to> DDT manufacturer—(1) Applica-
bility, (i) These standards or prohibi-
tions apply to:
(A) All discharges of process wastes:
and
(B) All discharges from the manufac-
turing areas, loading and unloading
areas, storage areas and other areas
which are subject to direct contamina-
tion by DDT as a result of the manu-
facturing" process, including but not
limited to;
(I) Stormwater and other runoff ex-
cept as hereinafter provided in para-
graph (b)(l)(ii) of this section; and
(2) Water used for routine cleanup or
cleanup of spills.
(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 ex-
ceeds that from the ten year 24-hour
rainfall event.
(2) Analytical method acceptable. Envi-
ronmental Protection Agency method
specified in 40 CFB part 136, except
that a 1-liter sample size is required to
increase the analytical sensitivity.
(3! Effluent standard—(i) Existing
sources. DDT is prohibited in any dis-
charge from any DDT manufacturer,
(ii) New sources. DDT is prohibited in
any discharge from any DDT manufac-
turer.
(O DDT formulator—(1) Applicability.
(is These standards or prohibitions
apply to:
(A) All discharges of process wastes;
and
(B) All discharges from the formu-
lating areas, loading and unloading
areas, storage areas and other areas
which are subject to direct contamina-
tion by DDT as a result of the formu-
lating process, including- but not lim-
ited to:
344
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Environmental Protection Agency
§129,102
(I) Stormwater and other runoff ex-
cept as hereinafter provided in para-
graph (c)(l)(ii) of this section: and
(2) Water used for routine cleanup or
cleanup of spills,
(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 ex-
ceeds that from the ten year 24-hour
rainfall event.
(2) Analytical method acceptable. Envi-
ronmental Protection Agency method
specified in 40 CFR part 136, except
that a 1-liter sample size is required to
increase the analytical sensitivity,
(3) Effluent standard—ii) Existing
sources, DDT is prohibited in any dis-
charge from any DDT formulator.
(ii) New Sources. DDT is prohibited in
any discharge from any DDT formu-
lator.
§ 129.102 Endrin.
(a) Specialised definitions. (1) Endrin
Manufacturer means a manufacturer.
excluding any source which is exclu-
sively an endrin formulator. who pro-
duces, prepares or processes technical
endrin or who uses endrin as a material
in the production, preparation or proc-
essing of another synthetic organic
substance,
(2) Endrin Formulator means a person
who produces, prepares or processes a
formulated product comprising a mix-
ture of endrin and inert materials or
other diluents into a product intended
for application in any use registered
under the Federal Insecticide. Fun-
gicide and Rodenbicide Act, as amend-
ed (7 U.S.C. 135 et «.-«.).
(3) The ambient water criterion for
endrin in navigable waters is 0.004 p g/
1.
(bi Endrin manufacturer—(1) Applica-
bility, (i) These standards or prohibi-
tions apply to:
(A) All discharges of process wastes:
and
(B) All discharges from the manufac-
turing' areas, loading1 and unloading
areas, storage areas and other areas
which are subject to direct contamina-
tion by endrin as a result of the manu-
facturing: process, including" but not
limited to:
i,l) Stormwater and other runoff ex-
cept as hereinafter provided in para-
graph (b)ClHii) of this section; and
(2) Water used for routine cleanup or
cleanup of spills.
(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) Analytical method acceptable— En-
vironmental Protection Agency meth-
od specified in 40 CPR part 136.
(3) Effluent standard—(i) Existing
sources. Discharges from an endrin
manufacturer shall not contain endrin
concentrations exceeding an average
per working day of 1.5 ja g/1 calculated
over any calendar month; and shall not
exceed a monthly average daily loading
of 0.0006 kg-kkg of endrin produced; and
shall not exceed 7.5 (i. g/1 in a sample(s)
representing- any working day.
(ii) New sources. Discharges from an
endrin manufacturer shall not contain
endrin concentrations exceeding an av-
erage per working day of 0.1 n g/1 cal-
culated over any calendar month; and
shall not exceed a monthly average
daily loading of 0.00004 kg'kkg of
endrin produced: and shall not exceed
0.5 (i g/1 in a samplets) representing any
working day.
(iii) Mans emission standard during
shutdown of production. In computing
the allowable monthly average daily
loading figure required under the pre-
ceding paragraphs (b)(3) (i) and (ii) of
this section, for any calendar month
for which there is no endrin being man-
ufactured at any plant or facility
which normally contributes to the dis-
charge which is subject to these stand-
ards, the applicable production value
shall be deemed to be the average
monthly production level for the most
recent preceding 360 days of actual op-
eration of the plant or facility.
<'c) Endrin formulator-—(1) Applica-
bility, (i) These standards or prohibi-
tions apply to:
(A) All discharges of process wastes:
and
(B) All discharges from the formu-
lating areas, loading and unloading
areas, storage areas and other areas
345
-------
§129.103
40 CFR Ch. I (7-1-04 Edition)
which are subject to direct contamina-
tion by endrin as a result of the formu-
lating- process, including but not lim-
ited to: (1) Stormwater and other run-
off except as hereinafter provided in
paragraph (c)dKli) of this section; and
(2) water used for routine cleanup or
cleanup of spills.
(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) Analytical method acceptable— En-
vironmental Protection Agency meth-
od specified in 40 CFR part 136, except
that a 1-liter sample size is required to
increase the analytical sensitivity.
(3) Effluent standard—(i) Existing
sources, Endrin is prohibited in any dis-
charge from any endrin formulator.
(ii) New sources—Endrin is prohib-
ited in any discharge from any endrin
formulator,
(d) The standards set forth in this
section shall apply to the total com-
bined weight or concentration of
endrin, excluding any associated ele-
ment or compound.
§ 129.103 Toxaphene.
(a) Specialised definitions, (1)
Toxaphene manufacturer means a manu-
facturer, excluding any source which is
exclusively a toxaphene formulator.
who produces, prepares or processes
toxaphene or who uses toxaphene as a
material in the production, preparation
or processing of another synthetic or-
ganic substance.
(2) Toxaphene formulator means a per-
son who produces, prepares or proc-
esses a formulated product comprising
a mixture of toxaphene and inert mate-
rials or other diluents into a product
intended for application in any use reg-
istered under the Federal Insecticide,
Fungicide and Rodenticide Act. as
amended (7 U.S.C. 135. et seq.).
(3) The ambient water criterion for
toxaphene in navigable waters is 0.005 ji
g-1.
(b) Toxaphene manufacturer—d) Appli-
cability. (I) These standards or prohibi-
tions apply to:
(A) All discharges of process wastes:
and
(B) All discharges from the manufac-
turing areas, loading and unloading'
areas, storage areas and other areas
which are subject to direct contamina-
tion by toxaphene as a result of the
manufacturing process, including but
not limited to: (1) Stormwater and
other runoff except as hereinafter pro-
vided in paragraph (b)(l)(ii) of this sec-
tion: and (2) water used for routine
cleanup or cleanup of spills.
(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) Analytical method acceptable— En-
vironmental Protection Agency meth-
od specified in 40 CFR part 136.
(3) Effluent standard—d) Existing
sources. Discharges from a toxaphene
manufacturer shall not contain
toxaphene concentrations exceeding ail
average per working day of 1.5 ji g/1 cal-
culated over any calendar month; and
shall not exceed a monthly average
daily loading of 0.00003 kg/'kkg of
toxaphene produced, and shall not ex-
ceed 7,5 n g/1 in a sample(s) rep-
resenting any working day.
(ii) New sources. Discharges from a
toxaphene manufacturer shall not con-
tain toxaphene concentrations exceed-
ing an average per working day of 0.1 ji
g 1 calculated over any calendar month;
and shall not exceed a monthly average
daily loading of 0.000002 kg/kkg of
toxaphene produced, and shall not ex-
ceed 0,5 (i,l in a sample(s) representing
any working day.
(iii) Mass emission during shutdown of
production. In computing the allowable
monthly average daily loading figure
required under the preceding para-
graphs (b)(3)(i) and (ii) of this section,
for any calendar month for which there
is no toxaphene being manufactured at
any plant or facility which normally
contributes to the discharge which is
subject to these standards, the applica-
ble production value shall be deemed to
be the average monthly production
level for the most recent preceding 360
days of actual operation of the plant or
facility.
346
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Environmental Protection Agency
§129,104
Toxaphene formulator—(1) Applica-
bility, (i) These standards or prohibi-
tions apply to:
(A) All discharges of process wastes:
and
(B> All discharges from the formu-
lating areas, loading and unloading
areas, storage areas and other areas
which are subject to direct contamina-
tion by toxaphene as a result of the
formulating process, including but not
limited to: (1) Stormwater and other-
runoff except as hereinafter provided in
paragraph (cxl)(ii> of this section: and
\2) water used for routine cleanup or
cleanup of spills.
(til 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) Analytical method acceptable- En-
vironmental Protection Agency meth-
od specified in 40 CFR part 136, except
that a 1-liter sample size is required to
increase the analytical sensitivity.
(3) Effluent standards—(i) foisting
sources. Toxaphene is prohibited in any
discharge from any toxaphene formu-
lator,
(ii) New sources. Toxaphene is prohib-
ited in any discharge from any
toxaphene formulator.
(d) The standards set forth in this
section shall apply to the total com-
bined weight or concentration of
toxaphene, excluding any associated
element or compound.
§ 129.104 Benzidine,
(a! Specialized definitions, il) Ben:i
-------
§129.105
40 CFR Ch. I (7-1-04 Edition)
from the manufacturing areas, loading
and unloading areas, storage areas, and
other areas subject to direct contami-
nation by benzidine or benzidine-eon-
taining product as a result of the man-
ufacturing" process, including but not
limited to:
(1) Storm water and other runoff ex-
cept as hereinafter provided in para-
graph. (cKD(ii) of this section, and
(2) Water used for routine cleanup or
cleanup of spills.
(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 ex-
ceeds that from the ten year 24-hour
rainfall event.
(2) Analytical method acceptable, (i)
Environmental Protection Agency
method specified in 40 CFR part 136; or
-------
Environmental Protection Agency
Pt 130
(B) All discharges from the manufac-
turing: 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 cot limited to:
(J) Stormwater and other runoff ex-
cept as hereinafter provided in para-
graph tcHlKil! of this section: and
(2) Water used for routine cleanup or
cleanup of spills.
of §129.6(a>,
relating to the source of the water sup-
ply, shall be waived, and such facility
Khali be eligible to apply for a credit
under §129.6. upon a showing by the
owner or operator of such facility to
the Regional Administrator (or State
Director, if appropriate) that the con-
centration of PCBs in the intake water
supply of such facility does not- exceed
the concentration of PCBs in the re-
ceiving water body to which the plant.
discharges its effluent.
I-12 FR 6555. Feb. 2. 1977)
PART 130—WATER QUALITY
PLANNING AND MANAGEMENT
Sec,
130.0 Program summary and purpose.
130.1 Applicability
130.2 Definitions.
130.3 Water quality standards,
130,4 Water quality monitoring.
130.5 Continuing planning process.
130.6 Water qualify management plans.
.130.7 Total maximum daily loads (TMDLi
and individual water quality-based efflu-
ent limitation*.
130.8 Watei niiality report.
130.9 Desi^uiaticm
-------
§130.0
40 CFR Ch, I (7-1-04 Edition)
§ 130,0 Program summary and pur-
pose.
(a) This subpart establishes policies
and program requirements for water
quality planning, management and im-
plementation 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 main-
taining, improving and protecting
water quality while allowing States to
implement the most effective indi-
vidual programs. The process is imple-
mented jointly by EPA. the States,
interstate agencies, and areawide, local
and regional planning organizations.
This regulation explains the require-
ments of the Act, describes the rela-
tionships between the several compo-
nents of the WQM process and outlines
the roles of the major participants in
. the process. The components of the
WQM process are discussed below.
(b) Water quality standards 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 con-
tain the results of the State's analyses
and management decisions which are
necessary to control specific sources of
pollution. The plans recommend con-
trol measures and designated manage-
ment agencies (DMAs) to attain the
goals established in the State's water
quality standards.
(d) These control measures are imple-
mented by issuing permits, building*
publicly-owned treatment works
(POTWs), instituting best management
practices for nonpoint sources of pollu-
tion and other means. After control
measures are in place, the State evalu-
ates the extent of the resulting im-
provements 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 gen-
erally 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 threat-
ened in others.
(ft Present continuing planning re-
quirements serve to identify these crit-
ical water bodies, develop plans for
achieving higher levels of abatement
and specify additional control meas-
ures. Consequently, this regulation re-
flects 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 de-
signed to address these priorities. An-
nual work programs negotiated be-
tween EPA and State and interstate
agencies will reflect this emphasis.
§130.1 Applicability.
(a) This subpart applies to all State.
eligible Indian Tribe, interstate.
areawide and regional and local CWA
water quality planning and manage-
ment activities undertaken on or after
February 11, 1985 including all updates
and continuing certifications for ap-
proved Water Quality Management
(WQM) plans developed under sections
208 and 303 of the Act.
(b) Planning and management activi-
ties undertaken prior to February 11.
1985 are governed by the requirements
of the regulations in effect at the time
of the last grant award.
{50 PR 1779. Jan. 11, 1985. as amended at 54
FR 14359, Apr. 11. 1989: 59 FR 13817. Mar. 23.
1994J
8130.2 Definitions.
(a) The Act. The Clean Water Act, as
amended, 33 U.S.C. 1251 et seq.
(b) Indian Tribe. Any Indian Tribe,
band, group, or community recognized
350
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Environmental Protection Agency
§130.3
by the Secretary of the Interior and ex-
ercising governmental authority over a
Federal Indian reservation.
(ct Pollution. The man-made or man-
induced alteration of the chemical.
physical, biological, and radiological
integrity of water.
(d> Water quality standard.-; (\\'Q$).
Provisions of State or Federal law
which consist, of a designated use or
uses for the waters of the United
States and water quality criteria for
such waters based upon such uses.
Water quality standards are to protect
the public health or welfare, enhance
the quality of water and serve the pur-
poses of the Act.
-------
§130.4
40 CFR Ch. I (7-1-04 Edition)
Clean Water Act, (CWAt. Serrc tlic pur-
poses of Act (as defined in sections
101(a>(2) and 303ic) of the Act) means
that WQS should, wherever attainable.
provide water quality for the protec-
tion and propagation of fish, shellfish
and wildlife and for recreation in arid
on the water and take into consider-
ation their use and value for public
water supplies, propagation of fish.
shellfish, wildlife, recreation in and on
the water, and agricultural, industrial
and other purposes including naviga-
tion.
Such standards serve the dual purposes
of establishing the water quality goals
for a specific water body and serving" as
the regulatory basis for establishment
of water quality-based treatment con-
trols and strategies beyond the tech-
nology-based level of treatment re-
quired by sections 301(b) and 306 of the
Act. States shall review and revise
WQS in accordance with applicable reg-
ulations and, as appropriate, update
their Water Quality Management
(WQM) plans to reflect such revisions.
Specific WQS requirements are found
in 40 CPR part 131.
§ 130,4 Water quality monitoring.
(a) In accordance with section
106(e)(l), States must establish appro-
priate monitoring methods and proce-
dures (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 activi-
ties undertaken by a Tribe must be
performed in accordance with EPA's
quality assurance/quality control guid-
ance.
(b) The State's water monitoring pro-
gram shall include collection and
analysis of physical, chemical and
biological data and quality assurance
and control programs to assure sci-
entifically valid data. The uses of these
data include determining abatement
and control priorities; developing and
reviewing water quality standards.
total maximum daily loads, wasteloacl
allocations and load allocations: as-
sessing compliance with National Pol-
lutant Discharge Elimination System
(NPDES) permits by dischargers: re-
porting' information to the public
through the section 305(b) report and
reviewing' site-specific monitoring ef-
forts,
[50 FR 1779. Jan. 11. 1985, as amended at 54
FR 14359. Apr. 11, 1989]
§ 130.5 Continuing planning process.
(a) General, Each State shall estab-
lish and maintain a continuing plan-
ning process (GPP) as described under
section 303(e;<3)(A)^iH) of the Act.
Bach State is responsible for managing
its water quality program to imple-
ment the processes specified in the
continuing planning process. EPA is re-
sponsible for periodically reviewing the
adequacy of the State's CPP.
«b) Content, The State may determine
the format of its CPP as long as the
mininum requirements of the CWA and
this regulation are met. The following
processes must be described in each
State CPP, and the State may include
other processes at its discretion.
(1) The process for developing efflu-
ent limitations and schedules of com-
pliance 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 applica-
ble water quality standards In effect
under authority of section 303 of the
Act.
(2) The process for incorporating ele-
ments 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 in-
dividual water quality based effluent
limitations for pollutants in accord-
ance with section 303(d) of the Act and
§ 130.7(a) of this regulation.
(4) The process for updating and
maintaining Water Quality Manage-
ment (WQM) plans, including schedules
for revision.
(5) The process for assuring adequate
authority for intergovernmental co-
operation 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(e> of the Act.
352
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Environmental Protection Agency
§130.6
(7) The process for assuring adequate
controls over the disposition of all re-
sidual waste from any water treatment
processing.
(8) The process for developing an in-
ventory and ranking, in order of pri-
ority 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) Regional Administrator review. The
Regional Administrator shall review
approved State CPPs from time to time
to ensure that the planning processes
are consistent with the Act and this
regulation. The Regional Adminis-
trator shall not approve any permit
program under Title IV of the Act for
any State which does not have an ap-
proved continuing planning process.
quality management
§ 130.6 Water
plans.
(a) Water quality management (WQM)
plans. WQM plans consist of initial
plans produced in accordance with sec-
tions 208 and 303(e) of the Act and cer-
tified and approved updates to those
plans. Continuing1 water quality plan-
ning shall be based upon WQM plans
and water quality problems identified
in the latest 305(b) reports. State water
quality planning should focus annually
on priority issues and geographic areas
and on the development of water qual-
ity controls leading to implementation
measures. WTater quality planning di-
rected at the remova.l of conditions
placed on previously certified and ap-
proved WQM plans should focus on re-
moval of conditions which will lead to
control decisions.
(b) Use of WQM plans. WQM plans are
used to direct implementation. W7QM
plans draw upon the water quality as-
sessments to identify priority point
and nonpoint water quality problems,
consider alternative solutions and rec-
ommend control measures, including
the financial and institutional meas-
ures necessary for implementing- rec-
ommended solutions. State annual
work programs shall be based upon the
priority issues identified in the State
WQM plan.
(c) WQM plan elements. Sections 205(j).
208 and 303 of the Act specify water
quality planning requirements. The fol-
lowing plan elements shall be included
in the WQM plan or referenced as part
of the WQM plan if contained in sepa-
rate documents when they are needed
to address water quality problems.
(1) Total maximum daily loads. TMDLs
in accordance with sections 303(d) and
-------
§ 130.6
40CFRCh. I (7-1-04 Edition)
affect water quality in accordance with
section 208(b)(2)( J) of the Act.
(B) Land disposal. Identification of a
process to control the disposal of pol-
lutants on land or in subsurface exca-
vations to protect ground and surface
water quality in accordance with sec-
tion 208(b)(2XK) of the Act.
(C) Agricultural and silvicultural. Iden-
tification of procedures to control agri-
cultural and silvicultural sources of
pollution in accordance with section
208(b)<2)(F) of the Act.
(D) Mines. Identification of proce-
dures to control mine-related sources
of pollution in accordance with section
208(b)(2)(G) of the Act.
(E) Construction. Identification of
procedures to control construction re-
lated sources of pollution in accord-
ance with section 208 Dredge or fill program. Identifica-
tion and development of programs for
the control of dredge or fill material in
accordance with section 208(b)(4)(B) of
the Act,
(8) Basin plans. Identification of any
relationship to applicable basin plans
developed under section 209 of the Act.
(9) Ground water. Identification and
development of programs for control of
ground-water pollution including the
provisions of section 208(b)(2)(K) of the
Act. States are not required to develop
ground-water WQM plan elements be-
yond the requirements of section
208(b)(2)(K) of the Act. but may develop
a ground-water plan element if they de-
termine it is necessary to address a
ground-water quality problem. If a
State chooses to develop a ground-
water plan element, it should describe
the essentials of a State program and
should include, but is not limited to:
(i) Overall goals, policies and legisla-
tive authorities for protection of
ground-water.
(ii) Monitoring and resource assess-
ment programs in accordance with sec-
tion 106(e)(l) of the Act.
(iii) Programs to control sources of
contamination of ground-water includ-
ing Federal programs delegated to the
State and additional programs author-
ized 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 manage-
ment and administration including
provision of program financing, train-
ing and technical assistance, public
participation, and emergency manage-
ment.
(d) Indian Tribes. An Indian Tribe is
eligible for the purposes of this rule
and the Clean Water Act assistance
programs under 40 CFR part 35. sub-
parts A and H if:
(1) The Indian Tribe has a governing
body carrying out substantial govern-
mental duties and powers:
354
-------
Environmental Protection Agency
§130.7
(2) The functions to be exercised by
the Indian Tribe pertain to trie man-
agement and protection of water re-
sources 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 inter-
est is subject to a trust restriction on
alienation, or otherwise within the bor-
ders of an Indian reservation: and
(3) The Indian Tribe is reasonably ex-
pected 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,
. the term "water quality
standard applicable to such waters" and
"applicable water quality standards"
refer to those water quality standards
established under section 308 of the
355
-------
§130.7
40 CFR Ch. I (7-1-04 Edition)
Act, including numeric criteria, nar-
rative criteria, water-body uses, and
antidegradation requirements.
(4) The list required under
§§130.7(b)(l) and 130.7(b)(2) of this sec-
tion shall include a priority ranking
for all listed water quality-limited seg-
ments still requiring TMDLs, taking
into account the severity of the pollu-
tion and the uses to be made of such
waters and shall identify the pollut-
ants causing or expected to cause vio-
lations of the applicable water quality
standards. The priority ranking shall
specifically include the identification
of waters targeted for TMDL develop-
ment in the next two years.
(5) Bach State shall assemble and
evaluate all existing and readily avail-
able water quality-related data and in-
formation to develop the list required
by §§130.7(b)(l) 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 read-
ily available data and information
about the following categories of wa-
ters:
(is 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 cal-
culations 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 Agri-
culture, the National Oceanic and At-
mospheric 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 up-
dates of the assessment,
(6) Bach State shall provide docu-
mentation to the Regional Adminis-
trator to support the State's deter-
mination to list or not to list its wa-
ters as required by §§130.7(b>(l) and
130.7
-------
Environmental Protection Agency
§130.7
(ii) TMDLs shall be established for
all pollutants preventing or expected
to prevent attainment of water quality
standards as identified pursuant to
paragraph (b'Ml) of this section. Cal-
culations 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 re-
quiring TMDLo identified in paragraph
(b'»2) of this .section, the total max-
imum daily thermal load which cannot
be exceeded in order to assure protec-
tion and propagation of a balanced, in-
digenous population of shellfish, fish
and wildlife. Such estimates shall take
into account the normal water tem-
peratures, flow rat.es. seasonal vari-
ations, existing sources of heat input.
and the dissipative capacity of the
identified waters or parts thereof. Such
estimates shall include a calculation of
the maximum heat input that can be
made into each such part and shall in-
clude a margin of safety which takes
into account any lack of knowledge
concerning the development of thermal
water quality criteria for protection
and propagation of a balanced, indige-
nous population of shellfish, fish and
wildlife in the identified waters or
parts thereof.
(d) Submission and KPA approval, (li
Each. State shall submit biennially to
the Regional Administrator beginning
in J992 the list of waters, pollutants
causing impairment, and the priority
ranking including waters targeted for
TMDL development within the next
two years as required under paragraph
(b) of this section. For the 1992 biennial
submission, these lists are due no later
than October 22. 1992. Thereafter, each
State shall submit to EPA lists re-
quired under paragraph (b) of this sec-
tion on April 1 of every even-numbered
year. For the year 2000 submission, a
State must submit a list required
under paragraph (b) of this section only
if a court order or consent decree, or
commitment in a settlement agree-
ment dated prior to January L £000, ex-
pressly requires EPA to take action re-
lated to that State's year 2000 list. For
the year 2002 submission, a State must
submit a list required under paragraph
(b) of this section by October 1. 2002.
unless a court order, consent decree or
commitment in a settlement agree-
ment expressly requires EPA to take
an action related to that State's 2002
list prior to October 1. 2002. in which
case, the State must submit a list by
April 1. 2002. The list of waters may be
.submitted as part, of the State's bien-
nial water quality report, required by
§130.8 of this part and section 305(b) of
the CWA or submitted under separate
cover. All WLAs.LAs and TMDLs estab-
lished under paragraph
-------
§130.8
40 CFR Ch. I (7-1-04 Edition)
propagation of a balanced indigenous
population of fish, shellfish and wild-
life. However, there is no requirement
for such loads to be submitted to EPA
for approval, and establishing1 TMDLs
for those waters identified in para-
graph (b) of this section shall be given
higher priority.
[50 FR 1779. Jan. 11. 1985. as amended at 57
FR 33049. July 24, 1992: 65 FR 17170. Mar. 31.
2000; 66 FR 53048. Oct. 18. 2001]
§ 130.8 Water quality report.
(a) Each State shall prepare and sub-
mit biennially to the Regional Admin-
istrator a water quality report in ac-
cordance with section S05(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 ele-
ments to help direct all subsequent
control activities. Water quality prob-
lems identified in the 305(b) report
should be analysed through water qual-
ity management planning leading to
the development of alternative con-
trols and procedures for problems iden-
tified in the latest 305(b) report. States
may also use the 305(b) report to de-
scribe 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.
tb) Bach 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 wa-
ters 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 im-
proved water quality or will improve
water quality for the purposes of para-
graph (b)(l) of this section, and rec-
ommendations for future actions nec-
essary 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 im-
plementation costs.
(5) An assessment of the water qual-
ity of all publicly owned lakes, includ-
ing the status and trends of such water
quality as specified in section 314(a)
-------
Environmental Protection Agency
§130.10
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' ac-
tivities within the designated bound-
aries.
(c) Impact of de-designation. Once an
areawide planning agency's designation
has been withdrawn the State agency
shall assume direct responsibility for
continued water quality planning and
oversight of implementation within the
area.
fdt Designated management agencies
(DMA). In accordance with section
208(c)(l) of the Act, management agen-
cies shall be designated by the Gov-
ernor in consultation with the des-
ignated planning agency. EPA shall ap-
prove such designations unless the
DMA lacks the legal, financial and
managerial authority required under
section 208fc>(2) of the Act. Designated
management agencies shall carry out
responsibilities specified in Water
Quality Management (WQM) plans.
Areawide planning agencies shall mon-
itor DMA activities in their area and
recommend necessary plan changes
during the WQM plan update. Where
there is no designated areawide plan-
ning agency, States shall monitor DMA
activities and make any necessary
changes during the WQM plan update.
i 130.10 State submittals to EPA.
(a) The following must be submitted
regularly by the States to EPA:
(It The section 305. (Ap-
proved by OMB under 2040^0049')
(hi The Act also requires that each
State initially submit to EPA and re-
vise as necessary the following;
(1) Continuing planning process
CCPP) (303(e)>;
(2) Identification of water quality-
limited waters still requiring TMDLs
(section 303(d)>. pollutants, and the pri-
ority ranking including waters tar-
geted for TMDL development within
the next two years as required under
§130.7(b) in accordance with the sched-
ule set for in §130.7(d)(l).
i Approved by the Office of Management and
Budget under control number 2040-0071)
(3) Total maximum daily loads
• TMDLs) <303tdn: and
(4) Water quality management
(WQM) plan and certified and approved
WQM plan updates (208. 303(e)). (Para-
graph (bids, (4) approved by OMB under
the control number 2010 0004).
(c> The form and content of required
State submittals to EPA may be tai-
lored to reflect the organization and
needs of the State, as long as the re-
quirements 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 an-
nual work program is developed.
Not later than February 4. 1989.
each State shall submit to EPA for re-
view, approval, and implementation—
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, agricul-
tural and industrial uses, and the pro-
tection and propagation of a balanced
population of shellfish, fish and wild-
life, and allow recreational activities
:n 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
-------
§130.10
40 CFR Ch. I (7-1-04 Edition)
which is believed to be preventing1 or
impairing such water quality and the
amount of each such toxic pollutant
discharged by each such source.
(Approved by the Office of Management and
Budget under control number 2040-0152)
(4) For the purposes of listing waters
under §130.10 on the
grounds that the applicable standard is
not achieved or expected to be achieved
due entirely or substantially to dis-
charges from point sources.
(i) Existing or additional water qual-
ity-baaed limits on one or more point
sources would result in the achieve-
ment of an applicable water quality
standard for a toxic pollutant; or
(ii) The discharge of a toxic pollutant
from one or more point sources, regard-
less of any nonpoint source contribu-
tion of the same pollutant, is sufficient
to cause or is expected to cause an ex-
cursion above the applicable water
quality standard for the toxic pollut-
ant.
(6) Each state shall assemble and
evaluate all existing and readily avail-
able water quality-related data and in-
formation and each state shall develop
the lists required by paragraphs (d)(l).
(2). and (3') of this section based upon
this data and information. At a min-
imum, all existing and readily avail-
able water quality-related data and in-
formation includes, but is not limited
to. all of the existing and readily avail-
able data about the following cat-
egories of waters in the state:
(i) Waters where fishing or shellfish
bans ami/or advisories are currently in
effect or are anticipated.
(ii) Waters where there have been re-
peated 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 restric-
tions on water sports or recreational
con Lact,
(iv) Waters identified by the state in
its most recent, state section 305(b) re-
port as either "partially achieving" or
"not achieving" designated uses.
(v) Waters identified by the states
under section 303(d) of the CWA as wa-
ters needing water quality-based con-
trols.
(vi> Waters identified by the state as
priority waterbodies. (State Water
Quality Management plans often in-
clude 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 indi-
cate potential or actual exceedances of
water quality criteria due to toxic pol-
lutants from an industry classified as a
primary industry in appendix A of 40
CFR part 122.
(viii) Waters for which- effluent tox-
icity test results indicate possible or
actual exceedances of state water qual-
ity standards, including narrative "free
from" water quality criteria or EPA
water quality criteria where state cri-
teria are not available.
(ix) Waters with primary industrial
major dischargers where dilution anal-
yses indicate exceedances of state nar-
rative or numeric water quality cri-
teria (or EPA water quality criteria
where state standards are not avail-
able) for toxic, pollutants, ammonia, or
chlorine. These dilution analyses must
be based on estimates of discharge lev-
els derived from effluent guidelines de-
velopment documents. NPDES permits
or permit application data (e.g., Form
2C). Discharge Monitoring Reports
-------
Environmental Protection Agency
§130.10
where state water quality criteria are
not available) for toxic pollutants, am-
monia, or chlorine. These dilution
analyses must be based upon data from
NPDES permits or permit applications
(,e.81.. Form 2C), Discharge Monitoring
Reports (DMRs), or other available in-
formation.
(xi) Waters with facilities not in-
cluded in the previous two categories
such as major POTWs, and industrial
minor dischargers where dilution anal-
yses indicate exceedances of numeric
or narrative state water quality cri-
teria (or EPA water quality criteria
where state water quality criteria are
not available) for toxic pollutants, am-
monia, or chlorine. These dilution
analyses must be based upon estimates
of discharge levels derived from efflu-
ent guideline development documents.
NPDES permits or permit application
data, Discharge Monitoring Reports
(DMRs). or other available informa-
tion.
(xii) Waters classified for uses that
will not support the "fishable:8wim-
mable" 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 uni-
versities. These organizations and
groups should be actively solicited for
research they may be conducting or re-
porting. For example, university re-
searchers, the United States Depart-
ment of Agriculture, the National Oce-
anic and Atmospheric Administration.
the United States Geologrical 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
uonpoint sources in the America's Clean
Water: The States' Nonpoint Source As-
sessments 1985 (Association of State and
Interstate Water Pollution Control Ad-
ministrators (ASIWPCA)) or waters
identified as impaired or threatened in
a nonpoint source assessment sub-
mitted by the state to EPA under sec-
tion 319 of the Clean Water Act.
< A) of CERCLA.
(7) Each state shall provide docu-
mentation to the Regional Adminis-
trator to support the state's deter
mination to list or not to list waters as
required by paragraphs (d)fl). edit2) and
A description of the data and in-
formation used to identify waters and
sources including a description of the
data and information used \>y the state
as required by paragraph (d)(6i of this
section;
(iii) A rationale for any decision not
to use any one of the categories of ex-
isting and readily available data re-
quired by paragraph
-------
§130.11
40 CFR Ch. I (7-1-04 Edition)
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 im-
plement the requirements of CWA sec-
tion 304(1) (1) and (2) in such state.
(10) If the Regional Administrator
disapproves a state's decision with re-
spect to one or more of the waters re-
quired under paragraph (d) (1). (2), or
<3) of this section, or one or more of the
individual control strategies required
pursuant to section 304(1X1 )(D). then
not later than June 4, 1989. the Re-
gional Administrator shall distribute
the notice of approval or disapproval
given under this paragraph to the
appropriate state Director. The Re-
gional Administrator shall also publish
a notice of availability, in a daily or
weekly newspaper with state-wide cir-
culation or in the FEDERAL REGISTER,
for the notice of approval or disap-
proval. The Regional Administrator
shall also provide written notice to
each discharger identified under sec-
tion 304d)(l)(C), that EPA has listed
the discharger under section
304(1K1)(C). The notice of approval and
disapproval shall include the following:
(i) The name and address of the EPA
office that reviews the state's submit-
tals.
Sii) A brief description of the section
304(1) process.
(iii) A list of waters, point sources
and pollutants disapproved under this
paragraph.
(iv) If the Regional Administrator de-
termines that a state did not provide
adequate public notice and an oppor-
tunity to comment on the lists pre-
pared under this section, or if the Re-
gional Administrator chooses to exer-
cise his or her discretion, a list of wa-
ters, point sources, or pollutants ap-
proved 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 peti-
tions or comments received under para-
graph (dulO) of this section. Notice
shall be given in the same manner as
notice described in paragraph
-------
Environmental Protection Agency
§130.12
and to manage waste treatment con-
struction grants for small commu-
nities.
EPA. States, areawide Agencies.
interstate agencies, local and Regional
governments, and designated man-
agement agencies (DMAs) are joint
participants in the water pollution
control program. States may enter into
contractual arrangements or inter-
governmental agreements with other
agencies concerning the performance: of
water quality planning and manage-
ment tasks. Such arrangements shall
reflect the capabilities of the respec-
tive agencies and shall efficiently uti-
lise available funds and funding" eligi-
bilities to meet Federal requirements
commensurate with State and local
priorities. State work programs under
section 205ij> shall be developed jointly
with local. Regional and other com-
prehensive planning organizations.
5 130.12 Coordination with other pro-
grams.
of the Act. no NPDES
permit may be issued which is in con-
flict with an approved Water Quality
Management iWQM) plan. Where a
State has assumed responsibility for
the administration of the permit pro-
gram under section 402. it shall assure
consistency with the WQM plan.
(b) Relationship to the municipal
construction grants program. In ac-
cordance with sections 205(js, 216 and
303 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 dele-
gated 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 ha.s been designated and a WQM
plan approved, section 201 construction
grant funds may be awarded only to
those agencies for construction of
treatment works ia conformity with
i-he approved WQM plan.
(c) Relationship to Federal activi-
ties—Each department, agency or in-
strumentality of the executive, legisla-
tive and judicial branches of the Fed-
eral Government having jurisdiction
over any property or facility or en-
gaged 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 author-
ity, and process and sanctions respect-
ing the oontrot and abatement of wafer
pollution in the same manner and ex-
tent as any non-governmental entity in
accordance with section 313 of the
CWA.
363
-------
§130.15
40 CFR Ch, 1 (7-1-04 Edition)
§ 130.15 Processing application for In-
dian tribes.
The Regional Administrator shall
process an application of an Indian
Tribe submitted under §130.6(d) in a
timely manner. He shall promptly no-
tify the Indian Tribe of receipt of the
application.
[54 PR 14360, Apr. 11. 1989, as amended at, 59
PR 13818, Mar. 23, 1994]
PART 131—WATER QUALITY
STANDARDS
Subpart A—Genera! Provisions
Sec.
131.1
131.2
131.3
131.4
131.5
131.6
Scope.
Purpose.
Definitions.
State authority.
EPA authority.
Minimum requirements for water
quality standards submission,
131.7 Dispute resolution mechanism.
131.8 Requirements for Indian Tribes to ad-
minister a water quality standards pro-
gram.
Subpart B—Establishment of Water Quality
Standards
131.10 Designation of uses.
131.11 Criteria.
131.12 Antideg'radation policy.
131,13 General policies.
Subpart C—Procedures for Review and
Revision of Water Quality Standards
131.20 State review and revision of water
quality standards.
131.21 EPA review and approval of water
quality standards.
131.22 EPA promulgation of water quality
standards,
Subpart D—Federally Promulgated Water
Quality Standards
131.31 Arizona.
131.32 Pennsylvania.
131.33 Idaho.
131.34 Kansas.
131.35 Colville Confederated Tribes Indian
Reservation.
131.36 Toxics criteria for those states not
complying with Clean Water Act section
303(o»S2)(B).
131.37 California.
131.38 Establishment of numeric criteria for
priority toxic pollutants for the State of
California.
131.40 Puerto Rico,
AUTHORITY: 33 U.S.C. 1251 at scg.
SOTHCK: 48 FR 51405. Nov. 8. 1983, unless
otherwise noted.
Subpart A—General Provisions
§ 131.1 Scope.
This part describes the requirements
and procedures for developing, review-
ing, revising, and approving water
quality standards by the States as au-
thorized by section 303(c) of the Clean
Water Act. Additional specific proce-
dures for developing, reviewing, revis-
ing, and approving water quality stand-
ards 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 CPR part 132.
are provided in 40 CPR part 132,
[60 FR 15386. Mar, 23. 1995]
§ 131.2 Purpose.
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 pur-
poses of the Act" (as defined in sections
10lca)(2) and 303(c) of the Act) means
that water quality standards should,
wherever attainable, provide water
quality for the protection and propaga-
tion 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, propaga-
tion of fish, shellfish, and wildlife,
recreation in and on the water, and ag-
ricultural, industrial, and other pur-
poses including navigation.
Such standards serve the dual purposes
of establishing the water quality goals
for a specific water body and serve as
the regulatory basis for the establish-
ment of water-quality-based treatment
controls and strategies beyond the
technology-based levels of treatment
required by sections 301(b! and 306 of
the Act.
364
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Environmental Protection Agency
§131,4
§131.3 Definitions.
.
(ID Water quality limited segment
means any segment where it is known
that water quality does not meet appli-
cable water quality standards, and or is
not expected to meet applicable water
quality standards, even after the appli-
cation of the technology-bases effluent
limitations required by sections 301(b)
and 306 of the Act.
(i) Water quality standards are provi-
sions of State or Federal law which
consist of a designated use or uses for
the waters of the United States and
water quality criteria for such waters
based upon such uses, Water quality
standards are to protect the public
health or welfare, enhance the quality
of water and serve the purposes of the
Act.
(ji State* include: The 50 States, the
District of Columbia. Guam, the Com-
monwealth of Puerto Rico. Virgin Is-
lands, American Samoa, the Trust Ter-
ritory of the Pacific Islands, the Com-
monwealth of the Northern Mariana
Islands, and Indian Tribes that EPA
ueterminevs to be eligible for purposes
of water quality standards program.
(k) Fedora! Indian Reservation, Indian
K.tnse.rru1it>n, or Reservation means all
land within the limits of any Indian
reservation under the jurisdiction of
the United States Government, not-
withstanding' the issuance of any pat-
ent, and including rights-of-way run-
ning' through the reservation."
(1) Indian Tribe or Tribe means any In-
dian Tribe, band, group, or community
recognized by the Secretary of the In-
terior and exercising governmental au-
thority over a Federal Indian reserva-
tion.
148 FR 51405. Nov. 8. 1983, as amended at 56
FR 64893. Dec, 12. 1991: 59 FE 64344. Dec. 14.
1994]
§ 131.4 State authority.
(a) States ias defined in §131.3) are re-
sponsible 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. Con-
sistent with section 101(g) and 518(a) of
the Clean Water Act. water quality
standards shall not be construed to su-
persede or abrogate rights to quan-
tities of water.
(ta) States (as defined in §131,3) may
issue certifications pursuant to the re-
quirements of Clean Water Act section
401. Revisions adopted by States shall
be applicable for use in issuing State
certifications consistent with the pro-
visions 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 pur-
poses of certifications conducted under
Clean Water Act section 401.
[56 FE 64893. Dec. 12. 1991. as amended at 59
FR 64344, Dec, 14. 1994]
365
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§131.5
40 CFR Ch. I (7-1-04 Edition)
S 131,5 EPA authority.
(a> Under section 303 of the Act.
EPA is to review and to approve or dis-
approve State-adopted water quality
standards. The review involves a deter-
mination 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 adopt-
ing 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 sci-
entific 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 de-
fined in 40 CFR 132.2) to conform to
section 118 of the Act, the require-
ments of 40 CFR part 132.
(b) If EPA determines that the
State's or Tribe's water quality stand-
ards are consistent with the factors
listed in paragraphs (a)Q> through
(a)(5> of this section, EPA approves the
standards. EPA must disapprove the
State's or Tribe's water quality stand-
ards 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)(l) through (a)<5) of
this section. EPA may also promulgate
a new or revised standard when nec-
essary 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 sec-
tion 401 in any case where a State or
interstate agency has no authority for
issuing such certifications,
[48 PH 51405. Nov. 8, 1983. as amended at 56
PR 64894. Dec. 12. 1991; 60 FR 15387. Mar. 23.
1995]
S 131.6 Minimum requirements for
water quality standards submis-
sion.
The following elements must be in-
cluded 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
303tc)(2) of the Act.
(b) Methods used and analyses con-
ducted to support water quality stand-
ards revisions.
(O Water quality criteria sufficient
to protect the designated uses.
(d) An antidegradation policy con-
sistent with §131.12.
(e) Certification by the State Attor-
ney 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 ade-
quacy 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.
§ 131.7 Dispute resolution mechanism.
(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 con-
sequences;
(2) The dispute is between a State (as
defined in §131.3
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Environmental Protection Agency
§131.7
(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 re-
quest EPA to resolve any dispute
which satisfies the criteria of para-
graph (b) of this section. Written re-
quests for EPA involvement should be
submitted to the lead Regional Admin-
istrator and must include;
(1) A concise statement of the unrea-
sonable consequences that are alleged
to have arisen because of differing
water quality standards:
(2) A concise description of the ac-
tions 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 al-
leged unreasonable consequences: and
(5) A statement of the relief sought
from the alleged unreasonable con-
sequences.
(d) Where, in the Regional Adminis-
trator's judgment. EPA involvement is
appropriate based on the factors of
paragraph (b) of this section, the Re-
gional Administrator shall, within 30
days, notify the parties in writing that
he'she is initiating an EPA dispute res-
olution action and solicit their written
response. The Regional Administrator
shall also make reasonable efforts to
ensure that other interested individ-
uals or groups have notice of this ac-
tion. Such efforts shall include but, not
be limited to the following1:
(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 un-
reasonable 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 news-
letters, 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 agree-
ment that resolves the dispute or es-
tablishes a mechanism for resolving a
dispute, EPA shall defer to this agree-
ment 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 com-
bination of the following options:
(1) Mediation, The Regional Adminis-
trator may appoint a mediator to me-
diate the dispute. Mediators shall be
EPA employees, employees from other
Federal agencies, or other individuals
with appropriate qualifications.
(11 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 sec-
tion 518(d). shall normally be pursued
as a first effort.
(ii) Mediators shall act as neutral
facilitators whose function is to en-
courage communication and negotia-
tion between all parties to the dispute.
(iii) Mediators may establish advi-
sory panels, to consist in part of rep-
resentatives 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 con-
sultation with the parties.
(v) If formal public hearings are held
in connection with the actions taken
under this paragraph. Agency require-
ments at. 40 CFR 25.5 shall be followed.
(2) Arbitration. Where the parties to
the dispute agree to participate in the
dispute resolution process, the Re-
gional Administrator may appoint an
arbitrator or arbitration panel to arbi-
trate the dispute. Arbitrators and
panel members shall be EPA employ-
ees, employees from other Federal
agencies, or other individuals with ap-
propriate qualifications. The Regional
administrator shall select as arbitra-
tors and arbitration panel members in-
dividuals who are agreeable to all par-
ties, are knowledgeable concerning the
requirements of the water quality
standards program, have a basic under-
standing of the political and economic
interests of Tribes and States involved.
367
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§131.7
40 CFR Ch. 1 (7-1-04 Edition)
and are expected to fulfill the duties
fairly and impartially.
u) The arbitrator or arbitration
panel snail conduct one or more pri-
vate or public meetings with the par-
ties and actively solicit information
pertaining to the effects of differing
water quality permit requirements on
upstream ar.d 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
standards, and other factors relevant
to the dispute, such as whether pro-
posed water quality criteria are more
stringent than necessary to support
designated uses, more stringent than
natural background water quality or
whether designated uses are reasonable
given natural background water qual-
ity.
(li) Following consideration of rel-
evant factors as defined in paragraph
(f)(2)(i) of this section, the arbitrator
or arbitration panel shall have the au-
thority and responsibility to provide
all parties and the Regional Adminis-
trator with a written recommendation
for resolution of the dispute. Arbitra-
tion panel recommendations shall, in
general, be reached by majority vote.
However, where the parties agree to
binding arbitration, or where required
by the Kegional Administrator, rec-
ommendations of such arbitration pan-
els may be unanimous decisions. Where
binding or non-binding arbitration pan-
els cannot reach a unanimous rec-
ommendation 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 ex partc communications pertaining
to the dispute. Federal employees who
are arbitrators or arbitration panel
members shall be neutral and shall not
be predisposed for or against the posi-
tion of any disputing party based on
any Federal Trust responsibilities
which their employers may have with
respect to the Tribe. In addition, arbi-
trators or arbitration panel members
who are Federal employees shall act
independently from the normal hier-
archy within their agency.
(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 rec-
ommendation.
ivi) The procedure and schedule for
arbitration of individual disputes shall
be determined by the arbitrator or ar-
bitration panel in consultation with
parties.
through (f)(2)(vii> of this section.
tg) Definitions, For the purposes of
this section:
(1) Dispute Resolution Mechanism
means the EPA mechanism established
pursuant to the requirements of Clean
Water Act section 518(e) for resolving
368
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Environmental Protection Agency
§131.8
unreasonable consequences that arise
as a result, of differing water quality
standards that may be set by States
and Indian Tribes located on common
bodies of water,
(2) Parties to a State-Tribal dispute
include the State and the Tribe and
may. at the discretion of the Regional
Administrator, include an NPDES per-
mittee, citizen, citizen group, or other
affected entity,
[56 PR 64894. Dec, 12. 1991. as amended at 59
FR 64344, Dec. 14. 19941
§ 131.8 Requirements for Indian Tribes
to administer a water quality stand-
ards program.
(a) The Regional Administrator, as
determined based on OMB Circular A-
105. may accept and approve a tribal
application for purposes of admin-
istering a water quality standards pro-
gram 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 :
369
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§131.10
40 CFR Ch. I (7-1-04 Edition)
(ii) A list of existing environmental
or public health programs adminis-
tered 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 responsi-
bility for establishing, reviewing, im-
plementing 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 ad-
dress how the Tribe will obtain the
funds to acquire the administrative
and technical expertise.
(5) Additional documentation re-
quired 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 sub-
mitted in a previous application,
(O Procedure for processing an In-
dian 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 appro-
priate notice. Notice shall;
(i) Include information on the sub-
stance and basis of the Tribe's asser-
tion of authority to regulate the qual-
ity 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 consid-
eration 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 re-
quirements 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.
[56 FR 64895. Dec. 12. 1991, as amemled at 59
FR 64344, Dec. 14. 1994]
Subpart B—Establishment of Water
Quality Standards
§ 131.10 Designation of uses.
(as Each State must specify appro-
priate water uses to be achieved and
protected. The classification of the wa-
ters of the State must take into con-
sideration 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 stand-
ards of downstream waters and shall
ensure that its water quality standards
provide for the attainment and mainte-
nance of the water quality standards of
downstream waters.
(O States may adopt sub-categories
of a use and set the appropriate cri-
teria 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 re-
quired under sections 301(b) and 306 of
370
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Environmental Protection Agency
§131,11
the Act and cost-effective and reason-
able best management practices for
nonpoint source control.
(e) Prior to adding or removing" any
use. or establishing sub-categories of a
use. the State snail 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 requir-
ing: less stringent water quality cri-
teria. If seasonal uses are adopted.
water quality criteria should be ad-
justed to reflect the seasonal uses,
however, such criteria shall not pre-
clude the attainment, and maintenance
of a more protective use in another
season,
(g) States may remove a designated
use which is not an existing use, as de-
fined in §131.3. or establish sub-cat-
egories of a use if the State can dem-
onstrate that attaining the designated
use is not feasible because:
(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. un-
less these conditions may be com-
pensated for by the discharge of suffi-
cient volume of effluent discharges
without violating State water con-
servation requirements to enable uses
to be met: or
(3) Human caused conditions or
sources of pollution prevent the at-
tainment of the use and cannot he
remedied or would cause more en-
vironmental damag-e 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 fea-
sible to restore the water body to its
original condition or to operate such
modification in a way that would re-
sult in the attainment of the use: or
tS) 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 substan-
tial 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 im-
plementing effluent limits required
under sections 301tb) 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 at-
tainability analysis as described in
§131.3(g) whenever:
(1) The State designates or has des-
ignated uses that do not include the
uses specified in section 101(a>(2> of the
Act, or
(2) The state wishes to remove a des-
ignated use that is specified in section
101(a)(2> of the Act or to adopt
riubcategori.es of uses specified in sec-
tion 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,
§ 131.11 Criteria.
(ai Inclusion of pollutants: (H States
must adopt those water quality cri-
teria that protect the designated use.
Such criteria must be based on sound
scientific rationale and must contain
sufficient parameters or constituents
to protect the designated use. For wa-
ters with multiple use designations.
the criteria shall support the most sen-
sitive use,
(2) Toxic pollutants. States must re-
view water quality data and informa-
tion on discharges to identify specific-
water bodies where toxic pollutants
may be adversely affecting water qual-
ity or the attainment of the designated
water use or where the levels of toxic-
pollutants are at a level to warrant
concern and must adopt criteria for
371
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§131.12
40 CFR Ch. I (7-1-04 Edition)
such toxic pollutants applicable to the
water body sufficient to protect the
designated use. Where a State adopts
narrative criteria for toxic pollutants
to protect designated uses, the State
must provide information identifying
the method by which the State intends
to regulate point source discharges of
toxic pollutants on water quality lim-
ited segments based on such narrative
criteria. Such information may be in-
cluded as part of the standards or may
be included in documents generated by
the State in response to the Water
Quality Planning and Management
Regulations (40 CFR part 35).
(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 re-
flect site-specific conditions; or
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Environmental Protection Agency
§131.21
(t» Public participation. Tint State
shall hold a public hearing for the pur-
posse of reviewing water quality stand-
ards, in accordance with provisions of
State law. EPA's water quality man-
agement regulation (40 CFR 130.3(bn6i»
and public participation regulation (10
CFR part. 251. The proposed water qual-
ity standards revision and supporting'
analyses shall be made available to the
public prior to the hearing,
(O Jubmittal to ETA. The State shall
submit tlie results of the review, any
supporting analysis for the use attain-
ability analysis, the methodologies
used for site-specific criteria develop-
ment, any general policies applicable
to water quality standards and any re-
visions of the standards to the Re-
gional Administrator for review and
approval, within 30 days of the final
State action to adopt and certify the
revised standard, or if no revisions are
made as a result of the review, within
30 days of the completion of the review.
§ 131,21 EPA review and approval of
water quality standards,
(a) After the State submits its offi-
cially adopted revisions, the Regional
Administrator shall either:
(1) Notify the state within 60 days
that the revisions are approved, or
<2> Notify the .-itate within 90 days
that the revisions are disapproved.
Such notification of disapproval shall
specify the changes needed to assure
compliance with the requirements ot
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 ap-
proval or disapproval of a State wafer
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 de-
fined in 40 CFR 132.2). 40 CFR part 132.
ic) How do ] determine which water
quality standard:-' are applicable for pur-
poses of the Act? You may determine
which water quality standards are ap-
plicable water quality standards for
purposes of the Act from the following
table:
: Then—
I Unless or until—
(l) A State or authorised Tribe
has adopted a water quality
standard that is effective
ynder State or Tribal law
and has been submitted to
EPA before May 30, 2000..
. .the State or Tribe's water
quality standard is the ap-
plicable water quality stand-
ard for purposes of the
Act
.. EPA has promulgated a
more stringent water quality
standard for the State or
Tribe that is in effect
which case—
.. the EPA-promulgated
water quality standard is
the applicable water quality
standard for ourposes of
the Act until EPA withdraws
the Federal water quality
standard.
(2) A State or authorized Tribe
adopts a water quality stand-
ard that goes into effect
under State or Tribal law on
or alter May 30. 2000. .
. once EPA approves that
water quality standard. -t
becomes the applicable
water quality standard for
purposes o1 the Act. .
EPA has promulgated a
more stringent water quality
standard for the State or
Tribe that is in effect
.. the EPA promulgated
water quality standard is
the applicable water quality
standard for purposes of
the Act until EPA withdraws
the Federal water quality
standard.
(d) When do I use the applicable water
quality standards identified in paragraph
(c) above?
Applicable water quality standards
for purposes of the Act are the min-
imum standards which must be used
when the CWA and regulations imple-
menting the CWA refer to water qual-
ity standards, for example, in identi-
fying impaired waters and calculating
TMDLs under section 303(d). developing
NPDES permit limitations under sec-
tion 301(b)(l)(C). evaluating- proposed
discharges of dredged or fill material
under section 404. and in issuing' cer-
tifications under section 401 of the Act.
(e) For how long does an applicable
wafer quality standard for purposes of the
Act remain the applicable water quality
standard for purposes of the Act?
A State or authorized Tribe's appli-
cable water quality standard for pur-
poses of the Act remains the applicable
standard until EPA approves a change.
373
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§131.22
40 CFR Ch. ! (7-1-04 Edition)
deletion, or addition to thai, water
ciuality standard, or until EPA promul-
gates a more stringent water tiuality
standard.
if) How can 1 find out what the appli-
cable, standards are for purposes of the
Act?
In each Regional office, EPA main-
tains a docket system for the States
and authorized Tribes in that Region.
available to the public, identifying the
applicable water quality standards for
purposes of the Act.
[48 FR 51405. Nov. 8. 1983. as amended at 60
FR 15387. Mar. 23. 1995: 65 FR 24653. Apr. 27,
2000]
§131.22 EPA promulgation of water
quality standards.
(a) If the State does not adopt the
changes specified by the Regional Ad-
ministrator within 90 days after notifi-
cation of the Regional Administrator's
disapproval, the Administrator shall
promptly propose and promulgate such
standard.
(b) The Administrator may also pro-
pose and promulgate a regulation, ap-
plicable to one or more States, setting
forth a new or revised standard upon
determining such a standard is nec-
essary to meet the requirements of the
Act.
(c) In promulgating water quality
standards, the Administrator is subject
to the same policies, procedures, anal-
yses, and public participation require-
ments established for States in these
regulations.
Subpart D—Federally Promulgated
Water Quality Standards
§ 131.31 Arizona.
(a) [Reserved]
(b) The following waters have, in ad-
dition to the uses designated by the
State, the designated use of fish con-
sumption 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):
COLORADO MAIN STEM RIVER
BASIN:
Hualapai Wash
MIDDLE GILA RIVER BASIN:
Ayua Fria River (Camel-back Road to
Avondale WWTP)
Galena Gulch
Gila River (Felix Road to the Salt
River)
Queen Creek (Headwaters to the Su-
perior WWTP)
Queen Creek (Below Potts Canyon)
SAN PEDRO RIVER BASIN:
Copper Creek
SANTA CRUZ RIVER BASIN:
Agua Caliente Wash
Nogales Wash
Sonoita Creek (Above the town of
Patagonia)
Tanque Verde Creek
Tinaja Wash
Davidson Canyon
UPPER GILA RIVER BASIN
Chase Creek
(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 imple-
ment a monitoring program to assess
attainment of the water quality stand-
ard.
(Sec. 303. Federal Water Pollution Control
Act. as amended, 33 U.S.C. 1313, 86 Stat. 816
et seq., Pub. L. 92-500; Clean Water Act, Pub.
L. 92-500, as amended: 33 U.S.C. 1251 et seq.)
[41 FR 25000. June 22. 1976; 41 FR 48737, Nov.
5. 1976. Redesignated and amended at 42 PR
56740. Oct. 28. 1977. Further redesignated and
amended at 48 FR 51408. Nov. 8. 1983; 61 FR
20693. May 7, 1996; 68 FR 62744. Nov. 6. 2003]
S 131.32 Pennsylvania.
(a) Aniidegradation policy. This
antidegradation policy shall be appli-
cable to all waters of the United States
within the Commonwealth of Pennsyl-
vania, including wetlands.
(1) Existing in-stream uses and the
level of water quality necessary to pro-
tect the existing uses shall be main-
tained and protected.
(2) Where the quality of the waters
exceeds levels necessary to support
propagation of fish, shellfish, and wild-
life 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
374
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Environmental Protection Agency
§131.33
important economic or serial develop-
ment- in the area in which the waters
are located. In allowing such degr.wla-
Lion or lower water quality, the Com-
monwealth shall assure water quality
adequate to protect existing' uses fully,
Further, the Commonwealth shall as-
sure that there shall he achieved the
highest statutory and regulatory re-
quirements for all new and exi.-rting
point sources and all cost-effective and
reasonable best management practices
for ncmpomt sources.
(3) Where high quality waters are
identified as constituting an out-
standing National resource, such as
waters of National and Scale parks and
wildlife refuges and water of excep-
tional recreational and ecological sig-
nificance, that water quality shall be
maintained and protected.
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